Ahmadi, Cji - (1.) -Special leave granted.
(2.) The appellants are two members of the Tamil Nadu Legislative Assembly elected in the general elections held in 1991. Both of them were candidates set up by All India Anna Dravida Munnetra Khazhagam (for short 'AIADMK'). Mr. Viswanathan was elected from Aroct Legislative Assembly constituency whereas Mr. Azhagu Thirunavukkarasu was elected from Orathanadu constituency. Both of them were expelled from AIADMK party on January 8,1984. In March 16,1994 the Speaker of Tamil Nadu Legislative Assembly(for short 'Assembly')declared the two appellants as 'unattached' member of the Assembly. Enclosing certain papers and other documents one Subburethinam, Member of the Assembly, informed the Speaker that both the appellants have joined another (new) party called Maru Malarchi Dravida Munnetra Khazhagam ('MDMK'for short) and hence they should, as per the provisions of law, be disqualified from the membership of the Assembly. On March 6, 1995 the Secretary Legislative Assembly issued a notice under Rule 7 of the Tamil Nadu Assembly (Disqualification on Ground of Defections) Rules, 1986 and called for the comments of the appellants on the representation made by the Subburethninam to disqualify them. The appellants filed Writ Petitions Nos. 3562 and 3563/95 in the High Court of Judicature at Madras and assailed the said notice of the Secretary of the Assembly, dated March 6,1995. Sivaraj Patil, J. By order dated March 10,1995 dismissed the writ petitions with the following observations: "Having regard to the law declared by the apex Court, I do not think it is appropriate to entertain these writ petitions. The learned Senior Counsel of the petitioner submitted that on similar questions this Court has already entertained two writ petitions by the same petitioners in W. P. No. 5349 of 1994 and 5496 of 1994. When specifically asked the learned Senior Counsel fairly submitted that as on the date when the earlier writ petitions were filed the petitioners were only unattached members having been expelled from the party and did not join other political party, but as on today, they have joined some other political party. Be that as it may, in the light of the judgment of the Supreme Court aforementioned, I am not inclined to entertain these writ petitions." (Emphasis supplied)
(3.) Thereafter, the appellants filed representations before the Speaker, Tamil Nadu Legislative Assembly, stating they were "unattached members" of the Assembly and so the provisions of the Tenth Schedule of the Constitution of India regarding disqualifications did not apply to them. They also prayed that the preliminary question as to whether the Tenth Schedule of the Constitution would apply to them, they being unattached members, may be adjudicated in the first instance. The Speaker considered the entire matter in detail and disposed of the same by separate but similar orders dated April 20, 1995. In paragraph 14 thereof, the Speaker stated thus: "14. The admitted relevant facts which are necessary for determination of the issues raised are as follows:- A. That the respondent contested as an official candidate of All India Anna Dravida Munnetra Khazhagam Party from (Arcot) Orathandu Constituency. B. That he was expelled from All India Anna Dravida Munnetra Khazhagam party for anti-party activities. C. That he had been declared as an 'unattached'member by a ruling dated 16-3-1994 as per the convention and not as per the Tenth Schedule or the relevant rules made by that Act. D. That he had joined another political party, viz.,Marumalarchi Dravida Munnetra Khazhagam." Discussing the matter in detail, the Speaker construed, paragraphs 2(1),2(2) and Explanation (a) to sub-paragraph (1)of paragraph 2 of the Tenth Schedule and held that if a person is set up as a candidate for election by a political party and gets elected, he must be deemed always to belong to the same party from which he was elected and if he joins another political party, it would amount to voluntarily giving up his membership of such political party and will become subject to disqualification under sub-paragraph (1)(a). In the light of the admitted facts and the view of law held by him, particularly in view of the fact that the appellants had not denied in their explanation that they had joined new party, the Speaker in paragraph 20 of the said order, entered the following findings. "1. that he got elected to the Tamil Nadu Legislative Assembly as a candidate set up by a political party (viz.) All India Anna Dravida Munnetra Khazhagam (A.I.A.D.M.K.). 2. that for the purpose of Tenth Schedule he shall be deemed to belong to the Political Party, i.e., All India Anna Dravida Munnetra Khazhagam (A.I.A.D.M.K.)in accordance with the explanatory note of sub-para 2(1) (a), though he had been expelled from that party and declared as an 'unattached' member by me, 3. that he has joined another Political Party viz.,Marumalarchi Dravida Munnetra Khazhagam, 4. that he has not denied any of the contents (sic) of the petitioner as alleged in the petition, and 5. that he does not come under the purview of the exception envisaged in Paragraphs 3 and 4 of the Tenth Schedule." It was held that the appellants had incurred disqualification for being members of the Tamil Nadu Legislative Assembly under Article 191 (2) of the Constitution of India read with Clause (a) of sub-para (1)of Paragraph 2 of Tenth Schedule and had eased to be members of the Assembly with immediate effect.;