Ashok Bhushan, J. - (1.) THIS writ petition has been filed by the petitioner, a Member of Uttar Pradesh Legislative Assembly praying for writ of certiorari quashing the order dated 13.10.2011, passed by the Speaker, U.P. Vidhan Sabha declaring the petitioner to be disqualified under the Tenth Schedule of the Constitution of India.
(2.) WE have heard Shri Ravi Kiran Jain, learned Senior Advocate assisted by Shri R.K. Awasthi and Abhishek Tripathi for the petitioner and Shri S.G. Hasnain, learned Additional Advocate General appearing for the respondent No. 2. Before we proceed to consider the respective submission raised by the learned counsel for the petitioner, facts in brief giving rise to this Writ petition need to be noted. The petitioner, being a sponsored candidate of Bahujan Samaj Party from Dibai Assembly Constituency, District Bulandshahar was elected as Member of U.P. Legislative Assembly in the year 2007. On 6.8.2011, petitioner voluntarily left the Bahujan Samaj Party and joined the Samajwadi Party, which declaration was made by the petitioner in the presence of Shri Akhilesh Yadav, State President of Samajwadi Party, and its leader Shri Shiv Pal Yadav and other office bearers which facts were published in the several newspapers including Hindustan, Hindustan Times, Times of India, Amar Ujala, Dainik Jagarn and Rashtriya Sahara along with photographs. A press conference was organized before the leaders of the Samajwadi Party, in which the petitioner accepted the membership of the Samajwadi Party. Coverage of the said press conference was also broadcasted by the electronic media in different channels like E. TV, Uttar Pradesh, India News, Sahara Samay and Zee News etc. The respondent No. 3 who is a State President of Bahujan Samaj Party filed a petition on 11.8.2011 before the Speaker stating that the petitioner has become disqualified w.e.f. 6.8.2011, due to voluntarily leaving the party and joining the Samajwadi Party. The petition was supported by an affidavit dated 11.8.2011 of Sri Swami Prasad Maurya, respondent No. 3. A copy of the newspaper reports and other materials as referred to in the petition were part of the petition. The copy of the petition was served on the petitioner. The petitioner filed his reply to the petition dated 7.9.2011. Petitioner also made an application on 15.9.2011, for giving names of the correspondent of the newspapers. Again on 4.10.2011, an application was made by the petitioner to reject the petition under Order VII Rule 11 of Code of Civil Procedure. The respondent No. 3 submitted his rejoinder affidavit on 13.9.2011. On 27.9.2011, Shri P.N. Gupta, counsel for the respondent No. 3 submitted a CD. which was taken on record. On 4.10.2011, the CD. submitted by the respondent No. 3 was displayed before the counsel for both the parties and the Speaker heard the parties and gave time to the parties to submit their writ submissions by 7.10.2011. On 7.10.2011, petitioner submitted written submission. The Speaker passed his order on 13.10.2011, declaring that the petitioner has become disqualified under para 2(1) (a) of the Tenth Schedule of the Constitution of India. This petition has been filed challenging the said order. Learned counsel for the petitioner pressing the stay application filed in support of the writ petition prayed that the order dated 13.10.2011 passed by the Speaker disqualifying the petitioner be stayed. He submitted that the petitioner is entitled for grant of ex parte interim order. We, thus proceed to consider submissions which has been advanced in support of his prayer for grant of ex parte interim order.
(3.) FOLLOWING submissions have been advanced by the learned counsel for the petitioner. 1. The petition submitted by the respondent No. 3 dated 11.8.2011, for disqualifying the petitioner being not in accordance with Rule 7 sub-rule (4) was liable to be dismissed under Rule 8 sub-rule (2) of, The Members of Uttar Pradesh Legislative Assembly (Disqualification on Ground of Defection) Rules, 1987" (hereinafter called the "1987 Rules") since it did not contain a concise statement of the material fact and was not accompanied by the copy of the documentary evidence on which the petitioner relies. He submits that Rule 8, sub-rule (2) of the 1987 Rules, which requires the petition to be dismissed which does not comply with the requirement of Rule 7 of the 1987 Rules, is mandatory and contains a requirement as provided in Section 86 of The Representation of People Act, 1951 (hereinafter called the "Act, 1951"). 2. The order of the Speaker of U.P. Legislative Assembly is an order which is based on no evidence, since the only evidence which has been filed by the respondent No. 3 was newspaper reports mentioning that the petitioner who was elected as member of B.S.P has joined the Samajwadi Party which news paper reports cannot be relied as an evidence since there was no other evidence led by the respondent No. 3. 3. On the date of hearing the Compact Disc (CD.) was filed by the respondent No. 3 without serving a copy to the petitioner which has been relied on by the Speaker in his order dated 13.10.2011, without giving any opportunity to the petitioner to lead evidence. In rebuttal which violates the principles of natural justice Shri Ravi Kiran Jain, learned Senior Advocate appearing for the petitioner on the aforesaid submission contended that the impugned order passed by the Speaker is a nullity and deserves to be stayed by this Court. Before proceeding to consider above submissions, we make it clear that our consideration of submissions of the petitioner is only with the object to decide as to whether the petitioner is entitled to an ex parte interim order or not, and we may not be treated to have expressed any concluded opinion on the various issues raised at this stage. The first submission of the learned counsel for the petitioner is based on Rule 7 sub-rule (4) and Rule 8 sub-rule (1) and sub-rule (2) of Rules, 1987 which is to the following effect: "7(1)................... (2)................. (3)................. (4) Every petition,- (a) shall contain a concise statement of the material facts on which the petition is based, and (b) shall be accompanied by copies of documentary evidence, if any, on which the petitioner relies and where the petitioner relies on any information furnished to him by any person a statement containing the names and addresses of such person and the gist of such information as furnished by each such person. 8.(1) On receipt of a petition under Rule 7, the Speaker shall consider whether the petition complies with the requirements of that rule. (2) If the petition does not comply with the requirements of Rule 7, the Speaker shall dismiss the petition and intimate the petitioner accordingly. ;