- (1.) We have heard learned Counsel for parties at length on their appearance towards the notice dated 07.09.2011 issued by this Court. The said order on reproduction reads as under: Heard learned Senior Counsel for Petitioner and perused the pleadings of writ petition. Learned Senior Counsel referred to Schedule X Para 2(1)(a) of the Constitution to argue that by holding a press-conference with the leader of Samajwadi Party before resigning his membership of the Bahujan Samaj Party, the Petitioner had in fact disclosed his intention to resign. Therefore, the proceedings initiated under the Members of Uttar Pradesh Legislative Assembly (Disqualification on grounds of defection) Rules, 1987, before the Speaker, U.P. Legislative Assembly, would not be maintainable without a decision on the issue of resignation. Issue notice to Respondents. Dasti as well. List the matter tomorrow at 10.15 A.M. for hearing.
(2.) Shri Umesh Chandra, learned senior Advocate, submitted that on 09.05.2011, the Petitioner, a Member of Ruling Party called Bahujan Samaj Party, made an announcement in Lucknow in a press conference that he would resign from the membership of U.P. Legislative Assembly from Masauli Constituency situated in District Barabanki. Thereafter, he went to his Constituency and from there addressed his resignation letter to the Speaker, U.P. Legislative Assembly, on the same day, through a courier service called 'Blue Dart Courier' vide shipment No. 60105567970. However, that letter could not be delivered and as such it was returned to the Petitioner on 11.05.2011. Thereafter, on 12.05.2011, the Petitioner again sent the same letter of resignation through courier vide shipment No. 13136565794 from Barabanki. However, the courier again could not be delivered as the office of the Speaker is said to be situated in No. Entry Zone and thus it was returned to the Petitioner on 17.05.2011. In the meantime, the Petitioner also sent a copy of his resignation through fax on 12.05.2011. Thereafter, the Petitioner came to know through some newspapers (Lucknow Edition) of 12.05.2011 and 13.05.2011 that a petition for declaring him disqualified from the membership of U.P. Legislative Assembly was filed before the Speaker on 11.05.2011 by opposite party No. 2.
(3.) Now, the one and only issue raised by learned senior counsel before us is that since the resignation letter and application declaring for disqualification of the Petitioner are pending before the Speaker it would be appropriate in the light of the Rules of Allocation of Business of House that the Speaker may be directed to decide the issue of acceptance of resignation before he takes up the application for declaration of disqualification of the Petitioner. Learned senior counsel submitted that the seat of Petitioner in the present facts and circumstances of the case shall stand vacated only under Article 190(3)(a) & (b) and Article 191(2) of the Constitution, which on reproduction read as: 190. Vacation of seats. -(1)... (2)... (3) If a member of a House of the Legislature of a State ? (a) becomes subject to any of the disqualifications mentioned in Clause (1) (or Clause (2)) of Article 191; or (b) resigns his seat by writing under his hand addressed to the Speaker or the Chairman, as the case may be, and his resignation is accepted by the Speaker or the Chairman, as the case may be,) his seat shall thereupon become vacant: (Provided that in the case of any resignation referred to in Sub-clause (b), if from information received or otherwise and after making such inquiry as he thinks fit, the Speaker or the Chairman, as the case may be, is satisfied that such resignation is not voluntary or genuine, he shall not accept such resignation. 191. Disqualifications for membership.- (1)... (2) A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule.;