{"id":231006,"date":"2011-05-13T00:00:00","date_gmt":"2011-05-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/balchandra-l-jarkiholi-ors-vs-b-s-yeddiyurappa-ors-on-13-may-2011"},"modified":"2016-01-12T07:01:09","modified_gmt":"2016-01-12T01:31:09","slug":"balchandra-l-jarkiholi-ors-vs-b-s-yeddiyurappa-ors-on-13-may-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/balchandra-l-jarkiholi-ors-vs-b-s-yeddiyurappa-ors-on-13-may-2011","title":{"rendered":"Balchandra L Jarkiholi & Ors vs B.S.Yeddiyurappa & Ors on 13 May, 2011"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Balchandra L Jarkiholi & Ors vs B.S.Yeddiyurappa & Ors on 13 May, 2011<\/div>\n
Bench: Altamas Kabir, Cyriac Joseph<\/div>\n
                                                        REPORTABLE\n\n\n\n\n\n              IN THE SUPREME COURT OF INDIA\n\n\n\n                  CIVIL APPELLATE JURISDICTION\n\n\n\n          CIVIL APPEAL NOs.4444-4476     OF 2011\n\n      (Arising out of SLP(C)Nos.33123-33155 of 2010)\n\n\n\n\n\nBalchandra L. Jarkiholi & Ors.           ... Appellants  \n\n\n\n\n\n           Vs.\n\n\n\n\n\nB.S. Yeddyurappa & Ors.                  ... Respondents\n\n\n\n\n\nWITH C.A.Nos...4522-4554\/2011 @ SLP(C)Nos. 33185-\n\n33217 of 2010 and C.A.Nos...4477-4509\/2011 @ \n\nSLP(C)Nos.33533-33565 of 2010\n\n\n\n\n\n                      J U D G M E N T\n<\/pre>\n
ALTAMAS KABIR, J.\n<\/p>\n
1.     Leave granted.\n<\/p>\n
                                                                                        2<\/span><\/p>\n
2.    All   the   above-mentioned   appeals   arise   out   of <\/p>\n
the   order   dated   10th  October,   2010,   passed   by   the <\/p>\n
Speaker of the Karnataka State Legislative Assembly <\/p>\n
on Disqualification Application No.1 of 2010, filed <\/p>\n
by   Shri   B.S.   Yeddyurappa,   the   Legislature   Party <\/p>\n
Leader   of   the   Bharatiya   Janata   Party   in   Karnataka <\/p>\n
Legislative   Assembly,   who   is   also   the   Chief <\/p>\n
Minister of the State of Karnataka, on 6th  October, <\/p>\n
2010,   under   Rule   6   of   the   Karnataka   Legislative <\/p>\n
Assembly   (Disqualification   of   Members   on   Ground   of <\/p>\n
Defection)         Rules,           1986,         against           Shri               M.P.\n<\/p>\n
Renukacharya   and   12   others,   claiming   that   the   said <\/p>\n
respondents,   who   were   all   Members   of   the   Karnataka <\/p>\n
Legislative Assembly, would have to be disqualified <\/p>\n
from   the   membership   of   the   House   under   the   Tenth <\/p>\n
Schedule of the Constitution of India.  In order to <\/p>\n
understand         the         circumstances             in         which              the <\/p>\n
Disqualification   Application   came   to   be   filed   by <\/p>\n
Shri   Yeddyurappa   for   disqualification   of   the   13 <\/p>\n
named   persons   from   the   membership   of   the   Karnakata <\/p>\n
                                                                                    3<\/span><\/p>\n
Legislature,  it  is  necessary  to  briefly  set  out  in <\/p>\n
sequence the events preceding the said application.\n<\/p>\n
3.    On 6th October, 2010, all the above-mentioned 13 <\/p>\n
members   of   the   Karnataka   Legislative   Assembly, <\/p>\n
belonging         to         the         Bharatiya            Janata           Party, <\/p>\n
hereinafter   referred   to   as   the   “MLAs”,   wrote <\/p>\n
identical   letters   to   the   Governor   of   the   State <\/p>\n
indicating   that   they   had   been   elected   as   MLAs   on <\/p>\n
Bharatiya   Janata   Party   tickets,   but   had   become <\/p>\n
disillusioned           with             the         functioning         of         the <\/p>\n
Government headed by Shri B.S. Yeddyurappa and were <\/p>\n
convinced  that  a  situation  had  arisen  in  which  the <\/p>\n
Government of the State could not be carried on in <\/p>\n
accordance   with   the   provisions   of   the   Constitution <\/p>\n
and   that   Shri   Yeddyurappa   had   forfeited   the <\/p>\n
confidence   of   the   people   as   the   Chief   Minister   of <\/p>\n
the   State.     Accordingly,   in   the   interest   of   the <\/p>\n
State   and   the   people   of   Karnataka,   the   legislators <\/p>\n
expressed   their   lack   of   confidence   in   the <\/p>\n
                                                                                                       4<\/span><\/p>\n
Government   headed   by   Shri   B.S.   Yeddyurappa   and <\/p>\n
withdrew their support to the said Government.  The <\/p>\n
contents   of   one   of   the   aforesaid   letters   dated   6th <\/p>\n
October, 2010, are reproduced hereinbelow :\n<\/p>\n
     “His Excellency,<\/p>\n
               I was elected as an MLA on BJP ticket.\n<\/p><\/blockquote>\n
     I         being         an              MLA          of         the         BJP          got <\/p>\n
     disillusioned   with   the   functioning   of   the <\/p>\n
     Government                        headed              by             Shri                B.S.\n<\/p><\/blockquote>\n
     Yeddyurappa.   There   have   been   widespread <\/p>\n
     corruption,   nepotism,   favouritism,   abuse <\/p>\n
     of  power, misusing  of government  machinery <\/p>\n
     in   the   functioning   of   the   government <\/p>\n
     headed        by   Chief                        Minister   Shri                          B.S.\n<\/p><\/blockquote>\n
     Yeddyurappa   and   a   situation   has   arisen <\/p>\n
     that the governance of the State cannot be <\/p>\n
     carried            on             in          accordance                    with          the <\/p>\n
     provisions   of   the   Constitution   and   Shri <\/p>\n
     Yeddyurappa                       as           Chief            Minister                  has <\/p>\n
     forfeited   the   confidence   of   the   people.\n<\/p><\/blockquote>\n
     In   the   interest   of   the   State   and   the <\/p>\n
     people   of   Karnataka   I   hereby   express   my <\/p>\n
     lack   of   confidence   in   the   government <\/p>\n
     headed   by   Shri   B.S.   Yeddyurappa   and   as <\/p>\n
                                                             5<\/span><\/p>\n
      such   I   withdraw   my   support   to   the <\/p>\n
      Government  headed by  Shri B.S.  Yeddyurappa <\/p>\n
      the   Chief   Minister.   I   request   you   to <\/p>\n
      intervene   and   institute   the   constitutional <\/p>\n
      process   as   constitutional   head   of   the <\/p>\n
      State.\n<\/p><\/blockquote>\n
           With regards,<\/p>\n
                                                 I remain<\/p>\n
                                     Yours faithfully,<\/p>\n
      Shri H.R. Bharadwaj,<\/p>\n
      His Excellency Governor of Karnataka,<\/p>\n
      Raj Bhavan, Bangalore.”            <\/p><\/blockquote>\n
      Five   independent   MLAs   also   expressed   lack   of <\/p>\n
confidence   and   withdrew   support   to   the   Government <\/p>\n
led by Shri B.S. Yeddyurappa.\n<\/p>\n
4.    On the basis of the aforesaid letters addressed <\/p>\n
to   him,   the   Governor   addressed   a   letter   to   the <\/p>\n
Chief   Minister,   Shri   B.S.   Yeddyurappa,   on   the   same <\/p>\n
day (6.10.2010) informing him that letters had been <\/p>\n
received   from   13   BJP   MLAs   and   5   independent   MLAs, <\/p>\n
withdrawing   their   support   to   the   Government.     A <\/p>\n
                                                                      6<\/span><\/p>\n
doubt   having   arisen   about   the   majority   support <\/p>\n
enjoyed   by   the   Government   in   the   Legislative <\/p>\n
Assembly,   the   Governor   requested   Shri   Yeddyurappa <\/p>\n
to   prove   that   he   still   continued   to   command   the <\/p>\n
support of the majority of the Members of the House <\/p>\n
by introducing and getting passed a suitable motion <\/p>\n
expressing   confidence   in   his   Government   in   the <\/p>\n
Legislative Assembly on or before 12th October, 2010 <\/p>\n
by   5   p.m.     In   his   letter   he   indicated   that   the <\/p>\n
Speaker   had   also   been   requested   accordingly.     On <\/p>\n
the   very   same   day,   Shri   B.S.   Yeddyurappa,   as   the <\/p>\n
leader   of   the   BJP   Legislature   Party   in   the <\/p>\n
Karnataka         Legislative         Assembly,         filed         an <\/p>\n
application  before  the  Speaker  under  Rule  6  of  the <\/p>\n
Karnataka Legislative Assembly (Disqualification of <\/p>\n
Members   on   Ground   of   Defection)   Rules,   1986,   being <\/p>\n
Disqualification   Application   No.1   of   2010,   praying <\/p>\n
to  declare  that  all  the  said  thirteen  MLAs  elected <\/p>\n
on   BJP   tickets   had   incurred   disqualification   in <\/p>\n
view of the Tenth Schedule to the Constitution.\n<\/p>\n
                                                              7<\/span><\/p>\n
5.    As   will   appear   from   the   materials   on   record, <\/p>\n
Show-Cause   notices   were   thereafter   issued   to   all <\/p>\n
the 13 MLAs on 7th  October, 2010, informing them of <\/p>\n
the   Disqualification   Application   filed   by   Shri <\/p>\n
Yeddyurappa stating that having been elected to the <\/p>\n
Assembly   as   Members   of   the   BJP,   they   had <\/p>\n
unilaterally submitted a letter on 6th October, 2010 <\/p>\n
to   the   Governor   against   his   Government   withdrawing <\/p>\n
the   support   given   to   the   Government   under   his <\/p>\n
leadership.        The   Appellants   were   informed   that <\/p>\n
their  act  was  in  violation  of  paragraph  2(1)(a)  of <\/p>\n
the Tenth Schedule of the Constitution of India and <\/p>\n
it   disqualified   them   from   continuing   as   Members   of <\/p>\n
the  Legislature.    Time  was  given  to  the  Appellants <\/p>\n
till   5   p.m.   on   10th  October,   2010,   to   submit   their <\/p>\n
objections,  if  any,  to  the  application.    They  were <\/p>\n
also  directed  to  appear  in  person  and  submit  their <\/p>\n
objections   orally   or   in   writing   to   the   Speaker, <\/p>\n
failing which it would be presumed that they had no <\/p>\n
explanation   to   offer   and   further   action   would <\/p>\n
                                                              8<\/span><\/p>\n
thereafter   be   taken  ex-parte,  in   accordance   with <\/p>\n
law.\n<\/p>\n
6.    It also appears that replies were submitted by <\/p>\n
the   Appellants   to   the   Speaker   on   9th  October,   2010 <\/p>\n
indicating that having come to learn from the media <\/p>\n
that a Show-Cause notice had been issued as per the <\/p>\n
orders   of   the   Speaker   and   had   been   pasted   on   the <\/p>\n
doors   of   the   MLA   quarters   in   the   MLA   hostels   at <\/p>\n
Bangalore,   which   were   locked   and   used   by   the <\/p>\n
legislators   only   when   the   House   was   in   session, <\/p>\n
they   had   the   contents   of   the   notices   read   out   to <\/p>\n
them   on   the   basis   whereof   interim   replies   to   the <\/p>\n
Show-Cause   notices   were   being   submitted.   In   the <\/p>\n
interim   replies   filed   by   the   Appellants   on   9th <\/p>\n
October,   2010,   it   was   categorically   indicated   that <\/p>\n
the   interim   reply   was   being   submitted,   without <\/p>\n
prejudice   and   by   way   of   abundant   caution,   as   none <\/p>\n
of   the   documents   seeking   disqualification   had <\/p>\n
either been pasted on the doors of the MLA quarters <\/p>\n
                                                               9<\/span><\/p>\n
or forwarded to the Appellants along with the Show-\n<\/p>\n
Cause  notice.    Similarly,  a  copy  of  the  Governor’s <\/p>\n
letter,   which   was   made   an   enclosure   to   the   Show-\n<\/p>\n
Cause   notice,   was   also   not   pasted   on   the   doors   of <\/p>\n
the   residential   quarters   of   the   Appellants   or <\/p>\n
otherwise served on them personally.  A categorical <\/p>\n
request was made to the Speaker to supply the said <\/p>\n
documents   and   the   Appellants   reserved   their   right <\/p>\n
to   give   exhaustive   replies   after   going   through   the <\/p>\n
aforesaid   enclosures   to   the   Show-Cause   notice   as <\/p>\n
and when supplied.\n<\/p>\n
7.    Having said this, the Appellants submitted that <\/p>\n
the   notice   was   in   clear   violation   of   the <\/p>\n
Disqualification   Rules,   1986,   and   especially   Rules <\/p>\n
6   and   7   thereof.     It   was   mentioned   that   Rule   7(3) <\/p>\n
requires   copies   of   the   petition   and   annexures <\/p>\n
thereto to be forwarded with the Show-Cause notice.\n<\/p>\n
The   notice   dated   7th  October,   2010   called   upon   the <\/p>\n
Appellants   to   appear   and   reply   by   5   p.m.   on   10th <\/p>\n
                                                                10<\/span><\/p>\n
October,   2010,   which   was   in   flagrant   violation   of <\/p>\n
Rule   7   of   the   aforesaid   Rules   which   laid   down   a <\/p>\n
mandatory   procedure   for   dealing   with   a   petition <\/p>\n
seeking disqualification filed under the Rules.\n<\/p>\n
8.     It   was   pointed   out   that   Rule   7   requires   that <\/p>\n
the   Appellants   had   to   be   given   7   days’   time   to <\/p>\n
reply or such further period as the Speaker may for <\/p>\n
sufficient   cause   allow.     Under   the   said   Rule   the <\/p>\n
Speaker could only extend the period of 7 days, but <\/p>\n
could   not   curtail   the   time   from   7   days   to   3   days.\n<\/p>\n
It  was  the  categorical  case  of  the  Appellants  that <\/p>\n
the   minimum   notice   period   of   7   days   was   a <\/p>\n
requirement   of   the   basic   principles   of   natural <\/p>\n
justice   in   order   to   enable   a   MLA   to   effectively <\/p>\n
reply   to   the   Show-Cause   notice   issued   to   him <\/p>\n
seeking   his   disqualification   from   the   Legislative <\/p>\n
Assembly.     It   was   mentioned   in   the   reply   to   the <\/p>\n
Show-Cause   notice   that   issuance   of   such   Show-Cause <\/p>\n
notice   within   a   truncated   period   was   an   abuse   and <\/p>\n
                                                               11<\/span><\/p>\n
misuse   of   the   Constitutional   provisions   for   the <\/p>\n
purpose of achieving the unconstitutional object of <\/p>\n
disqualifying   sufficient   number   of   Members   of   the <\/p>\n
Assembly  from  the  membership  of  the  House  in  order <\/p>\n
to   prevent   them   from   participating   in   the   Vote   of <\/p>\n
Trust   scheduled   to   be   taken   by   Shri   B.S.\n<\/p>\n
Yeddyurappa on the Floor of the House at 11 a.m. on <\/p>\n
11th October, 2010.  It was contended that the Show-\n<\/p>\n
Cause   notices   was     ex-facie  unconstitutional   and <\/p>\n
illegal,   besides   being   motivated   and  mala   fide  and <\/p>\n
devoid of jurisdiction.\n<\/p>\n
9.    In addition to the above, it was also sought to <\/p>\n
be   explained   that   it   was   not   the   intention   of   the <\/p>\n
Appellants to withdraw support to the BJP, but only <\/p>\n
to the Government headed by Shri Yeddyurappa as the <\/p>\n
leader   of   the   BJP   in   the   House.     It   was   contended <\/p>\n
that   withdrawing   of   support   from   the   Government <\/p>\n
headed   by   Shri   B.S.   Yeddyurappa   as   the   Chief <\/p>\n
Minister of Karnataka did not fall within the scope <\/p>\n
                                                             12<\/span><\/p>\n
and   purview   of   the   Tenth   Schedule   to   the <\/p>\n
Constitution   of   India.     It   was   urged   that   the <\/p>\n
conduct   of   the   Appellants   did   not   fall   within   the <\/p>\n
meaning   of   “defection”   or   within   the   scope   of <\/p>\n
paragraph   2(1)(a)   of   the   Tenth   Schedule   or   the <\/p>\n
scheme and object of the Constitution of India.  It <\/p>\n
was   further   emphasized   that   even        prima   facie, <\/p>\n
“defection”   means   leaving   the   party   and   joining <\/p>\n
another,   which   is   not   the   case   as   far   as   the <\/p>\n
Appellants  were  concerned  who  had  not  left  the  BJP <\/p>\n
at all.   It was repeatedly emphasized in the reply <\/p>\n
to   the   Show-Cause   notice   that   the   Appellants   had <\/p>\n
chosen   to   withdraw   their   support   only   to   the <\/p>\n
Government headed by Shri B.S. Yeddyurappa as Chief <\/p>\n
Minister,   as   he   was   corrupt   and   encouraged <\/p>\n
corruption,  and  not  to  the  BJP  itself,  which  could <\/p>\n
form   another   Government   which   could   be   led   by   any <\/p>\n
other   person,   other   than   Shri   Yeddyurappa,   to   whom <\/p>\n
the  Appellants  would  extend  support.    In  the  reply <\/p>\n
to the Show-Cause notice it was, inter alia, stated <\/p>\n
                                                                                     13<\/span><\/p>\n
as follows :-\n<\/p>\n
       “My   letter   submitted   to   H.E.   Governor   of <\/p>\n
       Karnataka   of   withdrawing   the   support   from <\/p>\n
       the      Government   headed                 by   Shri           B.S.\n<\/p><\/blockquote>\n
       Yeddyurappa as Chief Minister of the State <\/p>\n
       is   an   act   of   an   honest   worker   of   the   BJP <\/p>\n
       party   and   a   member   of   the   Legislative <\/p>\n
       Assembly         to         salvage         the         image         and <\/p>\n
       reputation   of   the   BJP   or   the   BJP   as   such.\n<\/p><\/blockquote>\n
       In   fact   my   letter   is   aimed   at   cleansing <\/p>\n
       the   image   of   the   party   by   getting   rid   of <\/p>\n
       Shri B.S. Yeddyurappa as Chief Minister of <\/p>\n
       the State who has been acting as a corrupt <\/p>\n
       despot in violation of the Constitution of <\/p>\n
       India and contrary to the interests of the <\/p>\n
       people of the State.”\n<\/p><\/blockquote>\n
10.    It   was   also   categorically   stated   that   as <\/p>\n
disciplined   soldiers   of   the   BJP   the   Appellants <\/p>\n
would   continue   to   support   any   Government   headed   by <\/p>\n
a clean and efficient person who could provide good <\/p>\n
governance   to   the   people   of   Karnataka.                                 The <\/p>\n
Appellants   appealed   to   the   Speaker   not   to   become <\/p>\n
the   tool   in   the   hands   of   a   corrupt   Chief   Minister <\/p>\n
and   not   to   do   anything   which   could   invite <\/p>\n
strictures   from   the   judiciary.     A   request   was, <\/p>\n
therefore,   made   to   withdraw   the   Show-Cause   notices <\/p>\n
                                                                                     14<\/span><\/p>\n
and to dismiss the petition dated 6th  October, 2010 <\/p>\n
moved  by  Shri  B.S.  Yeddyurappa,  in  the  capacity  of <\/p>\n
the   leader   of   the   Legislature   Party   of   the <\/p>\n
Bharatiya   Janata   Party   and   also   as   the   Chief <\/p>\n
Minister,   with  mala   fide  intention   and   the   oblique <\/p>\n
motive of seeking disqualification of the answering <\/p>\n
MLAs   and   preventing   them   from   voting   on   the <\/p>\n
confidence motion on 11th October, 2010.\n<\/p>\n
11.    The   Speaker   took   up   the   Disqualification <\/p>\n
Application   No.1   of   2010   filed   by   Shri   B.S.\n<\/p>\n
Yeddyurappa, the Respondent No.1 herein, along with <\/p>\n
the replies to the Show-Cause notices issued to the <\/p>\n
thirteen MLAs, who had submitted individual letters <\/p>\n
to   the   Governor   indicating   their   withdrawal   of <\/p>\n
support   to   the   Government   led   by   Shri   Yeddyurappa.\n<\/p>\n
Except   for   Shri   M.P.   Renukacharya   and   Shri <\/p>\n
Narasimha         Nayak,         all         the         other         MLAs         were <\/p>\n
represented   by   their   learned   advocates   before   the <\/p>\n
Speaker.     It   was   noticed   during   the   hearing   that <\/p>\n
                                                             15<\/span><\/p>\n
Shri Renukacharya had subsequently filed a petition <\/p>\n
stating that he continued to support the Government <\/p>\n
and   also   prayed   for   withdrawal   of   any   action <\/p>\n
proposed against him.  He reiterated his confidence <\/p>\n
in   the   Government   headed   by   Shri   Yeddyurappa   and <\/p>\n
alleged   that   a   fraud   had   been   perpetrated   at   the <\/p>\n
time   when   the   individual   letters   were   submitted   to <\/p>\n
the   Governor   and   that   he   had   no   intention   of <\/p>\n
withdrawing   support   to   the   Government   in   which   he <\/p>\n
had   full   confidence.   A   similar   stand   was   taken   on <\/p>\n
behalf   of   Shri   Narasimha   Nayak   also.     In   addition <\/p>\n
to   the   above,   an   affidavit   along   with   supporting <\/p>\n
documents,   affirmed   by   one   Shri   K.S.   Eswarappa, <\/p>\n
State   President   of   the   Bharatiya   Janata   Party <\/p>\n
(B.J.P.)   was   filed   and   it   was   taken   into <\/p>\n
consideration by the Speaker.   On the basis of the <\/p>\n
above,  the  following  two  issues  were  framed  by  the <\/p>\n
Speaker :\n<\/p>\n
                                                                                  16<\/span><\/p>\n
       “(a) Whether                 the          respondents             are <\/p>\n
       disqualified   under   paragraph   2(1)(a)   of <\/p>\n
       Tenth   Schedule   of   the   Constitution   of <\/p>\n
       India, as alleged by the Applicant?\n<\/p>\n
       (b)    Is   there   a   requirement   to   give   seven <\/p>\n
       days’ time to the respondents as stated in <\/p>\n
       their objection statement?”\n<\/p>\n
12.    Answering   the   aforesaid   issues,   the   Speaker <\/p>\n
arrived   at   the   finding   that   after   having   been <\/p>\n
elected from a political party and having consented <\/p>\n
and  supported  the  formation  of  a  Government  by  the <\/p>\n
leader  of  the  said  party,  the  respondents,  who  are <\/p>\n
the   Appellants   herein,   other   than   Shri   M.P.\n<\/p>\n
Renukacharya            and         Shri         Narasimha         Nayak,         had <\/p>\n
voluntarily   given   up   their   membership   of   the   party <\/p>\n
by  withdrawing  support  to  the  said  Government.    In <\/p>\n
arriving at such a conclusion, the Speaker took <\/p>\n
into   consideration   the   allegations   made   by   Shri <\/p>\n
Yeddyurappa   that   after   submitting   their   respective <\/p>\n
                                                             17<\/span><\/p>\n
letters   to   the   Governor   withdrawing   support   to   the <\/p>\n
Government,   the   said   respondents   had   gone   from <\/p>\n
Karnataka  to  Goa  and  other  places  and  had  declared <\/p>\n
that they were a separate group and that they were <\/p>\n
together   and   that   they   had   withdrawn   their   support <\/p>\n
to  the  Government.    The  Speaker  also  took  personal <\/p>\n
notice   of   statements   alleged   to   have   been   made   by <\/p>\n
the   Appellants   and   observed   that   they   had   not <\/p>\n
denied   the   allegations   made   by   Shri   Yeddyurappa <\/p>\n
that they had negotiated with the State Janata Dal, <\/p>\n
its   members   and   leader,   Shri   H.D.   Kumaraswamy, <\/p>\n
regarding   formation   of   another   Government.            In <\/p>\n
support   of   the   same,   the   Speaker   relied   on   media <\/p>\n
reports   and   the   affidavit   filed   by   Shri   Eswarappa.\n<\/p>\n
The   Speaker   recorded   that   the   same   had   not   been <\/p>\n
denied by the Appellants herein.\n<\/p>\n
13.    Referring   to   the   Tenth   Schedule   and   certain <\/p>\n
decisions   of   this   Court   as   to   how   statutory <\/p>\n
provisions  are  to  be  interpreted  in  order  to  avoid <\/p>\n
                                                               18<\/span><\/p>\n
mischief   and   to   advance   remedy   in   the   light   of <\/p>\n
Heyden’s Rule, the Speaker extracted a portion of a <\/p>\n
passage   from   Lord   Denning’s   judgment   in  Seaford <\/p>\n
Court   Estates   Ltd.  Vs.  Asher,   wherein   Lord   Denning <\/p>\n
had stated that a Judge must not alter the material <\/p>\n
of   which   the   Act   is   woven,   but   he   can   and   should <\/p>\n
iron out the creases.   The Speaker was of the view <\/p>\n
that   in   the   event   of   a   difference   of   opinion <\/p>\n
regarding   leadership   in   a   political   party,   the <\/p>\n
matter   had   to   be   discussed   in   the   platform   of   the <\/p>\n
party   and   not   by   writing   a   letter   to   the   Governor <\/p>\n
withdrawing support to the Government.  The Speaker <\/p>\n
also   observed   that   the   Governor   never   elects   the <\/p>\n
leader of the legislature party.  Accordingly, from <\/p>\n
the   conduct   of   the   Appellants   in   writing   to   the <\/p>\n
Governor   that   they   had   withdrawn   support,   joining <\/p>\n
hands  with  the  leader  of  another  party  and  issuing <\/p>\n
statements   to   the   media,   it   was   evident   that   by <\/p>\n
their   conduct   the   Appellants   had   become   liable   to <\/p>\n
be   disqualified   under   the   Tenth   Schedule.              In <\/p>\n
                                                                                     19<\/span><\/p>\n
coming   to   the   said   conclusion,   the   Speaker   placed <\/p>\n
reliance  on  several  decisions  of  this  Court  and  in <\/p>\n
particular,  the  decision  in  Ravi  S.  Naik  Vs.  Union <\/p>\n
of   India  [(1994)   Suppl.2   SCC   641],   wherein   the <\/p>\n
question   of   a   member   voluntarily   giving   up   his <\/p>\n
membership   of   a   political   party   was   considered   in <\/p>\n
detail.         Special         emphasis         was         laid         on         the <\/p>\n
observation made in the said decision to the effect <\/p>\n
that   a   person   can   voluntarily   give   up   his <\/p>\n
membership  of  a  political  party  even  though  he  may <\/p>\n
not   have   tendered   his   resignation   from   the <\/p>\n
membership   of   the   party.     In   the   said   decision   it <\/p>\n
was further observed that even in the absence of a <\/p>\n
formal   resignation   from   membership,   an   inference <\/p>\n
could be drawn from the conduct of a member that he <\/p>\n
had   voluntarily   given   up   his   membership   of   the <\/p>\n
political party to which he belonged.\n<\/p>\n
14.    The Speaker also referred to and relied on the <\/p>\n
decision of this Court in Jagjit Singh Vs. State of <\/p>\n
                                                            20<\/span><\/p>\n
Haryana     [(2006)   11   SCC   1],   wherein,   it   was <\/p>\n
expressed   that   to   determine   whether   an   independent <\/p>\n
member had joined a political party, the test to be <\/p>\n
considered   was   whether   he   had   fulfilled   the <\/p>\n
formalities   for   joining   a   political   party.     The <\/p>\n
test   was   whether   he   had   given   up   his   independent <\/p>\n
character   on   which   he   was   elected   by   the <\/p>\n
electorate.\n<\/p>\n
15.    Yet another decision relied upon by the Speaker <\/p>\n
was the decision in  Rajendra Singh Rana & Ors.  Vs. <\/p>\n
Swami   Prasad   Maurya   &   Ors.  [(2007)   4   SCC   270], <\/p>\n
wherein   the   question   of   voluntarily   giving   up <\/p>\n
membership   of   a   political   party   was   also   under <\/p>\n
consideration.   The   Speaker   relied   on   paragraphs   48 <\/p>\n
and   49   of   the   said   judgment,   wherein   it   was <\/p>\n
indicated   that   the   act   of   giving   a   letter <\/p>\n
requesting  the  Governor  to  call  upon  the  leader  of <\/p>\n
the   other   side   to   form   a   Government   would   itself <\/p>\n
amount   to   an   act   of   voluntarily   giving   up   the <\/p>\n
                                                                                      21<\/span><\/p>\n
membership  of  the  party  on  whose  ticket  the  member <\/p>\n
was elected.\n<\/p>\n
16.    The Speaker observed that the Appellants herein <\/p>\n
had   not   denied   their   conduct   anywhere   and   had <\/p>\n
justified   the   same   even   during   their   arguments.\n<\/p>\n
The   Speaker   was   of   the   view   that   by   their   conduct <\/p>\n
the   Appellants   had   voluntarily   given   up   the <\/p>\n
membership   of   the   party   from   which   they   were <\/p>\n
elected, which attracted disqualification under the <\/p>\n
Tenth  Schedule.    The  Speaker  further  held  that  the <\/p>\n
act   of   withdrawing   support   and   acting   against   the <\/p>\n
leader   of   the   party   from   which   they   had   been <\/p>\n
elected, amounted to violation of the object of the <\/p>\n
Tenth   Schedule   and   that   any   law   should   be <\/p>\n
interpreted   by   keeping   in   mind   the   purpose   for <\/p>\n
which it was enacted.\n<\/p>\n
17.    The Speaker then took note of the retraction by <\/p>\n
Shri   M.P.   Renukacharya   and   Shri   Narasimha   Nayak, <\/p>\n
indicating         that         they         had         no         intention         of <\/p>\n
                                                             22<\/span><\/p>\n
withdrawing   support   to   the   Government   led   by   Shri <\/p>\n
Yeddyurappa   and   that   they   extended   support   to   the <\/p>\n
party   and   the   Government   and   their   elected   leader.\n<\/p>\n
The   Speaker   also   relied   on   the   affidavit   filed   by <\/p>\n
Shri K.S. Eswarappa     and on considering the same, <\/p>\n
arrived at the decision that the said two MLAs were <\/p>\n
not   disqualified   under   the   Tenth   Schedule   of   the <\/p>\n
Constitution.        As   far   as   the   Appellants   are <\/p>\n
concerned,   the   Speaker   held   that   in   view   of   the <\/p>\n
reasons   stated   and   the   factual   background,   he   was <\/p>\n
convinced   that   they   were   disqualified   from   their <\/p>\n
respective posts of MLAs under paragraph 2(1)(a) of <\/p>\n
the Tenth Schedule of the Constitution.\n<\/p>\n
18.    The Speaker then took up the objection taken on <\/p>\n
behalf of the Appellants herein that the Show-Cause <\/p>\n
notice   to   the   Appellants   had   been   issued   in <\/p>\n
violation of the provisions of Rules 6 and 7 of the <\/p>\n
Karnataka Legislative Assembly (Disqualification of <\/p>\n
Members   on   Ground   of   Defection)   Rules,   1986, <\/p>\n
                                                                            23<\/span><\/p>\n
hereinafter   referred   to   as   “the   Disqualification <\/p>\n
Rules,1986”, inasmuch as, they were not given seven <\/p>\n
days’   time   to   reply   to   the   Show-Cause   notice,   as <\/p>\n
contemplated   by   Rule   7(3)   of   the   aforesaid   Rules.\n<\/p>\n
The   Speaker,   without   answering   the   objection <\/p>\n
raised,   skirted   the   issue   by   stating   that   it   was <\/p>\n
sufficient   for   attracting   the   provisions   of <\/p>\n
paragraph   2(1)(a)   of   the   Tenth   Schedule   to   the <\/p>\n
Constitution   of   India   that   the   Appellants   herein <\/p>\n
had admitted that they had withdrawn support to the <\/p>\n
Government.   The Speaker further recorded that the <\/p>\n
Appellants   had   been   represented   by   counsel   who   had <\/p>\n
justified         the         withdrawal         of         support         and <\/p>\n
“recognizing themselves with the leader and MLAs of <\/p>\n
another party”. Without giving details, the Speaker <\/p>\n
observed   that   this   Court   had   stated   that   the <\/p>\n
Disqualification   Rules   were   directory   and   not <\/p>\n
mandatory as they were to be followed for the sake <\/p>\n
of convenience.  The stand taken by the Speaker was <\/p>\n
that   since   the   Appellants   had   appeared   and   filed <\/p>\n
                                                              24<\/span><\/p>\n
objection   and   submitted   detailed   arguments,   the <\/p>\n
objection   taken   with   regard   to   insufficient   time <\/p>\n
being   given   in   violation   of   the   Rules   to   reply   to <\/p>\n
the   Show-Cause   notice,   was   only   a   technical <\/p>\n
objection and was not relevant to a decision in the <\/p>\n
matter.     On   the   basis   of   his   aforesaid   reasoning, <\/p>\n
the   Speaker   rejected   the   objection   filed   on   behalf <\/p>\n
of   Appellants   and   went   on   to   disqualify   the <\/p>\n
Appellants   herein   under   paragraph   2(1)(a)   of   the <\/p>\n
Tenth   Schedule   to   the   Constitution   with   immediate <\/p>\n
effect.     The   application   seeking   disqualification <\/p>\n
of   Shri   M.P.   Renukacharya   and   Shri   Narasimha   Nayak <\/p>\n
was dismissed.\n<\/p>\n
19.    The   Appellants   herein   challenged   the   decision <\/p>\n
of   the   Speaker   in   Writ   Petition   Nos.32660-32670   of <\/p>\n
2010,   which   were   listed   for   hearing   before   the <\/p>\n
Chief   Justice   of   Karnataka   and   the   Hon’ble   Mr. <\/p>\n
Justice   N.   Kumar.   In   his   judgment,   the   Hon’ble <\/p>\n
Chief   Justice   took   up   the   objections   taken   on <\/p>\n
                                                              25<\/span><\/p>\n
behalf of the Appellants herein, beginning with the <\/p>\n
objection that the application for disqualification <\/p>\n
filed   by   Shri   Yeddyurappa   was   not   in   conformity <\/p>\n
with   Rules   6   and   7   of   the   Defection   Rules.\n<\/p>\n
Referring   to   Sub-rules   (5)   and   (6)   of   Rule   6,   the <\/p>\n
Chief   Justice   held   that   there   had   been   substantive <\/p>\n
compliance  with  the  said  Rules  which  had  been  held <\/p>\n
to be directory in nature and that it would not be <\/p>\n
possible  merely  on  account  of  the  violation  of  the <\/p>\n
procedure contemplated under the Rules to set aside <\/p>\n
the   order   of   the   Speaker,   unless   the   violation   of <\/p>\n
the   procedure   was   shown   to   have   resulted   in <\/p>\n
prejudice to the Appellants.  Repeating the reasons <\/p>\n
given by the Speaker to reject the objection of the <\/p>\n
Appellants   on   the   aforesaid   score   and   relying   on <\/p>\n
the   judgments   rendered   by   this   Court   in  Ravi   S.\n<\/p>\n
Naik’s   case   (supra)   and   in   the   case   of          Dr. <\/p>\n
Mahachandra   Prasad   Singh          vs.     Chairman,   Bihar <\/p>\n
Legislative   Council   &   Ors.<\/a>  [(2004)   8   SCC   747]   the <\/p>\n
Chief   Justice   held   that   it   was   not   possible   to <\/p>\n
                                                                              26<\/span><\/p>\n
accept   the   contentions   of   the   learned   counsel   for <\/p>\n
the Appellants and rejected the same.\n<\/p>\n
20.    On   the   second   contention   relating   to   violation <\/p>\n
of the rules of natural justice and the proceedings <\/p>\n
conducted   by   the   Speaker   in   extreme   haste,   thereby <\/p>\n
depriving          the         Appellants         of         a         reasonable <\/p>\n
opportunity   of   defending   themselves,   the   Chief <\/p>\n
Justice,   placing   reliance   on   the   decision   in  Ravi <\/p>\n
S.   Naik’s   case   (supra),   negated   the   submissions <\/p>\n
made  on  behalf  of  the  Appellants  upon  holding  that <\/p>\n
since   no   prejudice   had   been   caused   to   the <\/p>\n
Appellants,   it   was   difficult   to   accept   the <\/p>\n
contention advanced on their behalf that the entire <\/p>\n
proceedings   of   the   Speaker   deserved   to   be   set <\/p>\n
aside.\n<\/p>\n
21.    Regarding   the   other   objection   taken   on   behalf <\/p>\n
of   the   Appellants   on   the   question   of   reliance <\/p>\n
having   been   placed   on   the   affidavit   filed   by   the <\/p>\n
State   President   of   the   Bharatiya   Janata   Party,   the <\/p>\n
                                                                27<\/span><\/p>\n
Chief  Justice  held  that  none  of  the  Appellants  had <\/p>\n
disputed   the   factual   position   expressed   in   the <\/p>\n
newspaper   cuttings   which   formed   part   of   the <\/p>\n
affidavit and that the submission made on behalf of <\/p>\n
the   Appellants   that   had   they   been   afforded   proper <\/p>\n
time   to   deal   with   the   said   affidavit,   they   would <\/p>\n
have   been   able   to   show   that   the   facts   recorded   in <\/p>\n
the   newspaper   article   were   incorrect,                 was, <\/p>\n
therefore, without any basis.\n<\/p>\n
22.    On   the   main   question   as   to   whether   the   action <\/p>\n
of   the   Appellants   had   attracted   the   provisions   of <\/p>\n
paragraph   2(1)(a)   of   the   Tenth   Schedule   to   the <\/p>\n
Constitution,   the   Chief   Justice   came   to   a <\/p>\n
categorical   finding   that   the   Appellants   had <\/p>\n
defected   from   the   Bharatiya   Janata   Party   and   had <\/p>\n
voluntarily   given   up   their   membership   thereof.\n<\/p>\n
Furthermore,   while   doing   so,   the   Appellants   had <\/p>\n
indicated   that   the   constitutional   machinery   had <\/p>\n
broken   down   leading   to   a   situation   where   the <\/p>\n
                                                                                  28<\/span><\/p>\n
governance of the State could not be carried on in <\/p>\n
accordance   with   the   Constitution   and   requested   the <\/p>\n
Governor               to         intervene         and         institute         the <\/p>\n
constitutional   process   as   the   constitutional   head <\/p>\n
of the State.  Referring to the wordings of Article <\/p>\n
356   of   the   Constitution   which   provides   for <\/p>\n
proclaiming   President’s   Rule   in   a   State   where   it <\/p>\n
was   no   longer   possible   to   carry   on   the   governance <\/p>\n
of   the   State   in   accordance   with   the   provisions   of <\/p>\n
the Constitution of India, the Chief Justice agreed <\/p>\n
with   the   view   expressed   by   the   Speaker   that   by <\/p>\n
withdrawing support from the Government led by Shri <\/p>\n
Yeddyurappa,   the   Appellants   had   voluntarily   chosen <\/p>\n
to   disassociate   themselves   from   the   Bharatiya <\/p>\n
Janata   Party   with   the   intention   of   bringing   down <\/p>\n
the Government.\n<\/p>\n
23.    The Chief Justice also rejected the allegations <\/p>\n
of mala fide on account of the speed with which the <\/p>\n
Speaker               had         conducted         the         disqualification <\/p>\n
                                                            29<\/span><\/p>\n
proceedings  within  five  days  i.e.  one  day  ahead  of <\/p>\n
the   Trust   Vote   which   was   to   be   taken   by   Shri <\/p>\n
Yeddyurappa   on   the   Floor   of   the   Assembly.     The <\/p>\n
Chief   Justice,   accordingly,   found   no   merit   in   any <\/p>\n
of   the   contentions   raised   on   behalf   of   the <\/p>\n
Appellants   and   holding   that   the   order   of   the <\/p>\n
Speaker   did   not   suffer   from   any   infirmity, <\/p>\n
dismissed   the   Writ   Petitions   filed   by   the <\/p>\n
Appellants.\n<\/p>\n
24.    Mr. Justice N. Kumar, who, along with the Chief <\/p>\n
Justice,   heard   the   writ   petition   filed   by   the <\/p>\n
Appellants   herein,   in   his   separate   judgment, <\/p>\n
differed   with   the   views   expressed   by   the   Chief <\/p>\n
Justice   in   regard   to   the   interpretation   of <\/p>\n
paragraph   2(1)(a)   of   the   Tenth   Schedule   of   the <\/p>\n
Constitution.     Observing   that   in   a   parliamentary <\/p>\n
democracy   the   mandate   to   rule   the   State   is   given <\/p>\n
not to any individual but to a political party, the <\/p>\n
learned   Judge   further   observed   that   the   Council   of <\/p>\n
                                                               30<\/span><\/p>\n
Ministers headed by the Chief Minister can continue <\/p>\n
in   the   office   as   long   as   they   enjoyed   the <\/p>\n
confidence   of   the   majority   of   the   Members   of   the <\/p>\n
House.  If  the  House  expressed  no  confidence  in  the <\/p>\n
Chief Minister, it was not only the Chief Minister, <\/p>\n
but his entire Council of Ministers who cease to be <\/p>\n
in   office.         Regarding   interpretation   of   the <\/p>\n
provisions   of   paragraph   2(1)(a)   of   the   Tenth <\/p>\n
Schedule of the Constitution, Kumar,J., referred to <\/p>\n
the   decisions   rendered   by   this   Court   in   –   (1) <\/p>\n
Kihoto Hollohan Vs. Zachillhu & Ors. [(1992) Supp.2 <\/p>\n
SCC   651];   (2)  G.   Viswanathan  Vs.  Hon’ble   Speaker <\/p>\n
Tamil   Nadu   Legislative   Assembly,   Madras   &   Anr.\n<\/p>\n
[(1996)   2   SCC   353];   (3)  Dr.   Mahachandra   Prasad <\/p>\n
Singh  Vs.  Chairman,   Bihar   Legislative   Council   & <\/p>\n
Ors.  [(2004)   8   SCC   747];   and   (4)  Rajendra   Singh <\/p>\n
Rana & Ors Vs. Swami Prasad Maurya & Ors. [(2007) 4 <\/p>\n
SCC   270],   and   held   that   from   the   scheme   of   the <\/p>\n
Tenth   Schedule   it   was   clear   that   the   same   applied <\/p>\n
only   to   a   Member   of   the   House.     Such   Member   could <\/p>\n
                                                                               31<\/span><\/p>\n
be elected on the ticket of any political party or <\/p>\n
as   an   Independent,   but   a   member   of   a   political <\/p>\n
party   who   is   elected   as   a   Member   of   the   House, <\/p>\n
would   automatically   become   a   member   of   the <\/p>\n
Legislature   Party   in   the   said   House.     The   learned <\/p>\n
Judge   held   that   paragraph   2   of   the   Tenth   Schedule <\/p>\n
deals   with   disqualification   of   Members   of   the <\/p>\n
House.    The  learned  Judge  also  held  that  paragraph <\/p>\n
2(1)   deals   with   disqualification   of   a   Member   of   a <\/p>\n
House   who   belongs   to   a   political   party,   while <\/p>\n
paragraph   2(2)   deals   with   disqualification   of   a <\/p>\n
Member   of   a   House   elected   as   an   Independent.     In <\/p>\n
the   case   of   a   Member   of   a   House   elected   as   an <\/p>\n
Independent         candidate,         the         question         of         his <\/p>\n
voluntarily giving up his membership of a political <\/p>\n
party would not arise.   Similarly, when he did not <\/p>\n
belong   to   any   political   party,   the   question   of <\/p>\n
voting   or   abstaining   from   voting   in   such   House <\/p>\n
contrary   to   the   directions   issued   by   the   political <\/p>\n
party  would  not  arise.    The  learned  Judge  observed <\/p>\n
                                                              32<\/span><\/p>\n
that   once   a   person   gets   elected   as   an   Independent <\/p>\n
candidate,   the   mandate   of   the   voters   is   that   he <\/p>\n
should   remain   independent   throughout   his   tenure   in <\/p>\n
the  House  and  under  no  circumstances  could  he  join <\/p>\n
any   political   party.     However,   in   the   case   of   a <\/p>\n
Member of the House belonging to a political party, <\/p>\n
the   disqualification   occurs   when   he   voluntarily <\/p>\n
gives   up   the   membership   of   that   political   party.\n<\/p>\n
It is because of the mandate of the people that he <\/p>\n
should  continue  to  be  the  member  of  that  political <\/p>\n
party   which   set   him   up   as   a   candidate   for   the <\/p>\n
election.     He   was,   however,   free   to   give   up   his <\/p>\n
membership   of   the   party,   but   for   the   said   purpose <\/p>\n
he   had   to   resign   from   the   membership   of   the   House <\/p>\n
as   well   as   the   membership   of   the   political   party <\/p>\n
and then contest the election in the vacancy caused <\/p>\n
because   of   his   resignation   and   then   only   he   would <\/p>\n
have an independent course of choice.\n<\/p>\n
                                                              33<\/span><\/p>\n
25.    After analyzing the intent behind the inclusion <\/p>\n
of   the   Tenth   Schedule   to   the   Constitution,   the <\/p>\n
learned Judge also observed that the anti-defection <\/p>\n
law   was   enacted   to   prevent   floor   crossing   and <\/p>\n
destabilizing   the   Government   which   is   duly   elected <\/p>\n
for   a   term.     If,   however,   a   Member   of   the   House <\/p>\n
voluntarily   gave   up   his   membership   of   a   political <\/p>\n
party,  the  object  of  the  anti-defection  law  was  to <\/p>\n
prevent   him   from   extending   support   to   the <\/p>\n
opposition party to form the Government by his vote <\/p>\n
or   to   ensure   that   if   he   has   resigned   from   the <\/p>\n
membership   of   a   party,   his   support   was   not <\/p>\n
available   for   forming   an   alternative   Government   by <\/p>\n
the   opposition   party.     The   learned   Judge   observed <\/p>\n
that if a Member violates the above conditions, the <\/p>\n
Parliament   has   taken   care   to   see   by   enacting   the <\/p>\n
Tenth   Schedule   that   such   Member   would   be   instantly <\/p>\n
disqualified   from   being   a   Member   of   the   House.\n<\/p>\n
Once   the   act   of   disqualification   occurred,   the <\/p>\n
question   of   condoning   such   act   or   taking   him   back <\/p>\n
                                                             34<\/span><\/p>\n
to   the   party   on   his   tendering   an   apology   or <\/p>\n
expressing his intention to come back to the party, <\/p>\n
would   not   arise.     Therefore,   if   the   act   falls <\/p>\n
within  the  ambit  of  paragraph  2(1)(a)  of  the  Tenth <\/p>\n
Schedule, his membership becomes void.  However, if <\/p>\n
such   disqualification   was   incurred   under   paragraph <\/p>\n
2(1)(b),   such   disqualification   did   not   render   his <\/p>\n
membership   void   but   it   was   voidable   at   the   option <\/p>\n
of the political party.\n<\/p>\n
26.    The learned Judge went on to further hold that <\/p>\n
when   a   Member   of   a   House   expressed   his   no-\n<\/p>\n
confidence in the leader of a Legislature Party and <\/p>\n
if   he   happened   to   be   the   Chief   Minister   who   is <\/p>\n
heading the Council of Ministers and had written to <\/p>\n
the   Governor   in   that   regard,   such   act   by   itself <\/p>\n
would   not   amount   to   an   act   of   floor   crossing.\n<\/p>\n
Similarly,   if   the   Governor,   after   taking   note   of <\/p>\n
the expression of no-confidence, was satisfied that <\/p>\n
the Chief Minister had lost majority support in the <\/p>\n
                                                               35<\/span><\/p>\n
House,   he   could   call   upon   the   Chief   Minister   to <\/p>\n
prove   his   majority   on   the   Floor   of   the   House.     It <\/p>\n
was further observed that if the Chief Minister, on <\/p>\n
such  request,    failed  to  establish  that  he  enjoyed <\/p>\n
the   support   of   the   majority   of   the   Members,   his <\/p>\n
Ministry would fall, but such act of the Member of <\/p>\n
the   House   would   not   constitute   `defection’   under <\/p>\n
the   Tenth   Schedule.     By   such   act,   the   political <\/p>\n
party   which   had   formed   the   Government,   would   not <\/p>\n
lose   its   right   to   form   a   Government   again.     It   is <\/p>\n
not as if the Governor can recommend the imposition <\/p>\n
of   President’s   Rule   under   Article   356   of   the <\/p>\n
Constitution   or   call   upon   the   leader   of   the <\/p>\n
opposition   to   form   an   alternative   Government   after <\/p>\n
the   fall   of   the   earlier   Government.              Before <\/p>\n
embarking   upon   either   of   the   two   options,   the <\/p>\n
Governor was expected to explore the possibility of <\/p>\n
formation of an alternative Government. The Speaker <\/p>\n
could call upon the leader who enjoyed the majority <\/p>\n
support   of   the   Members   of   the   House   to   form   an <\/p>\n
                                                              36<\/span><\/p>\n
alternative Government. In such case it was open to <\/p>\n
the political party, whose Government had fallen on <\/p>\n
the Floor of the House, to once again stake a claim <\/p>\n
before the Governor, either with the same leader or <\/p>\n
another leader elected by the party, by showing the <\/p>\n
majority   support   of   the   Members   of   the   House.     In <\/p>\n
that   a   situation,   the   stability   of   the   Government <\/p>\n
of   the   political   party   is   not   disturbed.     On   the <\/p>\n
other hand, what is disturbed by such an act is the <\/p>\n
Government of the political party with a particular <\/p>\n
leader   in   whom   the   Members   of   the   House   belonging <\/p>\n
to   the   same   political   party   have   no   confidence.\n<\/p>\n
But   this   would   not   mean   that   the   member   of   the <\/p>\n
political   party   to   which   the   Chief   Minister <\/p>\n
belonged   had   given   up   his   membership   of   the <\/p>\n
political party. Other provisions have been made in <\/p>\n
the   Constitution   for   dealing   with   such   dissenting <\/p>\n
members.   In such a case, by issuing a whip, those <\/p>\n
who had expressed their no-confidence in the leader <\/p>\n
of the House, can be directed to vote in his favour <\/p>\n
                                                               37<\/span><\/p>\n
at   the   time   of   voting   on   the   floor   of   the   House.\n<\/p>\n
Once   such   direction   is   given,   the   member   concerned <\/p>\n
can   neither   abstain   from   voting   nor   vote   contrary <\/p>\n
to   the   direction.        If   he   does   so,   he   incurs <\/p>\n
disqualification   under   paragraph   2(1)(b)   of   the <\/p>\n
Tenth   Schedule   to   the   Constitution.     The   learned <\/p>\n
Judge   observed   further   that,   in   fact,   the   said <\/p>\n
provision   also   provides   for   such   an   act   being <\/p>\n
condoned  so  that  by  persuasion  or  by  entering  into <\/p>\n
an   understanding,   their   support   could   still   be <\/p>\n
relied   upon   by   the   party   to   save   the   Government <\/p>\n
before   voting   or   in   forming   a   fresh   Government <\/p>\n
after  such  voting,  if  in  the  voting  the  Government <\/p>\n
fails.     The   said   dissent   amounts   to   the   dissent <\/p>\n
within the party itself.\n<\/p>\n
27.    The learned Judge observed that the two grounds <\/p>\n
set out in paragraph 2 of the Tenth Schedule to the <\/p>\n
Constitution   are   mutually   exclusive   and   operate   in <\/p>\n
two different fields. While paragraph 2(1)(a) deals <\/p>\n
                                                              38<\/span><\/p>\n
with   the   Member   who   voluntarily   walks   out   of   the <\/p>\n
party,   paragraph   2(1)(b)   deals   with   the   Member   who <\/p>\n
remains in the party but acts in a manner which is <\/p>\n
contrary   to   the   directions   of   the   party.   The <\/p>\n
learned  Judge,  however,  went  on  to  observe  that  if <\/p>\n
a   Member   voluntarily   gives   up   his   membership   from <\/p>\n
the   party,   then   paragraph   2(1)(b)   is   no   longer <\/p>\n
attracted.     In   either   event,   it   is   the   political <\/p>\n
party which is aggrieved by such conduct.  However, <\/p>\n
it   was   left   to   the   party   to   condone   the   conduct <\/p>\n
contemplated in paragraph 2(1)(b), but such conduct <\/p>\n
would   have   to   be   condoned   within   15   days   from   the <\/p>\n
date of such voting or abstention.\n<\/p>\n
28.         Having   dealt   with   the   various   decisions <\/p>\n
referred   to   hereinabove,   the   learned   Judge   came   to <\/p>\n
the conclusion that it was clear that an act of no <\/p>\n
confidence   in   the   leader   of   the   legislative   party <\/p>\n
does   not   amount   to   his   voluntarily   giving   up   the <\/p>\n
membership   of   the   political   party.     Similarly,   his <\/p>\n
                                                              39<\/span><\/p>\n
act   of   expressing   no   confidence   in   the   Government <\/p>\n
formed   by   the   party,   with   a   particular   leader   as <\/p>\n
Chief   Minister,   would   not   also   amount   to   a <\/p>\n
voluntary   act   of   giving   up   the   membership   of   the <\/p>\n
political party. The learned Judge further observed <\/p>\n
that   deserting   the   leader   and   deserting   the <\/p>\n
Government   is   not   synonymous   with   deserting   the <\/p>\n
party.     If   a   Minister   resigned   from   the   Ministry, <\/p>\n
it would not amount to defection.  What constitutes <\/p>\n
defection   under   paragraph   2(1)(a)   of   the   Tenth <\/p>\n
Schedule   is   deserting   the   party.   The   learned   Judge <\/p>\n
observed   that   dissent   is   not   defection   and   the <\/p>\n
Tenth   Schedule   while   recognising   dissent   prohibits <\/p>\n
defection.\n<\/p>\n
29.    The   learned   Judge   also   considered   the   case   of <\/p>\n
Shri   M.P.   Renukacharya   and   Shri   Narasimha   Nayak, <\/p>\n
who   were   among   the   13   members   against   whom   the <\/p>\n
disqualification   petition   had   been   filed   by   the <\/p>\n
Chief Minister.  The learned Judge pointed out that <\/p>\n
                                                              40<\/span><\/p>\n
along with the Appellants herein, the aforesaid two <\/p>\n
members   had   also   signed   a   representation   which   had <\/p>\n
been given to the Governor and if such an act would <\/p>\n
amount to voluntarily giving up the membership of a <\/p>\n
political   party   and   the   case   fell   within   paragraph <\/p>\n
2(1)(a), the disqualification becomes automatic and <\/p>\n
the   membership   of   such   persons   becomes   void.   The <\/p>\n
question   of   those   members   retracting   their   steps <\/p>\n
and   reaffirming   their   confidence   in   the   Chief <\/p>\n
Minister   and   the   Party   President   confirming   the <\/p>\n
same   on   a   subsequent   date,   is   of   no   consequence.\n<\/p>\n
The  learned  Judge  held  that  the  same  yardstick  had <\/p>\n
not   been   applied   for   the   Appellants   and   the   two <\/p>\n
other   members   against   whom   the   disqualification <\/p>\n
petition filed by the Chief Minister was dismissed.\n<\/p>\n
30.    Expressing his views with regard to the manner <\/p>\n
in which the Speaker had acted in the matter in hot <\/p>\n
haste,   the   learned   Judge   referred   to   paragraphs <\/p>\n
180,   181   and   182   of   the   decision   rendered   by   this <\/p>\n
                                                                            41<\/span><\/p>\n
Court   in  Kihoto   Hollohan’s   case   (supra),   which   was <\/p>\n
the   minority   view,   but   had   suggested   that   the <\/p>\n
office of the Speaker which was attached with great <\/p>\n
dignity should not be made the target of bias since <\/p>\n
his   tenure   as   Speaker   is   dependent   on   the   will   of <\/p>\n
the   majority   of   the   House.     While   holding   that <\/p>\n
right   to   dissent   is   the   essence   of   democracy,   for <\/p>\n
the         success         of         democracy         and         democratic <\/p>\n
institutions   honest   dissent   is   to   be   respected   by <\/p>\n
persons in authority. On the basis of his aforesaid <\/p>\n
conclusions,   the   learned   Judge   held   that   the   order <\/p>\n
of the Speaker impugned in the writ petition was in <\/p>\n
violation   of   the   constitutional   mandate   and   also <\/p>\n
suffered   from   perversity   and   could   not,   therefore, <\/p>\n
be   sustained.     The   impugned   order   of   the   Speaker <\/p>\n
was, therefore, set aside by the learned Judge.\n<\/p>\n
31.    On   account   of   such   difference   of   opinion <\/p>\n
between   the   Chief   Justice   and   his   companion   Judge, <\/p>\n
                                                                                     42<\/span><\/p>\n
the   matter   was   referred   to   a   third   Judge   to <\/p>\n
consider the following issue :-\n<\/p>\n
       “Whether         the          impugned              order         dated <\/p>\n
       10.10.2010   passed   by   the   Speaker   of   the <\/p>\n
       Karnataka  State Legislative  Assembly is  in <\/p>\n
       consonance            with         the         provisions              of <\/p>\n
       paragraph 2(1)(a) of the Tenth Schedule of <\/p>\n
       the Constitution of India.”\n<\/p>\n
32.    On the basis of the said reference, the matter <\/p>\n
was   referred   to   the   Hon’ble   Mr.   Justice   V.G.\n<\/p>\n
Sabhahit,   who   by   his   judgment   and   order   dated   29th <\/p>\n
October, 2010, concurred with the decision rendered <\/p>\n
by  the  Chief  Justice  upholding  the  order  passed  by <\/p>\n
the Speaker.  As a result, the majority view in the <\/p>\n
writ   petitions   was   that   the   Hon’ble   Speaker   was <\/p>\n
justified in holding that the Appellants herein had <\/p>\n
voluntarily   resigned   from   their   membership   of   the <\/p>\n
Bharatiya   Janata   Party   by   their   conduct,   which <\/p>\n
attracted   the   provisions   of   paragraph   2(1)(a)   of <\/p>\n
the   Tenth   Schedule   to   the   Constitution   and   were <\/p>\n
                                                             43<\/span><\/p>\n
rightly   disqualified   from   the   membership   of   the <\/p>\n
House.\n<\/p>\n
33.    Mr.   R.F.   Nariman,   learned   Senior   Advocate, <\/p>\n
appearing   for   the   Appellants   in   SLP(C)Nos.33123-\n<\/p>\n
33155   of   2010,  Balchandra   L.   Jarkiholi   &   Ors.  Vs. <\/p>\n
B.S.   Yeddyurappa   &   Ors.  (now   appeals),   questioned <\/p>\n
the   order   of   the   Speaker   dated   10th  October,   2010, <\/p>\n
disqualifying the Appellants from membership of the <\/p>\n
House,   on   grounds   of   mala   fide   and   violation   of <\/p>\n
Rules   6(5)(b)   and   7(3)   of   the   Disqualification <\/p>\n
Rules,   1986,   as   also   the   principles   of   natural <\/p>\n
justice.     Contending that the order passed by the <\/p>\n
Speaker on 10th  October, 2010, was vitiated by  mala  <\/p>\n
fides, Mr. Nariman submitted that the same had been <\/p>\n
passed   with   the   oblique   motive   of   preventing   the <\/p>\n
Appellants   from   participating   in   the   Trust   Vote <\/p>\n
which was to be taken by the Chief Minister on 11th <\/p>\n
October, 2010.  Learned counsel also submitted that <\/p>\n
the letters dated 6th  March, 2010, addressed by the <\/p>\n
                                                                                      44<\/span><\/p>\n
Appellants   individually   along   with   Shri   M.P.\n<\/p>\n
Renukacharya   and   Shri   Narasimha   Nayak   to   the <\/p>\n
Governor   did   not   even   suggest   that   they   had <\/p>\n
intended  to  leave  the  Bharatiya  Janata  Party  or  to <\/p>\n
join   another   political   party   but   that   they   were <\/p>\n
disillusioned            with         the         functioning             of         the <\/p>\n
Government   under   Shri   B.S.   Yeddyurappa   and   had, <\/p>\n
therefore,   decided   to   withdraw   support   to   the <\/p>\n
Government   headed   by   him.     Furthermore,   apart   from <\/p>\n
mentioning   that   the   Appellants   had   written   to   the <\/p>\n
Governor         withdrawing               their         support          to         the <\/p>\n
Government,   the   Disqualification   Application   does <\/p>\n
not   also   contain   any   averment   that   the   Appellants <\/p>\n
had  met  any  person  from  any  other  political  party.\n<\/p>\n
Although         certain         press            statements         had             been <\/p>\n
mentioned   in   the   petition,   the   same   had   not   been <\/p>\n
annexed to the application.   Mr. Nariman submitted <\/p>\n
that,   in   fact,   no   documentary   evidence   was   at   all <\/p>\n
annexed to the said application.\n<\/p>\n
                                                               45<\/span><\/p>\n
34.    In   addition   to   the   above,   Mr.   Nariman   also <\/p>\n
pointed   out   that   the   Disqualification   Application <\/p>\n
had   not   been   properly   verified   in   terms   of   Rules <\/p>\n
6(6)   of   the   Disqualification   Rules,   1986,   and   that <\/p>\n
the   said   application   was,   therefore,   liable   to   be <\/p>\n
rejected   on   such   ground   also.   Instead   of   rejecting <\/p>\n
the   application   or   even   returning   the   same   for <\/p>\n
proper   verification,   the   Speaker   chose   to   ignore <\/p>\n
the   shortcomings   and   issued   Show-Cause   notices   to <\/p>\n
the   Appellants   in   undue   haste   with   the   oblique <\/p>\n
motive of disqualifying them from the membership of <\/p>\n
the   House   prior   to   the   Trust   Vote   to   be   taken   on <\/p>\n
11th  October,   2010.     Applications   sans   annexures <\/p>\n
were  not  even  served  on  the  Appellants,  but  merely <\/p>\n
pasted   on   the   doors   of   the   official   residence   of <\/p>\n
the Appellants which were locked since the Assembly <\/p>\n
was not in session.  Mr. Nariman submitted that the <\/p>\n
Appellants were granted time till 5.00 p.m. on 10th <\/p>\n
October, 2010, to respond to the Show-Cause notices <\/p>\n
although Rule 7(3) provided for seven days’ time or <\/p>\n
                                                             46<\/span><\/p>\n
more   to   respond   to   such   an   application.     Instead, <\/p>\n
in   complete   violation   of   the   said   Rules,   the <\/p>\n
Appellants   were   given   only   three   days’   time   to <\/p>\n
respond   to   the   Show-Cause   notices   and   even   more <\/p>\n
serious  objection  was  taken  by  Mr.  Nariman  that  it <\/p>\n
was   in   the   Show-Cause   notices   that   for   the   first <\/p>\n
time,   it   was   stated   that   the   actions   of   the <\/p>\n
Appellants   were   in   violation   of   paragraph   2(1)(a) <\/p>\n
of the Tenth Schedule of the Constitution, although <\/p>\n
no   such   specific   averment   had   been   made   by   the <\/p>\n
Respondent   No.1   in   his   application.     It   was   urged <\/p>\n
that   on   account   of   the   short   time   given   by   the <\/p>\n
Speaker   to   the   Appellants   to   respond   to   the   Show-\n<\/p>\n
Cause   notices,   they   could   only   submit   an   interim <\/p>\n
reply   of   a   general   nature   and   it   had   been <\/p>\n
categorically   mentioned   that   on   receipt   of   all   the <\/p>\n
documents   on   which   reliance   had   been   placed,   a <\/p>\n
detailed   response   would   be   given   to   the   Show-Cause <\/p>\n
notices.        Mr.   Nariman   contended   that   certain <\/p>\n
documents   were   made   available   to   the   learned <\/p>\n
                                                                              47<\/span><\/p>\n
Advocate   of   the   Appellants   just   before   the   hearing <\/p>\n
was   to   be   conducted   before   the   Speaker   on   10th <\/p>\n
October, 2010, which contained facts which could be <\/p>\n
answered   only   by   the   Appellants   personally.\n<\/p>\n
However, since the Appellants were not available in <\/p>\n
Karnataka at the relevant point of time, it was not <\/p>\n
possible   for   the   learned   Advocate   appearing   on <\/p>\n
their behalf to respond to the issues raised in the <\/p>\n
additional   documents.     It   was   submitted   that   the <\/p>\n
Speaker   acted   against   all   principles   of   natural <\/p>\n
justice   and   the   propriety   in   taking   on   record   the <\/p>\n
affidavit   affirmed   by   the   State   President   of   the <\/p>\n
Bharatiya   Janata   Party   Shri   K.S.   Eswarappa,   with <\/p>\n
the sole intention of supplying the inadequacies in <\/p>\n
the   Disqualification   Application   filed   by   Shri <\/p>\n
Yeddyurappa.       In   addition,   the   Speaker   also   took <\/p>\n
into   consideration   the   statements   of   retraction <\/p>\n
made   by   Shri   M.P.   Renukacharya   and   Shri   Narasimha <\/p>\n
Nayak   and   allowed   the   same,   whereafter   they <\/p>\n
proceeded         to         make         allegations         against         the <\/p>\n
                                                            48<\/span><\/p>\n
Appellants that they had intended to remove the BJP <\/p>\n
Government   and   to   support   any   Government   led   by <\/p>\n
Shri   H.D.   Kumaraswamy.     Mr.   Nariman   submitted   that <\/p>\n
the Speaker had applied two different yardsticks as <\/p>\n
far   as   the   Appellants   and   Shri   M.P.   Renukacharya <\/p>\n
and Shri Narasimha Nayak are concerned, despite the <\/p>\n
fact that they too had written identical letters to <\/p>\n
the   Governor   withdrawing   support   to   the   Government <\/p>\n
led   by   Shri   Yeddyurappa.     Mr.   Nariman   submitted <\/p>\n
that once Shri M.P. Renukacharya and Shri Narasimha <\/p>\n
Nayak   had   written   to   the   Governor   expressing   their <\/p>\n
decision   to   withdraw   support   to   the   Government <\/p>\n
headed   by   Shri   Yeddyurappa,   the   provisions   of <\/p>\n
paragraph   2(1)(a)   of   the   Tenth   Schedule   came   into <\/p>\n
operation immediately and the Speaker was no longer <\/p>\n
competent to reverse the same.\n<\/p>\n
35.    Mr. Nariman submitted that the action taken by <\/p>\n
the   Speaker   on   the   Disqualification   Application <\/p>\n
filed   against   Shri   M.P.   Renukacharya   and   Shri <\/p>\n
                                                              49<\/span><\/p>\n
Narasimha   Nayak   made   it   obvious   that   such   steps <\/p>\n
were taken by the Speaker to save the membership of <\/p>\n
the said two MLAs to enable them to participate in <\/p>\n
the Trust Vote.  It was also submitted that to make <\/p>\n
matters   worse,   the   Speaker   took   personal   notice <\/p>\n
about   the   statements   allegedly   made   by   the <\/p>\n
Appellants to the effect that they wanted to topple <\/p>\n
the   BJP   Government   and   to   form   a   new   Government <\/p>\n
with   the   others.     It   was   submitted   that   while <\/p>\n
performing an adjudicatory function under the Tenth <\/p>\n
Schedule,   while   holding   a   highly   dignified   office, <\/p>\n
all   personal   knowledge   which   the   Speaker   may   have <\/p>\n
acquired,   should   not   have   been   taken   into <\/p>\n
consideration   in   taking   a   decision   in   the   matter.\n<\/p>\n
In   this   regard,   Mr.   Nariman   referred   to   the <\/p>\n
decision of this Court in S. Partap Singh Vs. State <\/p>\n
of   Punjab  [(1964)   4   SCR   733],   wherein   it   was   held <\/p>\n
that   if   while   exercising   a   power,   an   authority <\/p>\n
takes   into   account   a   factor   which   it   was   not <\/p>\n
entitled   to,   the   exercise   of   the   power   would   be <\/p>\n
                                                              50<\/span><\/p>\n
bad.   However,   where   the   purpose   sought   to   be <\/p>\n
achieved   are   mixed,   some   relevant   and   some   not <\/p>\n
germane   to   the   purpose,   the   difficulty   is   resolved <\/p>\n
by   finding   the   dominant   purpose   which   impelled   the <\/p>\n
action and where the power itself is conditioned by <\/p>\n
a   purpose,   such   exercise   of   power   was   required   to <\/p>\n
be invalidated.\n<\/p>\n
36.    Mr.   Nariman   submitted   that   at   every   stage   the <\/p>\n
Speaker   had   favoured   Shri   Yeddyurappa   and   even <\/p>\n
though Rule 7(2) of the 1986 Rules provided for the <\/p>\n
dismissal of the petition which did not comply with <\/p>\n
the requirements of Rule 6, as in the present case, <\/p>\n
the   Speaker   did   not   do   so.     Even   the   period   of <\/p>\n
seven   days’   which   was   required   to   be   granted   to <\/p>\n
allow   the   Appellants   to   respond   to   the   Show-Cause <\/p>\n
notices,   only   three   days’   time   was   given   to   the <\/p>\n
Appellants   to   submit   their   response   which   could   be <\/p>\n
done   only   in   a   hurried   manner   for   an   interim <\/p>\n
purpose   and   despite   the   request   made   by   the <\/p>\n
                                                                                51<\/span><\/p>\n
Appellants   to   the   Speaker   to   postpone   the   date   in <\/p>\n
order   to   give   the   Appellants   a   proper   opportunity <\/p>\n
of   responding   to   the   allegations   contained   in   the <\/p>\n
Show-Cause   notices,   such   request   was   turned   down <\/p>\n
thereby denying the Appellants a proper opportunity <\/p>\n
of   representing   their   case,   particularly   when <\/p>\n
neither         the         Show-Cause          notices            nor         the <\/p>\n
Disqualification                 Application         filed         by          Shri <\/p>\n
Yeddyurappa   along   with   all   annexures   had   been <\/p>\n
supplied to the Appellants.\n<\/p>\n
37.    Referring   to   the   decisions   which   had   been <\/p>\n
mentioned  by  the  Speaker  in  his  order,  Mr.  Nariman <\/p>\n
pointed out that both in Mahachandra Prasad Singh’s <\/p>\n
case and also in  Ravi S. Naik’s case (supra), this <\/p>\n
Court   had   held   that   the   1986   Rules   were   only <\/p>\n
directory in nature and that as a result the order <\/p>\n
dated   10th  October,   2010,   could   be   questioned   not <\/p>\n
only   on   the   ground   of   violation   of   the   Rules,   but <\/p>\n
in   the   facts   of   the   case   itself.     It   was   pointed <\/p>\n
                                                                        52<\/span><\/p>\n
out  that  in  Mahachandra  Prasad  Singh’s  case  it  had <\/p>\n
never been disputed that the petitioner therein had <\/p>\n
been   elected   to   the   Legislative   Council   on   an <\/p>\n
Indian   National   Congress   ticket   and   had   contested <\/p>\n
Parliamentary           elections         as         an         independent <\/p>\n
candidate.     It   was   submitted   that   it   was   in   such <\/p>\n
background that this Court had held that non-supply <\/p>\n
of   a   copy   of   the   letter   of   the   Leader   of   the <\/p>\n
Congress   Legislative   Party   had   not   caused   any <\/p>\n
prejudice   to   the   petitioner.                      Mr.   Nariman <\/p>\n
reiterated   that   the   Appellants   had   all   said   in <\/p>\n
separate voices that they had not left the BJP and <\/p>\n
had only withdrawn support to the Government led by <\/p>\n
Shri   Yeddyurappa   and   that   they   were   ready   to <\/p>\n
support   any   new   Government   formed   by   the   BJP, <\/p>\n
without Shri Yeddyurappa as its leader.\n<\/p>\n
38.    Mr.   Nariman   also   referred   to   the   decision   of <\/p>\n
this   Court   in  Kihoto   Hollohan’s   case   (supra)   and <\/p>\n
urged   that   the   order   of   disqualification   passed <\/p>\n
                                                            53<\/span><\/p>\n
against   the   Appellants   for   merely   expressing   their <\/p>\n
disagreement   with   the   manner   of   functioning   of   the <\/p>\n
Respondent   No.1   as   Chief   Minister,   had   not   only <\/p>\n
impinged upon the Appellants’ right of free speech, <\/p>\n
as   guaranteed   under   Article   19(1)(a)   of   the <\/p>\n
Constitution, but from a bare reading of the letter <\/p>\n
dated   6th  October,   2010,   written   by   the   Appellants <\/p>\n
to the Governor, it could not be held that the same <\/p>\n
indicated   their   intention   to   voluntarily   give   up <\/p>\n
the   membership   of   the   BJP.     Mr.   Nariman   submitted <\/p>\n
that   the   impugned   orders   and   the   order   of   the <\/p>\n
Speaker dated 10th October, 2010, were unsustainable <\/p>\n
since   they   had   been   engineered   to   prevent   the <\/p>\n
Appellants   from   participating   in   the   Vote   of <\/p>\n
Confidence fixed on 11th October, 2010.\n<\/p>\n
39.    Mr.   P.P.   Rao,   learned   Senior   Advocate,   who <\/p>\n
appeared   for   the   Appellants   in   the   Civil   Appeals <\/p>\n
arising   out   of   Special   Leave   Petition   (Civil) <\/p>\n
Nos.33533-33565 of 2010, submitted that in order to <\/p>\n
                                                            54<\/span><\/p>\n
attract the disqualification clause under paragraph <\/p>\n
2(1)(a) of the Tenth Schedule, Shri Yeddyurappa had <\/p>\n
first   to   establish   that   the   Appellants   had <\/p>\n
voluntarily   given   up   their   membership   of   the   BJP.\n<\/p>\n
It   was   submitted   that   in   the   Disqualification <\/p>\n
Application   filed   by   Shri   Yeddyurappa,   there   is   no <\/p>\n
averment   to   the   said   effect   and   what   has   been <\/p>\n
averred   is   that   the   Appellants   had   withdrawn   their <\/p>\n
support   to   his   government   and   had   informed   the <\/p>\n
Governor of Karnataka about their decision, despite <\/p>\n
there   being   no   decision   in   the   party   in   this <\/p>\n
regard, which made such action a clear violation of <\/p>\n
the   Tenth   Schedule   to   the   Constitution.     Mr.   Rao <\/p>\n
submitted that the Disqualification Application did <\/p>\n
not   even   refer   to   paragraph   2(1)(a)   of   the   Tenth <\/p>\n
Schedule   to   the   Constitution   and   that   the   same <\/p>\n
should,   therefore,   have   been   rejected   by   the <\/p>\n
Speaker in terms of Rule 6(2) of the 1986 Rules.\n<\/p>\n
                                                                                            55<\/span><\/p>\n
40.    Reiterating   Mr.   Nariman’s   submissions,   Mr.   Rao <\/p>\n
submitted   that   withdrawal   of   support   by   the <\/p>\n
Appellants         to          the         Government               led         by         Shri <\/p>\n
Yeddyurappa             did         not         amount         to          voluntarily <\/p>\n
relinquishing   the   membership   of   the   BJP   since   the <\/p>\n
Government   led   by   a   particular   leader   and   the <\/p>\n
political party are not synonymous.     Mr. Rao also <\/p>\n
urged   that   asking   the   Governor   to   institute   the <\/p>\n
constitutional   process   for   replacing   one   Chief <\/p>\n
Minister   by   another,   did   not   also   amount   to <\/p>\n
voluntary   relinquishment   of   the   membership   of   the <\/p>\n
party.  According to Mr. Rao, withdrawal of support <\/p>\n
to   the   incumbent   Chief   Minister   and   intimation <\/p>\n
thereof to the Governor, could, at best, be said to <\/p>\n
be   a   pre-voting   exercise   in   regard   to   the   Vote   of <\/p>\n
Confidence   sought   by   the   Chief   Minister,   but   the <\/p>\n
question of disqualification will arise only if the <\/p>\n
Appellants   voted   in   the   House   contrary   to   the <\/p>\n
directions of the whip issued by the BJP.  However, <\/p>\n
even  such  a  transgression  could  be  condoned  by  the <\/p>\n
                                                              56<\/span><\/p>\n
party   within   15   days   of   such   voting.   Mr.   Rao <\/p>\n
submitted   that   announcement   of   withdrawal   of <\/p>\n
support   to   the   Chief   Minister   before   actual   voting <\/p>\n
in   violation   of   the   whip   would   not   bring   the   case <\/p>\n
within  the  ambit  of  paragraph  2(1)(a)  of  the  Tenth <\/p>\n
Schedule to the Constitution and make him liable to <\/p>\n
disqualification.\n<\/p>\n
41.    Mr. Rao submitted that the minority view taken <\/p>\n
by   N.   Kumar,   J.   that   “dissent”   could   not   be <\/p>\n
regarded   as   defection   was   a   correct   view   and   did <\/p>\n
not   amount   to   voluntarily   relinquishing   membership <\/p>\n
of  the  political  party,  since  such  act  expresses  a <\/p>\n
lack of confidence in the leader of the party, but <\/p>\n
not  in  the  party  itself.  Quoting  the  minority  view <\/p>\n
expressed   by   N.   Kumar,   J.,   Mr.   Rao   submitted   that <\/p>\n
the   object   of   paragraph   2(1)(a)   was   not   to   curb <\/p>\n
internal   democracy   or   the   right   to   dissent,   since <\/p>\n
dissent   is   the   very   essence   of   democracy,   but <\/p>\n
neither   the   Chief   Justice   nor   V.G.   Sabhahit,   J.\n<\/p>\n
                                                                                      57<\/span><\/p>\n
even         adverted         to         such         basic         principle         of <\/p>\n
Parliamentary   democracy   and   erred   in   equating <\/p>\n
withdrawal of support to the Government led by Shri <\/p>\n
B.S.   Yeddyurappa   with   withdrawing   support   to   the <\/p>\n
BJP   Government.                According   to   Mr.   Rao,   the <\/p>\n
Appellants   were   only   doing   their   duty   as   conscious <\/p>\n
citizens   to   expose   the   corruption   and   nepotism   in <\/p>\n
the   Government   led   by   Shri   B.S.   Yeddyurappa.     Mr. <\/p>\n
Rao   referred   to   and   relied   upon   the   decisions   of <\/p>\n
this   Court   in   (1)  State   of   M.P.  Vs.  Ram   Singh <\/p>\n
[(2000)   5   SCC   88]   and   (2)  B.R.   Kapur  Vs.  State   of <\/p>\n
T.N.  [(2001)   7   SCC   231],   wherein,   such   sentiments <\/p>\n
had  also  been  expressed.  Mr.  Rao  contended  that  it <\/p>\n
is   a   well-settled   principle   of   law   that   when   a <\/p>\n
power is conferred by the Statute and the procedure <\/p>\n
for   executing   such   power   is   prescribed,   the   power <\/p>\n
has   to   be   exercised   according   to   the   procedure <\/p>\n
prescribed or not at all.   In this regard, Mr. Rao <\/p>\n
referred   to   the   celebrated   decision   of   the   Privy <\/p>\n
Council  in  Nazir  Ahmad  Vs.  King  Emperor  [63  Indian <\/p>\n
                                                                                         58<\/span><\/p>\n
Appeals   372]   and  State   of   U.P.  Vs.  Singhara   Singh <\/p>\n
[(1964)   4   SCR   485].     Mr.   Rao   urged   that   the   1986 <\/p>\n
Rules had a statutory flavour and had to be treated <\/p>\n
as   part   of   the   Representation   of   the   Peoples   Act, <\/p>\n
1951.     Going   one   step   further,   Mr.   Rao   also   urged <\/p>\n
that   the   Rules   and   Administrative   Instructions   lay <\/p>\n
down   certain   norms   and   guidelines   and   violation <\/p>\n
thereof         would         attract            Article           14         of         the <\/p>\n
Constitution   and   even   if   the   said   Rules   were <\/p>\n
directory,   they   had   to   be   substantially   complied <\/p>\n
with.\n<\/p>\n
42.    Mr.   Rao   also   contended   that   the   order   of <\/p>\n
disqualification passed by the Speaker was vitiated <\/p>\n
by mala fide on the part of the Chief Minister Shri <\/p>\n
Yeddyurappa,           who         filed         the         application                 for <\/p>\n
disqualification   with   the   deliberate   intention   of <\/p>\n
preventing the Appellants from participating in the <\/p>\n
Trust   Vote   to   be   taken   on   11th  October,   2010.       It <\/p>\n
was   urged   that   such  mala   fide  acts   on   the   part   of <\/p>\n
                                                                                     59<\/span><\/p>\n
the   Speaker   would   be   evident   from   the   fact   that <\/p>\n
although   the   Disqualification   Application   did   not <\/p>\n
conform   to   Rules   6(4),   (6)   and   (7)   of   the   1986 <\/p>\n
Rules read with Order VI Rule 15(2)(4) of the Code <\/p>\n
of Civil Procedure, the same was entertained by the <\/p>\n
Speaker   and   a   separate   page   of   verification   was <\/p>\n
subsequently inserted, which ought not to have been <\/p>\n
permitted   by   the   Speaker.     Mr.   Rao   reiterated   the <\/p>\n
submissions         made         by         Mr.         Nariman         that         the <\/p>\n
Disqualification   Application   was   liable   to   be <\/p>\n
dismissed   under   Rule   7(2)   of   the   aforesaid   Rules <\/p>\n
which   says   that   “if   the   petition   does   not   comply <\/p>\n
with   the   requirement   of   Rule   6,   the   Speaker   shall <\/p>\n
dismiss   the   petition   and   intimate   the   petitioner”.\n<\/p>\n
Despite   the   fact   that   the   application   was   not <\/p>\n
properly   verified,   the   same   was   not   dismissed.\n<\/p>\n
Mr.  Rao  submitted  that  in  blatant  disregard  of  the <\/p>\n
above-mentioned   Rules,   the   Speaker   had   entertained <\/p>\n
the defective petition filed by Shri Yeddyurappa in <\/p>\n
complete   disregard   of   Rules   6   and   7   of   the   1986 <\/p>\n
                                                              60<\/span><\/p>\n
Rules.     It   was   submitted   that   the   said   steps   were <\/p>\n
taken   by   the   Speaker   in   a   partisan   manner   and <\/p>\n
against the highest traditions of the Office of the <\/p>\n
Speaker   with   the   obvious   intention   of   bailing   out <\/p>\n
the   Chief   Minister   to   whom   he   owed   his   Chair   as <\/p>\n
Speaker,  which  he  could  lose  if  the  Chief  Minister <\/p>\n
failed   to   win   the   Vote   of   Confidence   in   the <\/p>\n
Assembly.\n<\/p>\n
43.    Mr.   Rao   repeated   Mr.   Nariman’s   submissions <\/p>\n
regarding   the   purported   violation   of   Rule   7(3)   of <\/p>\n
the 1986 Rules, but added that such breach not only <\/p>\n
amounted   to   violation   of   principles   of   natural <\/p>\n
justice but also in violation of Article 14 of the <\/p>\n
Constitution  itself,  as  was  held  in  Union  of  India <\/p>\n
Vs.  Tulsiram   Patel  [(1985)   3   SCC   398].     Mr.   Rao <\/p>\n
submitted   that   this   was   a   clear   case   of   abuse   of <\/p>\n
constitutional   powers   conferred   on   the   Speaker   by <\/p>\n
paragraph   6   of   the   Tenth   Schedule,   with   the   sole <\/p>\n
motive of saving his own Chair and the Chair of the <\/p>\n
                                                                61<\/span><\/p>\n
Chief   Minister.   The   Show-Cause   notice   was   not   only <\/p>\n
unconstitutional   and   illegal,   but   motivated   and <\/p>\n
mala fide and devoid of jurisdiction.\n<\/p>\n
44.    Referring to the judgment of the Chief Justice, <\/p>\n
which   was   in   variance   with   the   decision   of   N.\n<\/p>\n
Kumar, J., Mr. Rao urged that the Chief Justice had <\/p>\n
only   noted   and   considered   ground   “K”   to   the   Writ <\/p>\n
Petition,   without   considering   grounds   C,   D,   F,   H <\/p>\n
and I, which dealt with the very maintainability of <\/p>\n
the   Disqualification   application   on   account   of <\/p>\n
improper   verification.           Mr.   Rao   submitted   that <\/p>\n
indecent   haste   with   which   the   Disqualification <\/p>\n
Application   was   processed   was   clearly   in   violation <\/p>\n
of   the   mandate   of   Rule   7   of   the   1986   Rules,   which <\/p>\n
provided   for   at   least   7   days’   time   to   reply   to   a <\/p>\n
Show-Cause notice issued under Rule 6.\n<\/p>\n
45.    Mr.   Rao   also   submitted   that   despite   pointed <\/p>\n
references   made   to   the   corruption   and   nepotism   in <\/p>\n
the   Government   led   by   Shri   Yeddyurappa,   the   same <\/p>\n
                                                                           62<\/span><\/p>\n
has   not   been   denied   by   Shri   B.S.   Yeddyurappa   and <\/p>\n
this   Court   should   draw   an   adverse   inference   when <\/p>\n
such allegations of bias or  mala fide  had not been <\/p>\n
denied by Shri B.S. Yeddyurappa.\n<\/p>\n
46.       Mr.   Rao   also   repeated   and   reiterated   Mr. <\/p>\n
Nariman’s   submissions   regarding   non-service   of <\/p>\n
Notices   and   copies   of   the   application   and   the <\/p>\n
annexures   thereto   on   the   Appellants   and   the <\/p>\n
introduction   of   the   affidavit   filed   by   Shri   K.S.\n<\/p>\n
Eshwarappa   and   the   Statements   of   Shri   M.P.\n<\/p>\n
Renukacharya   and   Shri   Narasimha   Nayak   without <\/p>\n
serving copies thereof on the Appellants and giving <\/p>\n
them   reasonable   opportunity   to   deal   with   the   same.\n<\/p>\n
It  was  submitted  that  by  adopting  the  procedure  as <\/p>\n
mentioned   above,   the   Speaker   denied   the   Appellants <\/p>\n
a         proper         opportunity         of         contesting         the <\/p>\n
Disqualification   Application   despite   the   fact   that <\/p>\n
the   additional   affidavit   and   the   submissions   made <\/p>\n
by   Shri   M.P.   Renukacharya   and   Shri   Narasimha   Nayak <\/p>\n
                                                                       63<\/span><\/p>\n
contained          factual         allegations         against         the <\/p>\n
Appellants   which   they   could   only   answer.     Mr.   Rao <\/p>\n
submitted   that   the   Speaker   rushed   through   the <\/p>\n
formalities of an enquiry within four days from the <\/p>\n
issuance of the Show-Cause notices knowing that the <\/p>\n
Chief Minister had to face a Confidence Vote in the <\/p>\n
Assembly on 11th October, 2010.\n<\/p>\n
47.    On   the   scope   of   justiceability   of   an   order <\/p>\n
passed   by   the   Speaker   under   paragraph   6   of   the <\/p>\n
Tenth   Schedule   to   the   Constitution,   Mr.   Rao <\/p>\n
submitted   that   such   a   question   had   been   gone   into <\/p>\n
and   settled   by   this   Court   firstly   by   the <\/p>\n
Constitution   Bench   in             Kihoto   Hollohan’s   case <\/p>\n
(supra)   and   thereafter   in  Dr.   Mahachandra   Prasad <\/p>\n
Singh’s case (supra), wherein it had been held that <\/p>\n
Rules   6   and   7   of   the   Disqualification   Rules   were <\/p>\n
directory and not mandatory in nature and hence the <\/p>\n
finality   clause   in   paragraph   6   did   not   completely <\/p>\n
excluded   the   jurisdiction   of   the   Courts   under <\/p>\n
                                                                               64<\/span><\/p>\n
Articles 136, 226 and 227 of the Constitution.   It <\/p>\n
is pointed out that it had been indicated in Kihoto <\/p>\n
Hollohan’s   case   (supra)   that   the   very   deeming <\/p>\n
provision         implies         that         the         proceedings         for <\/p>\n
disqualification   are   not   before   the   House   but   only <\/p>\n
before   the   Speaker   as   a   substantially   distinct <\/p>\n
authority   and   that   the   decision   under   paragraph <\/p>\n
6(1)   of   the   Tenth   Schedule   is   not   the   decision   of <\/p>\n
the   House   nor   is   it   subject   to   approval   of   the <\/p>\n
House   and   that   the   said   decision   operates <\/p>\n
independently   of   the   House.       It   was   accordingly <\/p>\n
held  that  there  was  no  immunity  under  Articles  122 <\/p>\n
and   212   from   judicial   scrutiny   of   the   decision   of <\/p>\n
the   Speaker   or   Chairman   exercising   powers   under <\/p>\n
paragraph   6(1)   of   the   Tenth   Schedule.     Mr.   Rao <\/p>\n
pointed   out   that   paragraph   100   of   the   decision   in <\/p>\n
Kihoto Hollohan’s case (supra) declares the Speaker <\/p>\n
or   the   Chairman   acting   under   paragraph   6   of   the <\/p>\n
Tenth Schedule to be a Tribunal.  Mr. Rao submitted <\/p>\n
that the view taken in  Ravi S. Naik’s case (supra) <\/p>\n
                                                              65<\/span><\/p>\n
that the Disqualification Rules being procedural in <\/p>\n
nature,   any   violation   of   the   same   would   amount   to <\/p>\n
irregularity   in   procedure   which   was   immune   from <\/p>\n
judicial scrutiny in view of Rule 6(2) of the 1986 <\/p>\n
Rules,   was   an   inaccurate   statement   of   law   in   view <\/p>\n
of the decision of the Constitution Bench in Kihoto <\/p>\n
Hollohan’s  case  (supra).    Mr.  Rao  also  pointed  out <\/p>\n
that   the   decision   in  Ravi   S.   Naik’s   case   (supra) <\/p>\n
had been considered by a Bench of 3 Judges of this <\/p>\n
Court   in  Mayawati  Vs.  Markandeya   Chand  [(1998)   7 <\/p>\n
SCC  517],  wherein  K.T.  Thomas  J.  had  observed  that <\/p>\n
the decision in Kihoto Hollohan’s case had not been <\/p>\n
considered   in  Ravi   S.   Naik’s   case   in   its   proper <\/p>\n
perspective.   M. Srinivasan, J. did not agree with <\/p>\n
the   views   expressed   by   K.T.   Thomas,   J.   and   quoted <\/p>\n
approvingly   from   the   decision   in  Ravi   S.   Naik’s <\/p>\n
case   (supra).     However,   Chief   Justice   M.M.   Punchhi <\/p>\n
took   the   view   that   the   matter   was   required   to   be <\/p>\n
referred   to   a   Constitution   Bench,   as   the   decision <\/p>\n
in  Kihoto  Hollohan’s  case  (supra)  is  silent  on  the <\/p>\n
                                                                                              66<\/span><\/p>\n
question   as   to   whether   cognizance   taken   by   the <\/p>\n
Speaker         of         the      occurrence                 of      a      split            is <\/p>\n
administrative   in   nature,   unconnected   with   the <\/p>\n
decision   making   process   or   is   it   an   adjunct <\/p>\n
thereto.     Mr.   Rao   submitted   that   the   decision   in <\/p>\n
Dr.   Mahachandra   Prasad   Singh’s   case   (supra) <\/p>\n
suffered from the same vice and was, therefore, per  <\/p>\n
incuriam.\n<\/p>\n
48.    Mr.         Rao         also         contended              that          the         view <\/p>\n
subsequently   taken   by   the   Constitution   Bench   in <\/p>\n
Rajendra Singh Rana Vs. Swami Prasad Maurya [(2007) <\/p>\n
4   SCC   270]   that   the   failure   on   the   part   of   the <\/p>\n
Speaker            to          decide            an         application               seeking <\/p>\n
disqualification cannot be said to be merely in the <\/p>\n
realm   of   procedure,   goes   against   the   very <\/p>\n
constitutional   scheme   contemplated   under   the   Tenth <\/p>\n
Schedule,   read   in   the   context   of   Articles   102   and <\/p>\n
191 of the Constitution.  It was also observed that <\/p>\n
it   also   went   against   the   Rules   framed   in   that <\/p>\n
                                                                               67<\/span><\/p>\n
behalf   and   the   procedure   that   was   expected   to   be <\/p>\n
followed   by   the   Speaker.   It   was   further   observed <\/p>\n
that the lapse on the part of the Speaker amounted <\/p>\n
to   jurisdictional   error.   Mr.   Rao   urged   that   the <\/p>\n
pronouncement   in   the   aforesaid   case   was   final   on <\/p>\n
this   aspect   of   the   matter   and   was   required   to   be <\/p>\n
reiterated in the present case.\n<\/p>\n
49.    The   submissions   made   on   behalf   of   the <\/p>\n
Appellants   were   strongly   opposed   by   Mr.   Soli   J.\n<\/p>\n
Sorabjee, learned Senior Advocate appearing for the <\/p>\n
Respondent   No.1,   Shri   B.S.   Yeddyurappa,   Chief <\/p>\n
Minister   of   Karnataka.   He   identified   six   issues <\/p>\n
which,  according  to  him,  had  arisen  in  the  Appeals <\/p>\n
for         consideration.         The         same         are         reproduced <\/p>\n
hereinbelow:-\n<\/p>\n
       (i)      The   extent   and   scope   of   Judicial <\/p>\n
                Review   available   against   the   order <\/p>\n
                of the Speaker passed in exercise of <\/p>\n
                powers   under   the   Tenth   Schedule   to <\/p>\n
                the Constitution.\n<\/p>\n
                                                                   68<\/span><\/p>\n
       (ii)     Whether            the            Karnataka <\/p>\n
                Disqualification   Rules   framed   in <\/p>\n
                exercise of powers under paragraph 8 <\/p>\n
                of   the   Tenth   Schedule   are   directory <\/p>\n
                and procedural in nature and whether <\/p>\n
                judicial review is available against <\/p>\n
                an alleged breach of the said Rules?\n<\/p>\n
       (iii)    Whether the Speaker’s order impugned <\/p>\n
                herein is mala fide?\n<\/p>\n
       (iv)     Whether   Speaker’s   order   can   be   said <\/p>\n
                to   be   vitiated   on   account   of   non-\n<\/p>\n
                compliance   with   the   principles   of <\/p>\n
                natural justice?\n<\/p>\n
       (v)      The   scope   of   paragraph   2(1)(a)   of <\/p>\n
                the Tenth schedule; and <\/p>\n
       (vi)     Whether the Speaker’s inference from <\/p>\n
                the   conduct   of   the   MLA’s   in   the <\/p>\n
                present case that they have given up <\/p>\n
                the   membership   of   the   political <\/p>\n
                party   to   which   they   belong,   can   be <\/p>\n
                said to be `perverse’?\n<\/p>\n
50.    It   was   submitted   that   the   scope   of   judicial <\/p>\n
review   of   the   order   of   the   Speaker   of   the <\/p>\n
Legislative   Assembly   was   extremely   limited   in   view <\/p>\n
of   the   finality   attached   to   the   Speaker’s   order <\/p>\n
under   paragraph   6(1)   of   the   Tenth   Schedule.     Mr. <\/p>\n
Sorabjee   submitted   that   in  Kihoto   Hollohan’s   case <\/p>\n
                                                             69<\/span><\/p>\n
this Court had held that the immunity granted under <\/p>\n
sub-paragraph  (2)  of  paragraph  6  was  in  respect  of <\/p>\n
the   procedural   aspect   of   the   disqualification <\/p>\n
proceedings,   but   that   the   decision   itself   was   not <\/p>\n
totally   immune   from   judicial   scrutiny.   However, <\/p>\n
having   regard   to   the   finality   attached   to   the <\/p>\n
decision   of   the   Speaker,   as   indicated   in   sub-\n<\/p>\n
paragraph   (1),   judicial   review   of   the   said   order <\/p>\n
would   be   confined   to   infirmities   based   on   (a) <\/p>\n
violation   of   constitutional   mandate;   (b)           mala  <\/p>\n
fides; (c) non-compliance with the rules of natural <\/p>\n
justice; and (d) perversity. Mr. Sorabjee submitted <\/p>\n
that   the   Speaker’s   order   impugned   in   these <\/p>\n
proceedings   did   not   suffer   from   any   of   the <\/p>\n
infirmities   mentioned   in   paragraph   6(1)   of   the <\/p>\n
Tenth   Schedule   to   the   Constitution   and   that   on <\/p>\n
account   of   the   decision   in  Kihoto   Hollohan’s   case <\/p>\n
(supra),   the   decision   of   the   Speaker   could   not   be <\/p>\n
assailed even on the ground of violation of any of <\/p>\n
the Rules framed by the Speaker.\n<\/p>\n
                                                              70<\/span><\/p>\n
51.    Relying   heavily   on   the   decision   of   this   Court <\/p>\n
in   Ravi   S.   Naik’s   case   (supra),   Mr.   Sorabjee <\/p>\n
pointed out that this Court had held that the 1986 <\/p>\n
Rules  had  been  framed  to  regulate  the  procedure  to <\/p>\n
be   followed   by   the   Speaker   for   exercising   his <\/p>\n
powers   under   paragraph   6(1)   of   the   Tenth   Schedule.\n<\/p>\n
The   same   are,   therefore,   procedural   in   nature   and <\/p>\n
any   violation   thereof   would   be   a   procedural <\/p>\n
irregularity which is immune from judicial scrutiny <\/p>\n
in view of the provisions of paragraph 6(2) as was <\/p>\n
construed   by   this   Court   in  Kihoto   Hollohan’s   case <\/p>\n
(supra).     Mr.   Sorabjee   submitted   that   the   1986 <\/p>\n
Rules   framed   by   the   Speaker   being   subordinate <\/p>\n
legislation, the same could not be equated with the <\/p>\n
provisions   of   the   Constitution   and   could   not, <\/p>\n
therefore,   be   regarded   as   constitutional   mandates <\/p>\n
and   violation   of   the   1986   Rules   did   not   afford   a <\/p>\n
ground   for   judicial   review   of   the   order   of   the <\/p>\n
Speaker.\n<\/p>\n
                                                             71<\/span><\/p>\n
52.    Mr. Sorabjee also placed strong reliance on the <\/p>\n
decision   of   this   Court   in  Dr.   Mahachandra   Prasad <\/p>\n
Singh’s   case   (supra),   wherein   the   same   view   was <\/p>\n
reiterated.     It   was   observed   that   the   Rules   being <\/p>\n
in   the   domain   of   procedure,   they   were   intended   to <\/p>\n
facilitate   the   holding   of   an   inquiry   and   not   to <\/p>\n
frustrate   or   obstruct   the   same   by   introducing <\/p>\n
innumerable technicalities.  Mr. Sorabjee submitted <\/p>\n
that   the   Rules   being   directory,   any   alleged   breach <\/p>\n
thereof   cannot   also   be   a   ground   for   striking   down <\/p>\n
the Speaker’s order or make the same susceptible to <\/p>\n
judicial  review  as  per  the  parameters  laid  down  in <\/p>\n
Kihoto   Hollohan’s   case   (supra).   It   was   also <\/p>\n
submitted that the power of the Speaker flowed from <\/p>\n
the   Tenth   Schedule   and   was   not   dependent   on   the <\/p>\n
framing of Rules and even in the absence of Rules, <\/p>\n
the Speaker always has the authority to resolve any <\/p>\n
dispute   raised   before   him,   without   any   fetter   on <\/p>\n
his powers by the Rules.\n<\/p>\n
                                                                72<\/span><\/p>\n
53.    As   to   the   period   of   three   days   given   to   the <\/p>\n
Appellants   to   reply   to   the   Show-Cause   notices, <\/p>\n
instead of seven days mentioned in Rule 7(3) of the <\/p>\n
1986   Rules,   Mr.   Sorabjee   submitted   that   it   was <\/p>\n
quite  clear  that  the  use  of  the  expression  “within <\/p>\n
7 days” clearly indicated that the full period of 7 <\/p>\n
days   was   not   required   to   be   given   by   the   Speaker <\/p>\n
for   showing   cause   by   the   Member   concerned.     Mr. <\/p>\n
Sorabjee  submitted  that  since  the  period  of  7  days <\/p>\n
was   the   maximum   period   prescribed,   it   did   not <\/p>\n
circumscribe   the   Speaker’s   authority   to   require <\/p>\n
such   response   to   the   Show-Cause   notice   within   a <\/p>\n
lesser period and, in any event, the said issue was <\/p>\n
a non-starter since the Rules had been held by this <\/p>\n
Court   to   be   directory   and   not   mandatory.     In   any <\/p>\n
event, in  Ravi S. Naik’s  case (supra), it had been <\/p>\n
observed   that   while   applying   the   principles   of <\/p>\n
natural   justice,   it   had   to   be   kept   in   mind   that <\/p>\n
“they   were   not   cast   in   a   rigid   mould   nor   can   they <\/p>\n
be   put   in   a   legal   strait   jacket.”   Mr.   Sorabjee <\/p>\n
                                                            73<\/span><\/p>\n
submitted that the same view had been reiterated in <\/p>\n
Jagjit Singh’s case (supra) and the contention that <\/p>\n
the   Speaker   ought   not   to   have   relied   upon   his <\/p>\n
personal knowledge was specifically rejected in the <\/p>\n
said case.\n<\/p>\n
54.    Mr.   Sorabjee   urged   that   this   Court   in  Kihoto <\/p>\n
Hollohan’s   case   (supra)   had   drawn   a   distinction <\/p>\n
between   the   procedure   followed   by   the   Speaker   and <\/p>\n
the decision rendered by him and had held that the <\/p>\n
procedure   followed   would   be   immune   from   judicial <\/p>\n
review,   being   administrative   in   nature,   though   the <\/p>\n
decision   could   be   challenged   on   grounds   of <\/p>\n
jurisdictional   errors.     It   was   urged   that   in   any <\/p>\n
event   the   decision   in  Ravi   S.   Naik’s   case   (supra) <\/p>\n
which   had   been   subsequently   approved   in          Dr. <\/p>\n
Mahachandra   Prasad   Singh’s   case   (supra)   is   binding <\/p>\n
upon this Bench, having been rendered by a Bench of <\/p>\n
three Judges.\n<\/p>\n
                                                             74<\/span><\/p>\n
55.    As far as the charge of  mala fides  against the <\/p>\n
Speaker   is   concerned,   Mr.   Sorabjee   submitted   that <\/p>\n
such   a   charge   was   not   maintainable   since   the <\/p>\n
Speaker   had   been   made   a   Respondent   in   the <\/p>\n
proceedings not in his personal capacity but in his <\/p>\n
capacity as Speaker.   It was contended that as had <\/p>\n
been   held   by   this   Court   in  Sangramsinh   P.   Gaekwad <\/p>\n
Vs.  Shantadevi   P.   Gaekwad  [(2005)   11   SCC   314], <\/p>\n
allegation of mala fide has to be pleaded with full <\/p>\n
particulars  in  support  of  the  charge.    Making  bald <\/p>\n
allegations   that   the   Chief   Minister   had   influenced <\/p>\n
the  Speaker  to  get  the  Appellants  removed  from  the <\/p>\n
membership   of   the   House   before   the   Trust   Vote <\/p>\n
scheduled to be held on 11th  October, 2010, without <\/p>\n
any   material   in   support   of   such   allegations,   could <\/p>\n
not and did not amount to mala fides on the part of <\/p>\n
the   Speaker.       Mr.   Sorabjee   submitted   that   as   was <\/p>\n
also observed in the case of E.P. Royappa Vs. State <\/p>\n
of Tamil Nadu  [(1974) 4 SCC 3], the allegations of <\/p>\n
mala   fide  are   often   more   easily   made   than   proved <\/p>\n
                                                                                 75<\/span><\/p>\n
and   the   very   seriousness   of   such   allegations <\/p>\n
demands proof of a high order of credibility.\n<\/p>\n
56.     Mr.   Sorabjee   submitted   that   coupled   with   the <\/p>\n
allegation   of  mala   fides  was   the   allegation   that <\/p>\n
the   Speaker   had   conducted   the   entire   exercise   of <\/p>\n
disqualifying the Appellants from the membership of <\/p>\n
the House in great haste so that they would not be <\/p>\n
able   to   participate   in   the   Trust   Vote.                               Mr. <\/p>\n
Sorabjee submitted that proceedings under the Tenth <\/p>\n
Schedule have to be decided as early as possible in <\/p>\n
order   to   avoid   the   participation   of   a   disqualified <\/p>\n
Member in the House.  It was contended that in view <\/p>\n
of   the   decision   of   the   Constitution   Bench   in <\/p>\n
Rajendra   Singh   Rana’s   case,   the   Speaker   was   under <\/p>\n
an obligation to decide the issue of eligibility of <\/p>\n
the   Member   to   cast   his   vote   before   the   Confidence <\/p>\n
Vote  was  taken.  Mr.  Sorabjee  submitted  that  as  had <\/p>\n
been         held         in     Rajendra         Singh         Rana’s         case, <\/p>\n
disqualification   occurs   on   the   date   of   the   act   of <\/p>\n
                                                             76<\/span><\/p>\n
the   Member   and   not   on   the   date   of   the   Speaker’s <\/p>\n
order.   Applying   the   said   analogy   to   the   facts   of <\/p>\n
this   case,   it   had   to   be   presumed   that   the <\/p>\n
disqualification   had   already   occurred   when   the <\/p>\n
concerned   Member   had   presented   his   letter   to   the <\/p>\n
Governor   and   as   a   result   since   the   Vote   of <\/p>\n
Confidence  was  fixed  for  the  next  day,  the  Speaker <\/p>\n
had   no   option   but   to   decide   the   question   of <\/p>\n
disqualification   before   the   Vote   of   Confidence   was <\/p>\n
taken.    Mr.  Sorabjee  submitted  that  even  N.  Kumar, <\/p>\n
J.   while   dissenting   from   the   order   of   the   Chief <\/p>\n
Justice,   concurred   with   him   on   the   issue   regarding <\/p>\n
absence of mala fides on the part of the Speaker.\n<\/p>\n
57.    Mr.   Sorabjee   urged   that   although   various <\/p>\n
charges   had   been   made   against   the   Appellants,   they <\/p>\n
had  neither  denied  the  same  before  the  Speaker  nor <\/p>\n
in  the  Writ  Petition  nor  in  the  proceedings  before <\/p>\n
the   High   Court,   which   gave   rise   to   a   presumption <\/p>\n
that there was a ring of truth in such allegations.\n<\/p>\n
                                                             77<\/span><\/p>\n
Mr.  Sorabjee  urged  that  the  case  of  the  Appellants <\/p>\n
that   they   had   not   been   provided   a   proper <\/p>\n
opportunity   of   dealing   with   and   replying   to   the <\/p>\n
Show-Cause notices, was completely incorrect, since <\/p>\n
they   had   sent   detailed   replies   to   the   Speaker   in <\/p>\n
response to the Show-Cause notices.\n<\/p>\n
58.    Mr.   Sorabjee   submitted   that   after   detailed <\/p>\n
replies   had   been   filed   by   the   Appellants,   a   full-\n<\/p>\n
fledged   hearing   had   been   given   to   them   and   hence <\/p>\n
the   Appellants   did   not   suffer   any   prejudice   on <\/p>\n
account  of  the  procedure  adopted  by  the  Speaker  in <\/p>\n
disposing   of   Shri   Yeddyurappa’s   Disqualification <\/p>\n
application.\n<\/p>\n
59.    On   the   question   as   to   whether   the   Appellants <\/p>\n
incurred   disqualification   under   paragraph   2(1)(a) <\/p>\n
of  the  Tenth  Schedule  on  account  of  their  conduct, <\/p>\n
Mr. Sorabjee submitted that it was settled law that <\/p>\n
for   a   Member   to   incur   disqualification   under <\/p>\n
paragraph 2(1)(a) of the Tenth Schedule, he was not <\/p>\n
                                                            78<\/span><\/p>\n
required  to  formally  resign  from  the  party,  but  an <\/p>\n
inference   to   that   effect   could   be   drawn   from   his <\/p>\n
conduct   which   may   be   incompatible   with   his <\/p>\n
political allegiance to the Party. Relying again on <\/p>\n
paragraph 11 of the decision in Ravi S. Naik’s case <\/p>\n
(supra), Mr. Sorabjee submitted that a person could <\/p>\n
voluntarily   give   up   his   membership   of   a   political <\/p>\n
party,   even   without   tendering   his   resignation   from <\/p>\n
the membership of that party and in the absence of <\/p>\n
a   formal   resignation   from   the   membership,   an <\/p>\n
inference   can   be   drawn   from   the   conduct   of   the <\/p>\n
Member   that   he   had   voluntarily   given   up   his <\/p>\n
membership   of   the   political   party   to   which   he <\/p>\n
belonged.       Mr.   Sorabjee   submitted   that   the   view <\/p>\n
expressed   in  Ravi   S.   Naik’s   case   (supra)   had   been <\/p>\n
reiterated   in  Jagjit   Singh’s   case   (surpa)   and   had <\/p>\n
also   been   approved   by   the   Constitution   Bench   in <\/p>\n
Rajendra Singh Rana’s case (supra).\n<\/p>\n
                                                             79<\/span><\/p>\n
60.    Once again referring to the letters written by <\/p>\n
the   Appellants   withdrawing   support   from   the <\/p>\n
Government   of   their   own   political   party   and <\/p>\n
asserting  that  a  situation  had  arisen  in  which  the <\/p>\n
governance of the State could not be carried on in <\/p>\n
accordance with the provisions of the Constitution, <\/p>\n
Mr.   Sorabjee   submitted   that   the   language   of   the <\/p>\n
letters   submitted   by   the   Appellants   contemplated   a <\/p>\n
situation   where   the   governance   of   the   State   could <\/p>\n
not   be   carried   out   in   accordance   with   the <\/p>\n
provisions   of   the   Constitution.     It   was   submitted <\/p>\n
that   the   reproduction   of   the   words   of   Article   356 <\/p>\n
of   the   Constitution,   which   enables   imposition   of <\/p>\n
President’s   Rule   and   dissolution   of   the   Assembly, <\/p>\n
coupled   with   the   request   to   the   Governor   to <\/p>\n
intervene   and   initiate   the   constitutional   process, <\/p>\n
could only mean that the Appellants had voluntarily <\/p>\n
resigned from the Bharatiya Janata Party and wanted <\/p>\n
President’s Rule to be imposed in the State.\n<\/p>\n
                                                            80<\/span><\/p>\n
61.    Mr.   Sorabjee   submitted   that   there   is   no <\/p>\n
constitutional   provision   which   permits   the   Members <\/p>\n
of   a   House   from   withdrawing   support   to   the   Chief <\/p>\n
Minister   alone.        It   is   the   entire   Council   of <\/p>\n
Ministers   that   is   collectively   responsible   to   the <\/p>\n
House.     In   other   words,   a   Vote   of   Confidence   is <\/p>\n
expressed   in   the   entire   Council   of   Ministers   and <\/p>\n
not in the Chief Minister alone.   According to Mr. <\/p>\n
Sorabjee,   the   arguments   advanced   on   behalf   of   the <\/p>\n
Appellants,   that   expression   of   honest   political <\/p>\n
dissent   must   not   be   seen   as   defection,   had   been <\/p>\n
rejected   in  Kihoto   Hollohan’s   case   (supra)   where <\/p>\n
this   Hon’ble   Court   observed   that   a   political   party <\/p>\n
functions   on   the   strength   of   shared   beliefs.   Its <\/p>\n
own   political   stability   and   social   utility   depends <\/p>\n
on  such  shared  beliefs  and  concerted  action  of  its <\/p>\n
Members   in   furtherance   of   those   commonly   held <\/p>\n
principles.   Any freedom of its Members to vote as <\/p>\n
they   please   independent   of   the   political   party’s <\/p>\n
declared   policies,   would   not   only   embarrass   its <\/p>\n
                                                                              81<\/span><\/p>\n
public   image   and   popularity   but   also   undermine <\/p>\n
public confidence in it.              Mr.          Sorabjee         submitted <\/p>\n
that   it   necessarily   follows   that   as   long   as   a <\/p>\n
Member professes to belong to a political party, he <\/p>\n
must   abide   by   and   be   bound   by   the   decision   of   the <\/p>\n
majority   within   the   party.     He   is   free   to   express <\/p>\n
dissent   within   the   party   platform,   but   disparate <\/p>\n
stands   in   public   or   public   display   of   revolt <\/p>\n
against   the   party,   undeniably   undermines   the   very <\/p>\n
foundation   of   the   party.       The   very   object   of   the <\/p>\n
Tenth   Schedule   was   to   bring   about   political <\/p>\n
stability   and   prevent   members   from   conspiring   with <\/p>\n
the opposite party.\n<\/p>\n
62.    Having   dealt   with   the   disqualification   of   the <\/p>\n
Appellants   by   the   Speaker,   Mr.   Sorabjee   next   took <\/p>\n
up      the      question      of      the      rejection             of      the <\/p>\n
disqualification   application   in   relation   to   Shri <\/p>\n
M.P.   Renukacharya   and   Shri   Narasimha   Nayak,   who <\/p>\n
were among the 13 MLAs who had submitted individual <\/p>\n
                                                                             82<\/span><\/p>\n
but   identical   letters   to   the   Governor   withdrawing <\/p>\n
support   to   the   Bharatiya   Janata   Party   Government <\/p>\n
led   by   Shri   B.S.   Yeddyurappa,   on   the   ground   that <\/p>\n
they   had   lost   confidence   in   him   in   view   of   the <\/p>\n
corruption         and         nepotism         prevalent         in         the <\/p>\n
administration   under   him.   It   was   pointed   out   that <\/p>\n
the Speaker had made a distinction between the said <\/p>\n
two   MLAs   and   the   other   eleven   on   the   ground   that <\/p>\n
while the other two MLAs had retracted their letter <\/p>\n
to  the  Governor,  they  had  also  indicated  that  they <\/p>\n
had   full   faith   in   the   Government   led   by   Shri <\/p>\n
Yeddyurappa,   whereas   the   Appellants   had   simply <\/p>\n
indicated   that   they   were   willing   to   support   any <\/p>\n
other   Government   formed   by   the   Bharatiya   Janata <\/p>\n
Party,   but   with   a   different   Chief   Minister.     Mr. <\/p>\n
Sorabjee   submitted   that   while   the   two   MLAs   had <\/p>\n
retracted   their   letters   to   the   Governor   upon <\/p>\n
reiterating   their   faith   in   the   Government   led   by <\/p>\n
Shri   Yeddyurappa,   the   Appellants   were   bent   upon <\/p>\n
bringing down the Bharatiya Janata Party Government <\/p>\n
                                                                              83<\/span><\/p>\n
with   the   ulterior   motive   of   forming   a   new <\/p>\n
Government   with   the   Members   of   the   opposition.   It <\/p>\n
was   submitted   that   the   concept   of   collective <\/p>\n
responsibility   is   essentially   a   political   concept.\n<\/p>\n
The   Cabinet   which   takes   a   collective   decision <\/p>\n
relating to policy stands or falls together and any <\/p>\n
individual   member   of   the   Government   cannot   show   a <\/p>\n
face   which   is   different   from   that   of   the   Cabinet, <\/p>\n
as   anything   contrary   would   contribute   to   serious <\/p>\n
weakening of the Government itself.\n<\/p>\n
63.    Mr.   Sorabjee   submitted   that   even   if   the <\/p>\n
Speaker’s  decision  was  wrong,  it  could  not  be  said <\/p>\n
to   be   a   perverse   order,   since   there   was   no <\/p>\n
deviation   from   the   accepted   rules   and   norms   which <\/p>\n
had   prejudiced   the   Appellants.     It   was   also   urged <\/p>\n
that  while  the  Chief  Justice  and  V.G.  Sabhahit,  J.\n<\/p>\n
had   taken   one   view,   N.   Kumar,   J.   had   taken   a <\/p>\n
different         view,         which         only         reinforced         the <\/p>\n
proposition   that   in   this   case   two   views   are <\/p>\n
                                                              84<\/span><\/p>\n
possible   since   the   majority   decision   was   that   the <\/p>\n
view   of   the   Speaker   could   not   be   regarded   as <\/p>\n
perverse, the Appeals were liable to be dismissed.\n<\/p>\n
64.    In   addition   to   the   submissions   made   by   Mr. <\/p>\n
Sorabjee,   which   he   adopted,   Shri   Satyapal   Jain, <\/p>\n
appearing for Shri Yeddyurappa in the several Civil <\/p>\n
Appeals,   submitted   that   two   other   issues   were   also <\/p>\n
required   to   be   taken   into   consideration,   namely, <\/p>\n
(1)   whether   the   Appellants   had   been   prejudiced   by <\/p>\n
the   action   of   the   Speaker;   and   (2)   whether   the <\/p>\n
action   of   withdrawing   support   from   the   Chief <\/p>\n
Minister   amounted   to   voluntarily   giving   up   the <\/p>\n
membership   of   the   Bharatiya   Janata   Party   which <\/p>\n
disqualified   them   under   paragraph   2(i)(a)   of   the <\/p>\n
Tenth Schedule.\n<\/p>\n
65.    Mr.   Jain   submitted   that   the   crucial   facts   had <\/p>\n
not   been   denied   by   the   Appellants   and   hence   it <\/p>\n
could   not   be   said   that   any   prejudice   had   been <\/p>\n
caused   to   them.       Mr.   Jain   submitted   that   it   was <\/p>\n
                                                             85<\/span><\/p>\n
for   the   Appellants   to   deny   the   allegations   made <\/p>\n
regarding their moving in a group from Karnataka to <\/p>\n
Goa and to other places where they had issued press <\/p>\n
releases   stating   that   they   were   together   and   had <\/p>\n
withdrawn   support   to   the   Government.   Mr.   Jain   also <\/p>\n
submitted   that   the   Appellants   had   not   denied   the <\/p>\n
allegation   that   they   had   negotiated   with   another <\/p>\n
party   of   the   State   led   by   Shri   H.D.   Kumaraswamy, <\/p>\n
exploring   the   possibility   of   forming   an   alternate <\/p>\n
Government.\n<\/p>\n
66.    Mr. Jain submitted that apart from denying the <\/p>\n
allegations made against them, the Appellants could <\/p>\n
not   establish   that   they   had   in   any   way   been <\/p>\n
prejudiced   by   the   order   passed   by   the   Speaker   and <\/p>\n
such fact had been duly noted by the Chief Justice <\/p>\n
in his judgment.\n<\/p>\n
67.    On   the   question   of   construction   of   paragraph <\/p>\n
2(1)(a)   of   the   Tenth   Schedule   to   the   Constitution, <\/p>\n
Mr.   Jain   reiterated   the   submissions   made   by   Mr. <\/p>\n
                                                              86<\/span><\/p>\n
Sorabjee   relying   on   the   decision   of   this   Court   in <\/p>\n
Ravi   S.   Naik’s   case   (supra)   which   was   upheld   in <\/p>\n
Rajendra Singh Rana’s case (supra).\n<\/p>\n
68.    Mr.   Jain   submitted   that   even   the   question   of <\/p>\n
not having received the copy of the notice sent by <\/p>\n
the   Speaker   was   a   clear   afterthought,   since <\/p>\n
detailed  replies  had  been  submitted  by  them  and  if <\/p>\n
the   Appellants   had   to   differ   with   the   functioning <\/p>\n
of  Shri  Yeddyurappa,  they  should  have  taken  up  the <\/p>\n
matter   within   the   party   without   writing   to   the <\/p>\n
Governor withdrawing their support to the Bharatiya <\/p>\n
Janata   Party   Government   led   by   Shri   Yeddyurappa.\n<\/p>\n
Mr.   Jain   submitted   that   it   was   quite   obvious   from <\/p>\n
the   letters   written   by   the   Appellants   to   the <\/p>\n
Governor   that   they   were   bent   upon   effecting   the <\/p>\n
fall   of   the   Bharatiya   Janata   Party   Government,   led <\/p>\n
by Shri Yeddyurappa, in breach of party discipline, <\/p>\n
and,   as   a   result,   the   order   passed   by   the   Speaker <\/p>\n
                                                                                        87<\/span><\/p>\n
was   fully   justified   and   did   not   warrant   any <\/p>\n
interference in these proceedings.\n<\/p>\n
69.    The   main   questions   which   emerge   from   the <\/p>\n
submissions   made   on   behalf   of   the   respective <\/p>\n
parties and the facts of the case may be summarised <\/p>\n
as follows :\n<\/p>\n
       (a)    Did the Appellants voluntarily give up <\/p>\n
              their   membership   of   the   Bharatiya <\/p>\n
              Janata Party?\n<\/p><\/blockquote>\n
       (b)    Since   only   three   days’   time   was   given <\/p>\n
              to   the   Appellants   to   reply   to   the <\/p>\n
              Show-Cause   notices,   as   against   the <\/p>\n
              period   of   7   days   or   more,   prescribed <\/p>\n
              in   Rule   7(3)   of   the   Disqualification <\/p>\n
              Rules, were the said notices vitiated?\n<\/p><\/blockquote>\n
       (c)    Did   the   Speaker   act   in   hot   haste   in <\/p>\n
              disposing         of         the         Disqualification <\/p>\n
              Application             filed            by         Shri         B.S.\n<\/p><\/blockquote>\n
                                                                                 88<\/span><\/p>\n
              Yeddyurappa   introducing   a   whiff   of <\/p>\n
              bias as to the procedure adopted?\n<\/p><\/blockquote>\n
       (d)    What   is   the   scope   of   judicial   review <\/p>\n
              of   an   order   passed   by   the   Speaker <\/p>\n
              under   Paragraph   2(1)(a)   of   the   Tenth <\/p>\n
              Schedule   to   the   Constitution,   having <\/p>\n
              regard   to   the   provisions   of   Article <\/p>\n
              212 thereof?\n<\/p><\/blockquote>\n
70.    The   facts   of   the   case   reveal   that   the <\/p>\n
Appellants   along   with   Shri   M.P.   Renukacharya   and <\/p>\n
Shri   Narasimha   Nayak,   wrote   identical   letters   to <\/p>\n
the   Governor   on   6th  October,   2010,   indicating   that <\/p>\n
as   MLAs   of   the   Bharatiya   Janata   Party   they   had <\/p>\n
become   disillusioned   with   the   functioning   of   the <\/p>\n
Government   headed   by   Shri   B.S.   Yeddyurappa.\n<\/p>\n
According to them, there was widespread corruption, <\/p>\n
nepotism, favouritism, abuse of power and misuse of <\/p>\n
Government   machinery   in   the   functioning   of   the <\/p>\n
Government            headed         by         Chief         Minister,         Shri <\/p>\n
                                                                                     89<\/span><\/p>\n
Yeddyurappa,  and   that   a   situation   had   arisen   when <\/p>\n
the governance of the State could not be carried on <\/p>\n
in         accordance         with         the         provisions         of         the <\/p>\n
Constitution  (Emphasis   added).     Accordingly,   they <\/p>\n
were   withdrawing   their   support   from   the   Government <\/p>\n
headed   by   Shri   Yeddyurappa   with   a   request   to   the <\/p>\n
Governor   to   intervene   and   to                         institute   the <\/p>\n
constitutional   process   as   the   constitutional   head <\/p>\n
of the State (Emphasis added).\n<\/p>\n
71.        The Speaker took the view that the said letter <\/p>\n
and   the   conduct   of   the   Appellants   in   moving   from <\/p>\n
Karnataka   to   Goa   and   other   places   and   issuing <\/p>\n
statements   both   to   the   print   and   electronic   media <\/p>\n
regarding   withdrawal   of   support   to   the   BJP <\/p>\n
Government   led   by   Shri   Yeddyurappa   and   the   further <\/p>\n
fact   that   the   Appellants   are   said   to   have <\/p>\n
negotiated   with   Shri   H.D.   Kumaraswamy,   the   leader <\/p>\n
of the State Janata Dal, and its members, regarding <\/p>\n
the   formation   of   an   alternative   Government   was <\/p>\n
                                                                90<\/span><\/p>\n
sufficient   to   attract   the   provisions   of   Paragraph <\/p>\n
2(1)(a)   of   the   Tenth   Schedule   to   the   Constitution.\n<\/p>\n
It   was   held   by   the   Speaker   that   in   the   absence   of <\/p>\n
any   denial   to   the   allegations   made   by   Shri   K.S.\n<\/p>\n
Eswarappa, the State President of the BJP, the same <\/p>\n
had   to   be   accepted   as   having   been   proved   against <\/p>\n
the Appellants.\n<\/p>\n
72.    In   this   regard,   the   Speaker   referred   to   the <\/p>\n
views expressed by the Constitution Bench in Kihoto <\/p>\n
Hollohan’s case (supra), wherein, one of the issues <\/p>\n
which had been raised and decided was that the act <\/p>\n
of   voluntarily   giving   up   membership   of   a   political <\/p>\n
party   may   be   either   express   or   implied.     Even <\/p>\n
greater   emphasis   was   laid   on   the   decision   in  Ravi <\/p>\n
S.   Naik’s   case   (supra),   wherein,   it   was   observed <\/p>\n
that   there   was   no   provision   in   the   Tenth   Schedule <\/p>\n
which   indicated   that   till   a   petition,   signed   and <\/p>\n
verified   in   the   manner   laid   down   in   the   Civil <\/p>\n
Procedure   Code   for   verification   of   pleadings,   was <\/p>\n
                                                                              91<\/span><\/p>\n
made   to   the   Chairman   or   Speaker   of   the   House,   he <\/p>\n
did   not   get   jurisdiction   to   give   a   decision   as   to <\/p>\n
whether a Member of the House had become subject to <\/p>\n
disqualification   under   Paragraph   2(1)(a)   of   the <\/p>\n
Tenth Schedule or not.\n<\/p>\n
73.     The aforesaid view taken by the Speaker has to <\/p>\n
be   tested   in   relation   to   the   action   of   the <\/p>\n
concerned   Members   of   the   House   and   it   has   to   be <\/p>\n
seen   whether   on   account   of   such   action   a <\/p>\n
presumption   could   have   been   drawn   that   they   had <\/p>\n
voluntarily   given   up   their   membership   of   the   BJP, <\/p>\n
thereby   attracting   the   provisions   of   Paragraph <\/p>\n
2(1)(a) of the Tenth Schedule.\n<\/p>\n
74.     In   the   instant   case,   the   Appellants   had   in <\/p>\n
writing  informed  the  Governor  on  6th  October,  2010, <\/p>\n
that         having         become         disillusioned         with         the <\/p>\n
functioning   of   the   Government   headed   by   Shri   B.S.\n<\/p>\n
Yeddyurappa, they had chosen to withdraw support to <\/p>\n
the   Government   headed   by   Shri   B.S.   Yeddyurappa   and <\/p>\n
                                                                     92<\/span><\/p>\n
had   requested   the   Speaker   to   intervene   and <\/p>\n
institute         the         constitutional         process         as <\/p>\n
constitutional   head   of   the   State.     The   said   stand <\/p>\n
was   re-emphasized   in   their   replies   to   the   Show-\n<\/p>\n
Cause   notices   submitted   by   the   Appellants   on   9th <\/p>\n
October, 2010, wherein they had, inter alia, denied <\/p>\n
that   their   conduct   had   attracted   the   vice   of <\/p>\n
“defection”   within   the   scope   of   Paragraph   2(1)(a) <\/p>\n
of   the   Tenth   Schedule.   In   their   said   replies   they <\/p>\n
had   categorically   indicated   that   nowhere   in   the <\/p>\n
letter of 6th October, 2010, had they indicated that <\/p>\n
they   would   not   continue   as   Members   of   the <\/p>\n
Legislature   Party   of   the   BJP.     On   the   other   hand, <\/p>\n
they   had   reiterated   that   they   would   continue   to <\/p>\n
support   the   BJP   and   any   Government   formed   by   the <\/p>\n
BJP   headed   by   any   leader,   other   than   Shri   B.S.\n<\/p>\n
Yeddyurappa,  as  Chief  Minister  of  the  State.    They <\/p>\n
also reiterated that they would continue to support <\/p>\n
any   Government   headed   by   a   clean   and   efficient <\/p>\n
person   who   could   provide   good   governance   to   the <\/p>\n
                                                                             93<\/span><\/p>\n
people   of   Karnataka   according   to   the   Constitution <\/p>\n
of India and that it was only to save the party and <\/p>\n
Government and to ensure that the State was rid of <\/p>\n
a  corrupt  Chief  Minister,  that  the  letter  had  been <\/p>\n
submitted to the Governor on 6th October, 2010.\n<\/p>\n
75.    At   this   point   let   us   consider   the   contents   of <\/p>\n
the   letter   dated   6th  October,   2010,   written   by   the <\/p>\n
Appellants   to   the   Governor,   which   has   been <\/p>\n
reproduced   hereinbefore.                 The   letter   clearly <\/p>\n
indicates   that   the   author   thereof   who   had   been <\/p>\n
elected   as   a   MLA   on   a   Bharatiya   Janata   Party <\/p>\n
ticket,   having   become   disillusioned   with   the <\/p>\n
functioning   of   the   Government   headed   by   Shri   B.S.\n<\/p>\n
Yeddyurappa   on   account   of   widespread   corruption, <\/p>\n
nepotism, favouritism, abuse of power and misuse of <\/p>\n
Government          machinery,         was         convinced         that         a <\/p>\n
situation had arisen in which the governance of the <\/p>\n
State   could   not   be   carried   on   in   accordance   with <\/p>\n
the   provisions   of   the   Constitution   and   that   Shri <\/p>\n
                                                                                              94<\/span><\/p>\n
Yeddyurappa   had   forfeited   the   confidence   of   the <\/p>\n
people.     The   letter   further   indicates   that   it   was <\/p>\n
in   the   interest   of   the   State   and   the   people   of <\/p>\n
Karnataka   that   the   author   was   expressing   his   lack <\/p>\n
of   confidence   in   the   Government   headed   by   Shri <\/p>\n
Yeddyurappa            and         that             he         was,         accordingly, <\/p>\n
withdrawing his support to the Government headed by <\/p>\n
Shri  Yeddyurappa  with  a  request  to  the  Governor  to <\/p>\n
intervene   and   institute   the   constitutional   process <\/p>\n
as constitutional head of the State.\n<\/p>\n
76.     Although,   Mr.   Sorabjee   was   at   pains   to   point <\/p>\n
out   that   the   language   used   in   the   letter   was <\/p>\n
similar to the language used in Article 356 of the <\/p>\n
Constitution,   which,   according   to   him,   was   an <\/p>\n
invitation   to   the   Governor   to   take   action   in <\/p>\n
accordance   with   the   said   Article,   the   same   is   not <\/p>\n
as  explicit  as  Mr.  Sorabjee  would  have  us  believe.\n<\/p>\n
The   “constitutional   process”,   as   hinted   at   in   the <\/p>\n
said         letter         did         not         necessarily                  mean         the <\/p>\n
                                                                                          95<\/span><\/p>\n
constitutional                   process               of         proclamation            of <\/p>\n
President’s   rule,   but   could   also   mean   the   process <\/p>\n
of         removal         of         the         Chief           Minister         through <\/p>\n
constitutional   means.                        On   account   thereof,   the <\/p>\n
Bharatiya Janata Party was not necessarily deprived <\/p>\n
of   a   further   opportunity   of   forming   a   Government <\/p>\n
after a change in the leadership of the legislature <\/p>\n
party.  In fact, the same is evident from the reply <\/p>\n
given   by   the   Appellants   on   9th  October,   2010,   in <\/p>\n
reply  to  the  Show-Cause  notices  issued  to  them,  in <\/p>\n
which   they   had   re-emphasized   their   position   that <\/p>\n
they   not   only   continued   to   be   members   of   the <\/p>\n
Bharatiya   Janata   Party,   but   would   also   support   any <\/p>\n
Government   formed   by   the   Bharatiya   Janata   Party <\/p>\n
headed   by   any   leader,   other   than   Shri   B.S.\n<\/p>\n
Yeddyurappa,   as   the   Chief   Minister   of   the   State.\n<\/p>\n
The   conclusion   arrived   at   by   the   Speaker   does   not <\/p>\n
find   support   from   the   contents   of   the   said   letter <\/p>\n
of   6th  October,   2010,   so   as   to   empower   the   Speaker <\/p>\n
to   take   such   a   drastic   step   as   to   remove   the <\/p>\n
                                                             96<\/span><\/p>\n
Appellants from the membership of the House.\n<\/p>\n
77.    The   question   which   now   arises   is   whether   the <\/p>\n
Speaker was justified in concluding that by leaving <\/p>\n
Karnataka and going to Goa or to any other part of <\/p>\n
the   country   or   by   allegedly   making   statements <\/p>\n
regarding   the   withdrawal   of   support   to   the <\/p>\n
Government   led   by   Shri   Yeddyurappa   and   the <\/p>\n
formation   of   a   new   Government,   the   Appellants   had <\/p>\n
voluntarily given up their membership of the B.J.P.\n<\/p>\n
and   were   contemplating   the   formation   of   a <\/p>\n
Government   excluding   the   Bharatiya   Janata   Party.\n<\/p>\n
The   Speaker   has   proceeded   on   the   basis   that   the <\/p>\n
allegations   must   be   deemed   to   have   been   proved, <\/p>\n
even   in   the   absence   of   any   corroborative   evidence, <\/p>\n
simply because the same had not been denied by the <\/p>\n
Appellants.     The   Speaker   apparently   did   not   take <\/p>\n
into   consideration   the   rule   of   evidence   that   a <\/p>\n
person   making   an   allegation   has   to   prove   the   same <\/p>\n
with supporting evidence and the mere fact that the <\/p>\n
                                                                                               97<\/span><\/p>\n
allegation   was   not   denied,   did   not   amount   to   the <\/p>\n
same   having   been   proved   on   account   of   the   silence <\/p>\n
of   the   person   against   whom   such   allegations   are <\/p>\n
made.   Except for the affidavit filed by Shri K.S.\n<\/p>\n
Eswarappa,   State   President   of   the   B.J.P.,   and   the <\/p>\n
statements   of   two   of   the   thirteen   MLAs,   who   had <\/p>\n
been   joined   in   the   Disqualification   Application, <\/p>\n
there   is   nothing   on   record   in   support   of   the <\/p>\n
allegations            which         had                  been         made         therein.\n<\/p>\n
Significantly,   the   said   affidavits   had   not   been <\/p>\n
served   on   the   Appellants.                                Since   Shri   K.S.\n<\/p>\n
Eswarappa   was   not   a   party   to   the   proceedings,   the <\/p>\n
Speaker should have caused service of copies of the <\/p>\n
same   on   the   Appellants   to   enable   them   to   meet   the <\/p>\n
allegations made therein. In our view, not only did <\/p>\n
the   Speaker’s   action   amount   to   denial   of   the <\/p>\n
principles   of   natural   justice   to   the   Appellants, <\/p>\n
but   it   also   reveals   a   partisan   trait   in   the <\/p>\n
Speaker’s         approach                in               disposing                of         the <\/p>\n
Disqualification   Application   filed   by   Shri   B.S.\n<\/p>\n
                                                              98<\/span><\/p>\n
Yeddyurappa.   If the Speaker wished to rely on the <\/p>\n
statements   of   a   third   party   which   were   adverse   to <\/p>\n
the Appellants’ interests, it was obligatory on his <\/p>\n
part to have given the Appellants an opportunity of <\/p>\n
questioning  the  deponent  as  to  the  veracity  of  the <\/p>\n
statements  made  in  the  affidavit.    This  conduct  on <\/p>\n
the   part   of   the   Speaker   is   also   indicative   of   the <\/p>\n
“hot  haste”  with  which  the  Speaker  disposed  of  the <\/p>\n
Disqualification   Petition   as   complained   of   by   the <\/p>\n
Appellants.  The question does, therefore, arise as <\/p>\n
to   why   the   Speaker   did   not   send   copies   of   the <\/p>\n
affidavit   affirmed   and   filed   by   Shri   Eswarappa   as <\/p>\n
also   the   affidavits   of   the   two   MLAs,   who   had <\/p>\n
originally   withdrawn   support   to   the   Government   led <\/p>\n
by   Shri   Yeddyurappa,   but   were   later   allowed   to <\/p>\n
retract   their   statements,   to   the   Appellants.   Given <\/p>\n
an   opportunity   to   deal   with   the   said   affidavits, <\/p>\n
the Appellants could have raised the question as to <\/p>\n
why   the   said   two   MLAs,   Shri   M.P.   Renukacharya   and <\/p>\n
Shri   Narasimha   Nayak,   were   treated   differently   on <\/p>\n
                                                                                           99<\/span><\/p>\n
account   of   their   having     withdrawn   the   letters <\/p>\n
which they had addressed to the Governor, while, on <\/p>\n
the   other   hand,   disqualifying   the   Appellants   who <\/p>\n
had written identical letters to the Governor, upon <\/p>\n
holding   that   they   had   ceased   to   be   members   of   the <\/p>\n
Bharatiya   Janata   Party,   notwithstanding   the   Show-\n<\/p>\n
Cause notices issued to them. The explanation given <\/p>\n
as to why notices to show cause had been issued to <\/p>\n
the Appellants under Rule 7 of the Disqualification <\/p>\n
Rules,   giving   the   Appellants   only   three   days’   time <\/p>\n
to respond to the same, despite the stipulated time <\/p>\n
of   seven   days   or   more   indicated   in   Rule   7(3) <\/p>\n
itself,   is   not   very   convincing.     There   was   no <\/p>\n
compulsion         on         the         Speaker         to         decide               the <\/p>\n
Disqualification                   Application            filed           by              Shri <\/p>\n
Yeddyurappa   in   such   a   great   hurry   within   the   time <\/p>\n
specified by the Governor to the Speaker to conduct <\/p>\n
a   Vote   of   Confidence   in   the   Government   headed   by <\/p>\n
Shri   Yeddyurappa.     It   would   appear   that   such   a <\/p>\n
course of action was adopted by the Speaker on 10th <\/p>\n
                                                              100<\/span><\/p>\n
October,  2010,  since  the  Vote  of  Confidence  on  the <\/p>\n
Floor   of   the   House   was   slated   for   12th  October, <\/p>\n
2010.   The element of hot haste is also evident in <\/p>\n
the action of the Speaker in this regard as well.\n<\/p>\n
78.    In   arriving   at   the   conclusion   that   by   such <\/p>\n
short   notice,   no   prejudice   has   been   caused   to   the <\/p>\n
Appellants,   since   they   had   filed   their   detailed <\/p>\n
replies   to   the   Show-Cause   notices,   the   Speaker   had <\/p>\n
relied on the two decisions of this Court, referred <\/p>\n
to   hereinbefore   in  Dr.   Mahachandra   Prasad   Singh’s <\/p>\n
case   and  Ravi   S.   Naik’s   case,   wherein   it   had   been <\/p>\n
held   that   the   1986   Rules   were   directory   and   not <\/p>\n
mandatory   in   nature,   and,   as   a   result,   the   order <\/p>\n
dated   10th  October,   2010,   could   not   be   set   aside <\/p>\n
only  on  the  ground  of  departure  therefrom.  Even  if <\/p>\n
less than seven days’ time is given to reply to the <\/p>\n
Show-Cause   notice,   the   legislator   must   not   be <\/p>\n
prejudiced   or   precluded   from   giving   an   effective <\/p>\n
reply to such notice.\n<\/p>\n
                                                                                              101<\/span><\/p>\n
79.    One   of   the   questions   which   was   raised   and <\/p>\n
answered in Dr. Mahachandra Prasad Singh’s case was <\/p>\n
the   nature   and   effect   of   non-compliance   with   the <\/p>\n
provisions of Rules 6 and 7 of the Disqualification <\/p>\n
Rules,   1994.     It   was   held   therein   by   a   Bench   of <\/p>\n
Three Judges of this Court that the said provisions <\/p>\n
were   directory   and   not   mandatory   and   the   omission <\/p>\n
to   file   an   affidavit   neither   rendered   the   petition <\/p>\n
invalid   nor   did   it   affect   the   assumption   of <\/p>\n
jurisdiction               by               the         Chairman           to         initiate <\/p>\n
proceedings               to               determine           the         question           of <\/p>\n
disqualification of a Member of the House.   In the <\/p>\n
facts   of   the   said   case   it   was   held   that   the   1994 <\/p>\n
Rules   being   subordinate   legislation,   they   were <\/p>\n
directory   and   not   mandatory   as   they   could   not <\/p>\n
curtail   the   content   and   scope   of   the   substantive <\/p>\n
provision under which they were made.  However, the <\/p>\n
facts   of   this   case   differ   significantly   from   the <\/p>\n
facts in Mahachandra’s case (supra).\n<\/p>\n
                                                               102<\/span><\/p>\n
80.    In  Mahachandra’s   case,   a   member   of   the   Indian <\/p>\n
National Congress, who had been elected as a Member <\/p>\n
of   the   Legislative   Council   on   the   ticket   of   the <\/p>\n
Indian National Congress, contested a Parliamentary <\/p>\n
election   as   an   independent   candidate,   which   facts <\/p>\n
were   part   of   official   records   and   not   merely <\/p>\n
hearsay, as in the present case.   In the aforesaid <\/p>\n
circumstances, the Chairman held that by contesting <\/p>\n
as   an   Independent   Candidate,   the   said   Member   had <\/p>\n
given   up   his   membership   of   the   Indian   National <\/p>\n
Congress.     It   is   in   that   context   that   it   was   held <\/p>\n
that   since   the   Member   had   not   disputed   the <\/p>\n
allegations, but had, in fact, admitted the same in <\/p>\n
his   writ   petition,   he   had   not   suffered   any <\/p>\n
prejudice in not being provided with a copy of the <\/p>\n
letter   from   the   leader   of   the   Indian   National <\/p>\n
Congress   on   which   reliance   had   been   placed   by   the <\/p>\n
Chairman.     The   distinguishing   feature   of   the   facts <\/p>\n
of Mahachandra Prasad Singh’s case and this case is <\/p>\n
                                                                       103<\/span><\/p>\n
that the facts in the former case were admitted and <\/p>\n
were   part   of   the   official   records,   while   in   this <\/p>\n
case the allegations are highly disputed and are in <\/p>\n
the   realms   of   allegation   which   were   yet   to   be <\/p>\n
proved         with         corroborating         evidence,         though <\/p>\n
according to the Speaker, such allegations were not <\/p>\n
disputed.\n<\/p>\n
81.      As far as the decision in  Ravi S. Naik’s case <\/p>\n
(supra)   is   concerned,   the   facts   of   the   said   case <\/p>\n
are somewhat different from the facts of this case.\n<\/p>\n
What   is   commonly   known   and   referred   to   as  Ravi   S.\n<\/p>\n
Naik’s   case   is,   in   fact,   a   decision   in   respect   of <\/p>\n
the two Civil Appeals, namely, Civil Appeal No.2904 <\/p>\n
of   1993   filed   by   Ravi   S.   Naik   and   Civil   Appeal <\/p>\n
No.3309   of   1993   filed   by   Shri   Sanjay   Bandekar   and <\/p>\n
Shri Ratnakar Chopdekar.  There is a certain degree <\/p>\n
of   similarity   between   the   facts   of   the   latter <\/p>\n
appeal   and   this   case.     At   the   relevant   time,   the <\/p>\n
Congress   (I)   initially   formed   the   Government   with <\/p>\n
                                                                            104<\/span><\/p>\n
the         support         of         one         independent          member.\n<\/p>\n
Subsequently,   seven   members   of   the   Congress   (I) <\/p>\n
left   the   party   and   formed   the   Goan   People’s   Party <\/p>\n
and   formed   a   coalition   government   with   the <\/p>\n
Maharashtrawadi   Gomantak   Party   under   the   banner   of <\/p>\n
Progressive   Democratic   Front   (PDF).                           The   said <\/p>\n
government   was   also   short-lived   and   ultimately <\/p>\n
President’s   Rule   was   imposed   in   the   State   and   the <\/p>\n
Legislative Assembly was suspended on 14th December, <\/p>\n
1990.     Prior   to   proclamation   of   President’s   Rule, <\/p>\n
Shri   Ramakant   Khalap,   who   was   the   leader   of   the <\/p>\n
Progressive   Democratic   Front,   staked   his   claim   to <\/p>\n
form  a  Government,  but  no  further  action  was  taken <\/p>\n
on   such   claim   since   the   Assembly   was   suspended   on <\/p>\n
14th  December,  1990.    However,  Shri  Ramakant  Khalap <\/p>\n
filed   a   petition   before   the   Speaker   under   Article <\/p>\n
191(2)   read   with   paragraphs   2(1)(a)   and   2(1)(b)   of <\/p>\n
the   Tenth   Schedule   to   the   Constitution   for <\/p>\n
disqualification of two Members, who had joined the <\/p>\n
Congress   Democratic   Front   inspite   of   being   Members <\/p>\n
                                                             105<\/span><\/p>\n
of   the   Maharashtrawadi   Gomantak   Party.     By   his <\/p>\n
order   dated   13th     December,   1990,   the   Speaker <\/p>\n
disqualified the said two Members from the House on <\/p>\n
the ground of defection.\n<\/p>\n
82.    On   25th  January,   1991,   President’s   Rule   was <\/p>\n
revoked and Shri Ravi S. Naik was sworn in as Chief <\/p>\n
Minister of Goa. On the same day, one Dr. Kashinath <\/p>\n
G.   Jhalmi,   belonging   to   the   Maharashtrawadi <\/p>\n
Gomantak Party, filed a petition before the Speaker <\/p>\n
for   Shri   Naik’s   disqualification   on   the   ground   of <\/p>\n
defection.   Simultaneously   with   the   above,   the <\/p>\n
Speaker,   Shri   Sirsat,   was   removed   from   the   Office <\/p>\n
and was replaced by the Deputy Speaker who began to <\/p>\n
function as Speaker in his place. Shri Bandekar and <\/p>\n
Shri   Chopdekar   filed   an   application   before   the <\/p>\n
Deputy   Speaker   for   review   of   the   order   dated   13th <\/p>\n
December, 1990, by which they had been disqualified <\/p>\n
from   the   membership   of   the   House.     The   same   was <\/p>\n
allowed by the Deputy Speaker by his order dated 7th <\/p>\n
                                                               106<\/span><\/p>\n
March,   1991,   and   the   earlier   order   dated   13th <\/p>\n
December,   1990,   was   set   aside.     Similarly,   Shri <\/p>\n
Ravi   Naik   also   filed   an   application   for   review   of <\/p>\n
the   order   dated   15th     February,   1991,   which   was <\/p>\n
allowed   by   the   Deputy   Speaker   by   his   order   of   8th <\/p>\n
March,   1991.     The   said   two   orders   passed   by   the <\/p>\n
Deputy   Speaker   were   challenged   by   way   of   Writ <\/p>\n
Petitions   which   were   allowed   and   the   orders   passed <\/p>\n
by   the   Deputy   Speaker   on   7th  and   8th  March,   1991, <\/p>\n
were   held   to   be   void.     Consequently,   the   Writ <\/p>\n
Petitions filed by Shri Bandekar and Shri Chopdekar <\/p>\n
and   by   Shri   Ravi   S.   Naik   stood   revived   with   a <\/p>\n
direction for disposal of the same on merits.   The <\/p>\n
Writ   Petitions   were   ultimately   dismissed   against <\/p>\n
which two appeals were filed.\n<\/p>\n
83.    It was in the appeal filed by Shri Bandekar and <\/p>\n
Shri   Chopdekar   that   the   issue   of   voluntary <\/p>\n
resignation   from   membership   of   the   Maharashtrawadi <\/p>\n
Gomantak   Party   fell   for   consideration   of   the   High <\/p>\n
                                                              107<\/span><\/p>\n
Court,   while   in  Ravi   S.   Naik’s   case   the   question <\/p>\n
was   whether   a   valid   split   of   the   aforesaid   party <\/p>\n
had   been   effected   with   Shri   Naik   forming   a   new <\/p>\n
party   with   seven   other   Members   of   the   said   party.\n<\/p>\n
The  said  question  was  answered  in  Shri  Ravi  Naik’s <\/p>\n
favour and his appeal was allowed and the order of <\/p>\n
his   disqualification   from   the   House   was   set   aside.\n<\/p>\n
The   other   appeal   filed   by   Shri   Bandekar   and   Shri <\/p>\n
Chopdekar   was   dismissed   and   their   disqualification <\/p>\n
by the Speaker was upheld. In other words, the High <\/p>\n
Court   approved   the   proposition   that   it   was   not <\/p>\n
necessary   for   a   Member   of   the   House   to   formally <\/p>\n
tender  his  resignation  from  the  party  but  that  the <\/p>\n
same   should   be   inferred   from   his   conduct.     It   was <\/p>\n
held  that  a  person  may  voluntarily  give  up  his\/her <\/p>\n
membership of a political party, even though he\/she <\/p>\n
had   not   tendered   his\/her   resignation   from   the <\/p>\n
membership   of   that   party.     However,   the   Division <\/p>\n
Bench   of   the   High   Court   approved   the   said <\/p>\n
proposition   in   the   facts   and   circumstances   of   that <\/p>\n
                                                              108<\/span><\/p>\n
case,   where,   after   the   Government   was   initially <\/p>\n
formed,   there   was   an   exodus   from   the   principal <\/p>\n
party   resulting   in   the   formation   of   a   new   party <\/p>\n
which   stood   protected   under   paragraph   4   of   the <\/p>\n
Tenth   Schedule   to   the   Constitution.   Of   course,   it <\/p>\n
will   also   have   to   be   noted   that   Shri   Bandekar   and <\/p>\n
Shri Chopdekar had not only accompanied Dr. Barbosa <\/p>\n
to  the  Governor  and  had  informed  the  Governor  that <\/p>\n
it   did   not   support   the   Maharashtrawadi   Gomantak <\/p>\n
Party any further, but they had also made it known <\/p>\n
to   the   public   that   they   had   voluntarily   resigned <\/p>\n
from   the   membership   of   the   said   party.     It   is   in <\/p>\n
these   facts   that   a   presumption   was   drawn   from   the <\/p>\n
conduct   of   the   Members   that   they   had   voluntarily <\/p>\n
resigned from the membership of the Maharashtrawadi <\/p>\n
Gomantak Party.  In the said case also, after Show-\n<\/p>\n
Cause notices were issued, both persons filed their <\/p>\n
replies   stating   that   they   had   not   given   up   the <\/p>\n
membership   of   the   Maharashtrawadi   Gomantak   Party <\/p>\n
voluntarily   or   would   otherwise   continue   to   be   a <\/p>\n
                                                                             109<\/span><\/p>\n
Member   of   the   said   party   and   no   document   had   been <\/p>\n
produced   by   the   complainant   nor   has   anything <\/p>\n
disclosed   to   show   that   they   had   resigned   from   the <\/p>\n
membership of the party.     It was also denied that <\/p>\n
they   had   informed   the   Governor   that   they   did   not <\/p>\n
support   the   Maharashtrawadi   Gomantak   Party   or   that <\/p>\n
they had informed anybody that they had voluntarily <\/p>\n
resigned   from   the   membership   of   said   party.     The <\/p>\n
Speaker, however, rejected the explanation given by <\/p>\n
Shri   Bandekar   and   Shri   Chopdekar   and   recorded   that <\/p>\n
he was satisfied that by their conduct, actions and <\/p>\n
speech,   they   had   voluntarily   given   up   the <\/p>\n
membership of the Maharashtrawadi Gomantak Party.\n<\/p>\n
84.    This   brings   us   to   the   next   question   regarding <\/p>\n
the         manner         in         which         the         Disqualification <\/p>\n
Application   filed   by   Shri   B.S.   Yeddyurappa   was <\/p>\n
proceeded with and disposed of by the Speaker.   On <\/p>\n
6th  October,   2010,   on   receipt   of   identical   letters <\/p>\n
from   the   13   BJP   MLAs   and   the   5   independent   MLAs <\/p>\n
                                                              110<\/span><\/p>\n
withdrawing   support   to   the   BJP   Government   led   by <\/p>\n
Shri   B.S.   Yeddyurappa,   the   Governor   on   the   very <\/p>\n
same   day,   wrote   a   letter   to   the   Chief   Minister, <\/p>\n
informing   him   of   the   developments   regarding   the <\/p>\n
withdrawal   of   support   by   13   BJP   MLAs   and   5 <\/p>\n
independent   MLAs   and   requesting   him   to   prove   his <\/p>\n
majority in the Assembly on or before 12th  October, <\/p>\n
2010   by   5.00   p.m.     The   Speaker   was   also   requested <\/p>\n
accordingly.         On   the   very   same   day,   Shri <\/p>\n
Yeddyurappa,   as   the   leader   of   the   Bharatiya   Janata <\/p>\n
Legislative   Party   in   the   Legislative   Assembly, <\/p>\n
filed   an   application   before   the   Speaker   under   Rule <\/p>\n
6   of   the   Disqualification   Rules,   1986,   being <\/p>\n
Disqualification   Application   No.1   of   2010,   for   a <\/p>\n
declaration   that   all   the   thirteen   MLAs   elected   on <\/p>\n
BJP  tickets  along  with  two  other  MLAs  had  incurred <\/p>\n
disqualification   in   view   of   the   Tenth   Schedule   to <\/p>\n
the   Constitution.     Immediately   thereafter,   on   7th <\/p>\n
October,   2010,   the   Speaker   issued   Show-Cause <\/p>\n
notices to the aforesaid MLAs informing them of the <\/p>\n
                                                               111<\/span><\/p>\n
Disqualification   Application   filed   by   Shri   B.S.\n<\/p>\n
Yeddyurappa   and   informing   them   that   by   submitting <\/p>\n
letters   to   the   Governor   withdrawing   support   to   the <\/p>\n
Government   led   by   Shri   Yeddyurappa,   they   had <\/p>\n
violated paragraph 2(1)(a) of the Tenth Schedule to <\/p>\n
the   Constitution   and   were,   therefore,   disqualified <\/p>\n
from   continuing   as   Members   of   the   House.     The <\/p>\n
Appellants   were   given   time   till   5.00   p.m.   on   10th <\/p>\n
October,   2010,   to   submit   their   objection,   if   any, <\/p>\n
to   the   said   application.     Even   if   as   held   by   this <\/p>\n
Court   in  Mahachandra   Prasad   Singh’s   case   (supra), <\/p>\n
Rules   6   and   7   of   the   Disqualification   Rules   are <\/p>\n
taken   as   directory   and   not   mandatory,   the <\/p>\n
Appellants were still required to be given a proper <\/p>\n
opportunity of meeting the allegations mentioned in <\/p>\n
the   Show-Cause   notices.            The   fact   that   the <\/p>\n
Appellants   had   not   been   served   with   notices <\/p>\n
directly,   but   that   the   same   were   pasted   on   the <\/p>\n
outer   doors   of   their   quarters   in   the   MLA   complex <\/p>\n
and   that   too   without   copies   of   the   various <\/p>\n
                                                             112<\/span><\/p>\n
documents   relied   upon   by   Shri   Yeddyurappa,   giving <\/p>\n
them three days’ time to reply to the said notices <\/p>\n
justifies   the   Appellants’   contention   that   they   had <\/p>\n
not been given sufficient time to give an effective <\/p>\n
reply   to   the   Show-Cause   notices.     Furthermore,   the <\/p>\n
Appellants   were   not   served   with   copies   of   the <\/p>\n
affidavit   filed   by   Shri   K.S.   Eswarappa,   although, <\/p>\n
the   Speaker   relied   heavily   on   the   contents   thereof <\/p>\n
in   arriving   at   the   conclusion   that   the   Appellants <\/p>\n
stood   disqualified   under   paragraph   2(1)(a)   of   the <\/p>\n
Tenth Schedule to the Constitution.\n<\/p>\n
85.    Likewise, the Appellants were also not supplied <\/p>\n
with   the   copies   of   the   affidavits   filed   by   Shri <\/p>\n
M.P. Renukacharya and Shri Narasimha Nayak, whereby <\/p>\n
they   retracted   the   statements   which   they   had   made <\/p>\n
in   their   letters   submitted   to   the   Governor   on   6th <\/p>\n
October,   2010.     The   Speaker   not   only   relied   upon <\/p>\n
the   contents   of   the   said   affidavits,   but   also <\/p>\n
dismissed   the   Disqualification   Application   against <\/p>\n
                                                              113<\/span><\/p>\n
them  on  the  basis  of  such  retraction,  after  having <\/p>\n
held   in   the   case   of   the   Appellants   that   the <\/p>\n
provisions   of   paragraph   2(1)(a)   of   the   Tenth <\/p>\n
Schedule   to   the   Constitution   were   attracted <\/p>\n
immediately   upon   their   intention   to   withdraw   their <\/p>\n
support   to   the   Government   led   by   Shri   Yeddyurappa.\n<\/p>\n
The  Speaker  ignored  the  claim  of  the  Appellants  to <\/p>\n
be   given   reasonable   time   to   respond   to   the   Show-\n<\/p>\n
Cause  notices  and  also  to  the  documents  which  were <\/p>\n
handed   over   to   the   learned   Advocates   of   the <\/p>\n
Appellants   at   the   time   of   hearing   of   the <\/p>\n
Disqualification   Application.              Incidentally,   a <\/p>\n
further incidence of partisan behaviour on the part <\/p>\n
of   the   Speaker   will   be   evident   from   the   fact   that <\/p>\n
not  only  were  the  Appellants  not  given  an  adequate <\/p>\n
opportunity   to   deal   with   the   contents   of   the <\/p>\n
affidavits   affirmed   by   Shri   K.S.   Eswarappa,   Shri <\/p>\n
M.P. Renukacharya and Shri Narasimha Nayak, but the <\/p>\n
time given to submit the Show-Cause on 10th October, <\/p>\n
2010,   was   preponed   from   5.00   p.m.   to   3.00   p.m., <\/p>\n
                                                             114<\/span><\/p>\n
making it even more difficult for the Appellants to <\/p>\n
respond   to   the   Show-Cause   notices   in   a   meaningful <\/p>\n
manner.    The  explanation  given  by  the  Speaker  that <\/p>\n
the   Appellants   had   filed   detailed   replies   to   the <\/p>\n
Show-Cause notices does not stand up to the test of <\/p>\n
fairness when one takes into consideration the fact <\/p>\n
that various allegations had been made in the three <\/p>\n
affidavits   filed   by   Shri   K.S.   Eswarappa,   Shri   M.P.\n<\/p>\n
Renukacharya   and   Shri   Narasimha   Nayak,   which   could <\/p>\n
only   be   answered   by   the   Appellants   themselves   and <\/p>\n
not by their learned Advocates.\n<\/p>\n
86.      The procedure adopted by the Speaker seems to <\/p>\n
indicate   that   he   was   trying   to   meet   the   time <\/p>\n
schedule   set   by   the   Governor   for   the   trial   of <\/p>\n
strength   in   the   Assembly   and   to   ensure   that   the <\/p>\n
Appellants   and   the   other   independent   MLAs   stood <\/p>\n
disqualified   prior   to   the   date   on   which   the   Floor <\/p>\n
Test was to be held.   Having concluded the hearing <\/p>\n
on   10th  October,   2010,   by   5.00   p.m.,   the   Speaker <\/p>\n
                                                                              115<\/span><\/p>\n
passed a detailed order in which various judgments, <\/p>\n
both   of   Indian   Courts   and   foreign   Courts,   and <\/p>\n
principles   of   law   from   various   authorities   were <\/p>\n
referred   to,   on   the   same   day,   holding   that   the <\/p>\n
Appellants         had         voluntarily         given         up         their <\/p>\n
membership   of   the   Bharatiya   Janata   Party   by   their <\/p>\n
acts   and   conduct   which   attracted   the   provisions   of <\/p>\n
paragraph   2(1)(a)   of   the   Tenth   Schedule   to   the <\/p>\n
Constitution,   whereunder   they   stood   disqualified.\n<\/p>\n
The   Vote   of   Confidence   took   place   on   11th  October, <\/p>\n
2010,   in   which   the   disqualified   members   could   not <\/p>\n
participate   and,   in   their   absence   Shri   B.S.\n<\/p>\n
Yeddyurappa   was   able   to   prove   his   majority   in   the <\/p>\n
House.\n<\/p>\n
87.    Unless it was to ensure that the Trust Vote did <\/p>\n
not   go   against   the   Chief   Minister,   there   was   no <\/p>\n
conceivable reason for the Speaker to have taken up <\/p>\n
the   Disqualification   Application   in   such   a   great <\/p>\n
hurry.     Although,   in  Mahachandra   Prasad   Singh’s <\/p>\n
                                                                             116<\/span><\/p>\n
case   (supra)   and   in  Ravi   S.   Naik’s   case   (supra), <\/p>\n
this Court had held that the Disqualification Rules <\/p>\n
were   only   directory   and   not   mandatory   and   that <\/p>\n
violation   thereof   amounted   to   only   procedural <\/p>\n
irregularities             and          not          violation         of         a <\/p>\n
constitutional   mandate,   it   was   also   observed   in <\/p>\n
Ravi   S.   Naik’s   case   (supra)   that   such   an <\/p>\n
irregularity  should  not  be  such  so  as  to  prejudice <\/p>\n
any   authority   who   is   affected   aversely   by   such <\/p>\n
breach.     In   the   instant   case,   it   was   a   matter   of <\/p>\n
survival   as   far   as   the   Appellants   were   concerned.\n<\/p>\n
In   such   circumstances,   they   deserved   a   better <\/p>\n
opportunity of meeting the allegations made against <\/p>\n
them,   particularly   when   except   for   the   newspaper <\/p>\n
cuttings   said   to   have   been   filed   by   Shri <\/p>\n
Yeddyurappa          along         with         the         Disqualification <\/p>\n
Application,   there   was   no   other   evidence   at   all <\/p>\n
available against the Appellants.\n<\/p>\n
88.    We   are   quite   alive   to   the   decision   in  Jagjit <\/p>\n
Singh’s   case   (supra),   where   it   was   held   that <\/p>\n
                                                                             117<\/span><\/p>\n
failure   to   provide   documents   relied   upon   by   the <\/p>\n
Speaker   to   the   concerned   Member,   whose   membership <\/p>\n
of   the   House   was   in   question,   and   denying   him   the <\/p>\n
right   of   cross-examination,   did   not   amount   to <\/p>\n
denial   of   natural   justice   and   did   not   vitiate   the <\/p>\n
proceedings.     However,   a   rider   was   added   to   the <\/p>\n
said   observation   to   the   effect   that   the   Speaker’s <\/p>\n
decision   in   such   a   situation   would   have   to   be <\/p>\n
examined   on   a   case-to-case   basis.                    In        Jagjit <\/p>\n
Singh’s   case   (supra),   video   recordings   of   TV <\/p>\n
interviews,   participation   in   the   meeting   of   the <\/p>\n
Congress   Legislative   Party   in   the   premises   of   the <\/p>\n
Assembly, the signatures on the register maintained <\/p>\n
by   the   Congress   Legislative   Party,   were   produced <\/p>\n
before   the   Speaker,   who   decided   the   matter   on   the <\/p>\n
basis   thereof.       That   is   not   so   in   the   present <\/p>\n
case.         As         mentioned           hereinbefore,                  the <\/p>\n
Disqualification              Application         filed         by          Shri <\/p>\n
Yeddyurappa   contained   only   bald   allegations,   which <\/p>\n
were  not  corroborated  by  any  direct  evidence.    The <\/p>\n
                                                                  118<\/span><\/p>\n
application   did   not   even   mention   the   provision <\/p>\n
under   which   the   same   had   been   made.       By   allowing <\/p>\n
Shri   K.S.   Eswarappa,   who   was   not   even   a   party   to <\/p>\n
the   proceedings,   and   Shri   M.P.   Renukacharya   and <\/p>\n
Shri   Narasimha   Nayak   to   file   their   respective <\/p>\n
affidavits,          the         short-comings         in         the <\/p>\n
Disqualification   Application   were   allowed   to   be <\/p>\n
made up.   The Speaker, however, relied on the same <\/p>\n
to   ultimately   declare   that   the   Appellants   stood <\/p>\n
disqualified   from   the   membership   of   the   House, <\/p>\n
without   even   serving   copies   of   the   same   on   the <\/p>\n
Appellants,   but   on   their   learned   Advocates,   just <\/p>\n
before   the   hearing   was   to   be   conducted.     If   one <\/p>\n
were to take a realistic view of the matter, it was <\/p>\n
next  to  impossible  to  deal  with  the  allegations  at <\/p>\n
such short notice.  In the circumstances, we cannot <\/p>\n
but hold that the conduct of the proceedings by the <\/p>\n
Speaker   and   the   decision   given   by   the   Speaker   on <\/p>\n
the  basis  thereof  did  not  meet  even  the  parameters <\/p>\n
laid down in Jagjit Singh’s case (supra).\n<\/p>\n
                                                                              119<\/span><\/p>\n
89.    We   cannot   also   lose   sight   of   the   fact   that <\/p>\n
although the same allegations, as were made against <\/p>\n
the   Appellants   by   Shri   Yeddyurappa,   were   also   made <\/p>\n
against   Shri   M.P.   Renukacharya   and   Shri   Narasimha <\/p>\n
Nayak,   their   retraction   was   accepted   by   the <\/p>\n
Speaker,   despite   the   view   expressed   by   him   that <\/p>\n
upon   submitting   the   letter   withdrawing   support   to <\/p>\n
the BJP Government led by Shri Yeddyurappa, all the <\/p>\n
MLAs stood immediately disqualified under paragraph <\/p>\n
2(1)(a)   of   the   Tenth   Schedule   to   the   Constitution, <\/p>\n
and         they         were,         accordingly,         permitted         to <\/p>\n
participate   in   the   Confidence   Vote   for   reasons <\/p>\n
which are not required to be spelt out.\n<\/p>\n
90.    On   the   question   of   justiceability   of   the <\/p>\n
Speaker’s   order   on   account   of   the   expression   of <\/p>\n
finality   in   paragraph   6   of   the   Tenth   Schedule   to <\/p>\n
the Constitution, it has now been well-settled that <\/p>\n
such   finality   did   not   include   the   powers   of   the <\/p>\n
superior   Courts   under   Articles   32,   226   and   136   of <\/p>\n
                                                                                     120<\/span><\/p>\n
the   Constitution   to   judicially   review   the   order   of <\/p>\n
the  Speaker.    Under  paragraph  2(1)(a)  of  the  Tenth <\/p>\n
Schedule, the Speaker functions in a quasi-judicial <\/p>\n
capacity,   which   makes   an   order   passed   by   him   in <\/p>\n
such   capacity,   subject   to   judicial   review.     The <\/p>\n
scope of paragraph 2(1)(a) of the Tenth Schedule to <\/p>\n
the Constitution, therefore, enables the Speaker in <\/p>\n
a   quasi-judicial   capacity   to   declare   that   a   Member <\/p>\n
of   the   House   stands   disqualified   for   the   reasons <\/p>\n
mentioned   in   paragraph   2(1)(a)   of   the   Tenth <\/p>\n
Schedule to the Constitution.\n<\/p>\n
91.    Having   considered   all   the   different   aspects   of <\/p>\n
the   matter   and   having   examined   the   various <\/p>\n
questions         which         have         been         raised,         we         are <\/p>\n
constrained   to   hold   that   the   proceedings   conducted <\/p>\n
by   the   Speaker   on   the   Disqualification   Application <\/p>\n
filed by Shri B.S. Yeddyurappa do not meet the twin <\/p>\n
tests   of   natural   justice   and   fair   play.                               The <\/p>\n
Speaker, in our view, proceeded in the matter as if <\/p>\n
                                                             121<\/span><\/p>\n
he   was   required   to   meet   the   deadline   set   by   the <\/p>\n
Governor,   irrespective   of   whether,   in   the   process, <\/p>\n
he was ignoring the constitutional norms set out in <\/p>\n
the   Tenth   Schedule   to   the   Constitution   and   the <\/p>\n
Disqualification   Rules,   1986,   and   in   contravention <\/p>\n
of   the   basic   principles   that   go   hand-in-hand   with <\/p>\n
the concept of a fair hearing.\n<\/p>\n
92.    As   we   have   earlier   indicated,   even   if   the <\/p>\n
Disqualification   Rules   were   only   directory   in <\/p>\n
nature,   even   then   sufficient   opportunity   should <\/p>\n
have   been   given   to   the   Appellants   to   meet   the <\/p>\n
allegations   levelled   against   them.     The   fact   that <\/p>\n
the   Show-Cause   notices   were   issued   within   the   time <\/p>\n
fixed   by   the   Governor   for   holding   the   Trust   Vote, <\/p>\n
may   explain   service   of   the   Show-Cause   notices   by <\/p>\n
affixation   at   the   official   residence   of   the <\/p>\n
Appellants,   though   without   the   documents   submitted <\/p>\n
by Shri Yeddyurappa along with his application, but <\/p>\n
it   is   hard   to   explain   as   to   how   the   affidavits, <\/p>\n
                                                                                          122<\/span><\/p>\n
affirmed   by   Shri   K.S.   Eswarappa,   Shri   M.P.\n<\/p>\n
Renukacharya   and   Shri   Narasimha   Nayak,   were   served <\/p>\n
on   the   learned   Advocates   appearing   for   the <\/p>\n
Appellants only on the date of hearing and that too <\/p>\n
just         before         the         hearing            was         to         commence.\n<\/p>\n
Extraneous   considerations   are   writ   large   on   the <\/p>\n
face   of   the   order   of   the   Speaker   and   the   same   has <\/p>\n
to be set aside.\n<\/p>\n
93.     Incidentally,   in   paragraph   5   of   the   Tenth <\/p>\n
Schedule,            which              was         introduced               into         the <\/p>\n
Constitution   by   the   Fifty-second   Amendment   Act, <\/p>\n
1985,  to  deal  with  the  immorality  of  defection  and <\/p>\n
Floor   crossing   during   the   tenure   of   a   legislator, <\/p>\n
it has been indicated that notwithstanding anything <\/p>\n
contained   in   the   said   Schedule,   a   person   who   has <\/p>\n
been   elected   to   the   office   of   the   Speaker   or   the <\/p>\n
Deputy   Speaker   of   the   House   of   the   People   or   the <\/p>\n
Deputy   Chairman   of   the   Council   of   States   or   the <\/p>\n
Chairman   or   the   Deputy   Chairman   of   the   Legislative <\/p>\n
                                                                                   123<\/span><\/p>\n
Council   of   the   State   or   the   Speaker   or   the   Deputy <\/p>\n
Speaker   of   the   Legislative   Assembly   of   a   State, <\/p>\n
shall  not  be  disqualified  under  the  Schedule  if  he <\/p>\n
by   reason   of   his   election   to   such   office, <\/p>\n
voluntarily   gives   up   the   membership   of   the <\/p>\n
political   party   to   which   he   belonged   immediately <\/p>\n
before   such   election,   and   does   not,   so   long   as   he <\/p>\n
continues   to   hold   such   office   thereafter,   rejoin <\/p>\n
that  political  party  or  become  a  member  of  another <\/p>\n
political   party.                    The   object   behind   the   said <\/p>\n
paragraph   is   to   ensure   that   the   Speaker,   while <\/p>\n
holding             office,         acts          absolutely           impartially, <\/p>\n
without   any   leaning   towards   any   party,   including <\/p>\n
the party from which he was elected to the House.\n<\/p>\n
94.         The Appeals are, therefore, allowed.  The order <\/p>\n
of          the          Speaker         dated         10th     October,         2010, <\/p>\n
disqualifying the Appellants from the membership of <\/p>\n
the   House   under   paragraph   2(1)(a)   of   the   Tenth <\/p>\n
Schedule   to   the   Constitution   is   set   aside   along <\/p>\n
                                                                   124<\/span><\/p>\n
with   the   majority   judgment   delivered   in   Writ <\/p>\n
Petition   (Civil)   No.32660-32670   of   2010,   and   the <\/p>\n
portions   of   the   judgment   delivered   by   Justice   N.\n<\/p>\n
Kumar   concurring   with   the   views   expressed   by   the <\/p>\n
Hon’ble   Chief   Justice,   upholding   the   decision   of <\/p>\n
the   Speaker   on   the   Disqualification   Application <\/p>\n
No.1   of   2010   filed   by   Shri   B.S.   Yeddyurappa.\n<\/p>\n
Consequently,         the         Disqualification         Application <\/p>\n
filed by Shri B.S. Yeddyurappa is dismissed.\n<\/p>\n
95.    There will be no order as to costs.\n<\/p>\n
                                             …………………………………………J.\n<\/p>\n
                                                (ALTAMAS KABIR)<\/p>\n
                                             …………………………………………J.\n<\/p>\n
                                                (CYRIAC JOSEPH)<\/p>\n
New Delhi,<\/p>\n
Dated: 13.05.2011.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Balchandra L Jarkiholi & Ors vs B.S.Yeddiyurappa & Ors on 13 May, 2011 Bench: Altamas Kabir, Cyriac Joseph REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOs.4444-4476 OF 2011 (Arising out of SLP(C)Nos.33123-33155 of 2010) Balchandra L. Jarkiholi & Ors. … Appellants Vs. B.S. Yeddyurappa & Ors. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-231006","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBalchandra L Jarkiholi & Ors vs B.S.Yeddiyurappa & Ors on 13 May, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/balchandra-l-jarkiholi-ors-vs-b-s-yeddiyurappa-ors-on-13-may-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Balchandra L Jarkiholi & Ors vs B.S.Yeddiyurappa & Ors on 13 May, 2011 - Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.legalindia.com\/judgments\/balchandra-l-jarkiholi-ors-vs-b-s-yeddiyurappa-ors-on-13-may-2011\" \/>\n<meta property=\"og:site_name\" content=\"Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/LegalindiaCom\/\" \/>\n<meta property=\"article:published_time\" content=\"2011-05-12T18:30:00+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2016-01-12T01:31:09+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1\" \/>\n\t<meta property=\"og:image:width\" content=\"512\" \/>\n\t<meta property=\"og:image:height\" content=\"512\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"author\" content=\"Legal India Admin\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:creator\" content=\"@legaliadmin\" \/>\n<meta name=\"twitter:site\" content=\"@Legal_india\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Legal India Admin\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"93 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\\\/\\\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/balchandra-l-jarkiholi-ors-vs-b-s-yeddiyurappa-ors-on-13-may-2011#article\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/balchandra-l-jarkiholi-ors-vs-b-s-yeddiyurappa-ors-on-13-may-2011\"},\"author\":{\"name\":\"Legal India Admin\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\"},\"headline\":\"Balchandra L Jarkiholi & Ors vs B.S.Yeddiyurappa & Ors on 13 May, 2011\",\"datePublished\":\"2011-05-12T18:30:00+00:00\",\"dateModified\":\"2016-01-12T01:31:09+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/balchandra-l-jarkiholi-ors-vs-b-s-yeddiyurappa-ors-on-13-may-2011\"},\"wordCount\":18692,\"commentCount\":0,\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"articleSection\":[\"Supreme Court of India\"],\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"CommentAction\",\"name\":\"Comment\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/balchandra-l-jarkiholi-ors-vs-b-s-yeddiyurappa-ors-on-13-may-2011#respond\"]}]},{\"@type\":\"WebPage\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/balchandra-l-jarkiholi-ors-vs-b-s-yeddiyurappa-ors-on-13-may-2011\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/balchandra-l-jarkiholi-ors-vs-b-s-yeddiyurappa-ors-on-13-may-2011\",\"name\":\"Balchandra L Jarkiholi & Ors vs B.S.Yeddiyurappa & Ors on 13 May, 2011 - Free Judgements of Supreme Court & High Court | Legal India\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#website\"},\"datePublished\":\"2011-05-12T18:30:00+00:00\",\"dateModified\":\"2016-01-12T01:31:09+00:00\",\"breadcrumb\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/balchandra-l-jarkiholi-ors-vs-b-s-yeddiyurappa-ors-on-13-may-2011#breadcrumb\"},\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"ReadAction\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/balchandra-l-jarkiholi-ors-vs-b-s-yeddiyurappa-ors-on-13-may-2011\"]}]},{\"@type\":\"BreadcrumbList\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/balchandra-l-jarkiholi-ors-vs-b-s-yeddiyurappa-ors-on-13-may-2011#breadcrumb\",\"itemListElement\":[{\"@type\":\"ListItem\",\"position\":1,\"name\":\"Home\",\"item\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\"},{\"@type\":\"ListItem\",\"position\":2,\"name\":\"Balchandra L Jarkiholi & Ors vs B.S.Yeddiyurappa & Ors on 13 May, 2011\"}]},{\"@type\":\"WebSite\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#website\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\",\"name\":\"Free Judgements of Supreme Court & High Court | Legal India\",\"description\":\"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. A comprehensive database for lawyers, advocates, and law students.\",\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"alternateName\":\"Free judgements of Supreme Court & High Court of India | Legal India\",\"potentialAction\":[{\"@type\":\"SearchAction\",\"target\":{\"@type\":\"EntryPoint\",\"urlTemplate\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/?s={search_term_string}\"},\"query-input\":{\"@type\":\"PropertyValueSpecification\",\"valueRequired\":true,\"valueName\":\"search_term_string\"}}],\"inLanguage\":\"en-US\"},{\"@type\":\"Organization\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\",\"name\":\"Judgements of Supreme Court & High Court | Legal India\",\"alternateName\":\"Legal India\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\",\"logo\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/logo\\\/image\\\/\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/wp-content\\\/uploads\\\/sites\\\/5\\\/2025\\\/09\\\/legal-india-icon.jpg\",\"contentUrl\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/wp-content\\\/uploads\\\/sites\\\/5\\\/2025\\\/09\\\/legal-india-icon.jpg\",\"width\":512,\"height\":512,\"caption\":\"Judgements of Supreme Court & High Court | Legal India\"},\"image\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/logo\\\/image\\\/\"},\"sameAs\":[\"https:\\\/\\\/www.facebook.com\\\/LegalindiaCom\\\/\",\"https:\\\/\\\/x.com\\\/Legal_india\"]},{\"@type\":\"Person\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\",\"name\":\"Legal India Admin\",\"image\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"url\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"contentUrl\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"caption\":\"Legal India Admin\"},\"sameAs\":[\"https:\\\/\\\/www.legalindia.com\",\"https:\\\/\\\/x.com\\\/legaliadmin\"],\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/author\\\/legal-india-admin\"}]}<\/script>\n<!-- \/ Yoast SEO plugin. -->","yoast_head_json":{"title":"Balchandra L Jarkiholi & Ors vs B.S.Yeddiyurappa & Ors on 13 May, 2011 - Free Judgements of Supreme Court & High Court | Legal India","robots":{"index":"index","follow":"follow","max-snippet":"max-snippet:-1","max-image-preview":"max-image-preview:large","max-video-preview":"max-video-preview:-1"},"canonical":"https:\/\/www.legalindia.com\/judgments\/balchandra-l-jarkiholi-ors-vs-b-s-yeddiyurappa-ors-on-13-may-2011","og_locale":"en_US","og_type":"article","og_title":"Balchandra L Jarkiholi & Ors vs B.S.Yeddiyurappa & Ors on 13 May, 2011 - Free Judgements of Supreme Court & High Court | Legal India","og_url":"https:\/\/www.legalindia.com\/judgments\/balchandra-l-jarkiholi-ors-vs-b-s-yeddiyurappa-ors-on-13-may-2011","og_site_name":"Free Judgements of Supreme Court & High Court | Legal India","article_publisher":"https:\/\/www.facebook.com\/LegalindiaCom\/","article_published_time":"2011-05-12T18:30:00+00:00","article_modified_time":"2016-01-12T01:31:09+00:00","og_image":[{"width":512,"height":512,"url":"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1","type":"image\/jpeg"}],"author":"Legal India Admin","twitter_card":"summary_large_image","twitter_creator":"@legaliadmin","twitter_site":"@Legal_india","twitter_misc":{"Written by":"Legal India Admin","Est. reading time":"93 minutes"},"schema":{"@context":"https:\/\/schema.org","@graph":[{"@type":"Article","@id":"https:\/\/www.legalindia.com\/judgments\/balchandra-l-jarkiholi-ors-vs-b-s-yeddiyurappa-ors-on-13-may-2011#article","isPartOf":{"@id":"https:\/\/www.legalindia.com\/judgments\/balchandra-l-jarkiholi-ors-vs-b-s-yeddiyurappa-ors-on-13-may-2011"},"author":{"name":"Legal India Admin","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea"},"headline":"Balchandra L Jarkiholi & Ors vs B.S.Yeddiyurappa & Ors on 13 May, 2011","datePublished":"2011-05-12T18:30:00+00:00","dateModified":"2016-01-12T01:31:09+00:00","mainEntityOfPage":{"@id":"https:\/\/www.legalindia.com\/judgments\/balchandra-l-jarkiholi-ors-vs-b-s-yeddiyurappa-ors-on-13-may-2011"},"wordCount":18692,"commentCount":0,"publisher":{"@id":"https:\/\/www.legalindia.com\/judgments\/#organization"},"articleSection":["Supreme Court of India"],"inLanguage":"en-US","potentialAction":[{"@type":"CommentAction","name":"Comment","target":["https:\/\/www.legalindia.com\/judgments\/balchandra-l-jarkiholi-ors-vs-b-s-yeddiyurappa-ors-on-13-may-2011#respond"]}]},{"@type":"WebPage","@id":"https:\/\/www.legalindia.com\/judgments\/balchandra-l-jarkiholi-ors-vs-b-s-yeddiyurappa-ors-on-13-may-2011","url":"https:\/\/www.legalindia.com\/judgments\/balchandra-l-jarkiholi-ors-vs-b-s-yeddiyurappa-ors-on-13-may-2011","name":"Balchandra L Jarkiholi & Ors vs B.S.Yeddiyurappa & Ors on 13 May, 2011 - Free Judgements of Supreme Court & High Court | Legal India","isPartOf":{"@id":"https:\/\/www.legalindia.com\/judgments\/#website"},"datePublished":"2011-05-12T18:30:00+00:00","dateModified":"2016-01-12T01:31:09+00:00","breadcrumb":{"@id":"https:\/\/www.legalindia.com\/judgments\/balchandra-l-jarkiholi-ors-vs-b-s-yeddiyurappa-ors-on-13-may-2011#breadcrumb"},"inLanguage":"en-US","potentialAction":[{"@type":"ReadAction","target":["https:\/\/www.legalindia.com\/judgments\/balchandra-l-jarkiholi-ors-vs-b-s-yeddiyurappa-ors-on-13-may-2011"]}]},{"@type":"BreadcrumbList","@id":"https:\/\/www.legalindia.com\/judgments\/balchandra-l-jarkiholi-ors-vs-b-s-yeddiyurappa-ors-on-13-may-2011#breadcrumb","itemListElement":[{"@type":"ListItem","position":1,"name":"Home","item":"https:\/\/www.legalindia.com\/judgments\/"},{"@type":"ListItem","position":2,"name":"Balchandra L Jarkiholi & Ors vs B.S.Yeddiyurappa & Ors on 13 May, 2011"}]},{"@type":"WebSite","@id":"https:\/\/www.legalindia.com\/judgments\/#website","url":"https:\/\/www.legalindia.com\/judgments\/","name":"Free Judgements of Supreme Court & High Court | Legal India","description":"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. A comprehensive database for lawyers, advocates, and law students.","publisher":{"@id":"https:\/\/www.legalindia.com\/judgments\/#organization"},"alternateName":"Free judgements of Supreme Court & High Court of India | Legal India","potentialAction":[{"@type":"SearchAction","target":{"@type":"EntryPoint","urlTemplate":"https:\/\/www.legalindia.com\/judgments\/?s={search_term_string}"},"query-input":{"@type":"PropertyValueSpecification","valueRequired":true,"valueName":"search_term_string"}}],"inLanguage":"en-US"},{"@type":"Organization","@id":"https:\/\/www.legalindia.com\/judgments\/#organization","name":"Judgements of Supreme Court & High Court | Legal India","alternateName":"Legal India","url":"https:\/\/www.legalindia.com\/judgments\/","logo":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/","url":"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg","contentUrl":"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg","width":512,"height":512,"caption":"Judgements of Supreme Court & High Court | Legal India"},"image":{"@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/"},"sameAs":["https:\/\/www.facebook.com\/LegalindiaCom\/","https:\/\/x.com\/Legal_india"]},{"@type":"Person","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea","name":"Legal India Admin","image":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","url":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","contentUrl":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","caption":"Legal India Admin"},"sameAs":["https:\/\/www.legalindia.com","https:\/\/x.com\/legaliadmin"],"url":"https:\/\/www.legalindia.com\/judgments\/author\/legal-india-admin"}]}},"modified_by":null,"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_likes_enabled":true,"jetpack-related-posts":[],"_links":{"self":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts\/231006","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/comments?post=231006"}],"version-history":[{"count":0,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts\/231006\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/media?parent=231006"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/categories?post=231006"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/tags?post=231006"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}