- (1.) This writ petition has been filed by the Petitioner Jaswant Singh Gurjar, who is former MLA and a resident of Dholpur in Rajasthan, under Articles 226 and 227 of the Constitution of India with the following prayer: a. That this Hon'ble Court may direct the Respondent No. 1 Hon'ble Speaker of the Rajasthan State Legislative Assembly, Jaipur to decide the application of the Petitioner applicant seeking releasing of petition No. 1/2009 for its adjudication by the Hon'ble High Court on the next date of hearing 3-5-2010 (last date 26-2-2010) and thereafter conduct the proceedings on day-to-day basis if need be. b. That in case of Hon'ble Court reaching to a satisfaction that Hon'ble Speaker will not comply with the direction within the time appointed for the purpose, the petition No. 1/2009 may kindly be ordered to be withdrawn to this Hon'ble Court and thereafter decide by this Hon'ble Court in view of the position of law settled by the Hon'ble Supreme Court in the case of Rajendra Singh Rana v. Swami, Prasad Mourya, 2007 AIR(SC) 1305. c. Any other relief or order which your honour may deem fit to be given to the Petitioner in the facts and circumstances of the case, may kindly also be given.
(2.) Brief facts of the case are that the Petitioner submitted a petition under para 2(1) of Schedule X and Article 191 of the Constitution of India on 21-4-2009 before the Respondent No. 1 Hon'ble Speaker, Rajasthan State Legislative Assembly seeking disqualification of one Mr. Giriraj Singh Mallinga, who was elected as MLA for the 13th House of Rajasthan State Legislative Assembly in December 2008, from Bari Constituency. It has been stated that Mr. Giriraj Singh Mallinga had voluntarily given up the membership of his original political party BSP which had set him up as a candidate in the elections for the 13th Assembly of Rajasthan in December 2008 from Bari Constituency on 4-4-2009 and therefore the disqualification prescribed under para 2(1) of the Schedule X was squarely attracted and he deserved to be disqualified by the Hon'ble Speaker in exercise of powers vesting in him under para 6 of the Schedule X. The Petitioner further submits that the protection of provisions prescribed in para 4 of the schedule X were not available to Mr. Giriraj Singh Mallinga (hereinafter referred to as the defecting MLA) because the para 4(1) needed merger of the original political party into the other political party and for the purpose of para 4(1) the merger was permissible and come into operation only as per para 4(2) if not less than two thirds of the members of legislative party of the concerned MLA in the house have agreed to "such merger" as prescribed in para 4(1) of the X Schedule. Paras 2(1) and 4 of Schedule X read as under: 2. Disqualification on ground of defection (1) Subject to the provisions of paragraphs 2 [***], 4 and 5, a member of a House belonging to any political party shall be disqualified for being a member of the House- (a) if he has voluntarily given up his membership of such political party; or (b) if he votes Or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority, and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention. Explanation.-For the purposes of this sub-paragraph,- (a) an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member; (b) a nominated member of a House shall,- (i) where he is a member of any political party on the date of his nomination as such member, be deemed to belong to such political party; (ii) in any other case, be deemed to belong to the political party of which he becomes, or, as the case may be, first becomes, a member before the expiry of six months from the date on which he takes his seat after complying with the requirements of Article 99 or, as the case may be, Article 188. 4. Disqualification on ground of defection not to apply in case of merger.-(1) A member of a House shall not be disqualified under sub-paragraph (1) of paragraph 2 where his original political party merges with another political party and he claims that he and any other members of his original political party- (a) have become members of such other political party or, as the case may be, of a new political party formed by such merger; or (b) have not accepted the merger and opted to function as a separate group, and from the time of such merger, such other political party or new political party or group, as the case may be, shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and to be his original political party for the purposes of this sub-paragraph. (2) For the purposes of sub-paragraph (1) of this paragraph, the merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger.
(3.) It is stated that after filing of the petition before the speaker on 21-4-2009, the Petitioner came to know through newspapers in the month of May 2009 that the Speaker held the action of the MLA impugned therein in leaving his original political party and joining Indian National Congress as legally tenable and the application filed by the Petitioner is pending adjudication before the Hon'ble Speaker and the Hon'ble Speaker is not passing the order on the application filed by the Petitioner and arbitrarily fixed 3-5-2010. The Petitioner stated that under these compulsive circumstances he filed an application before the Hon'ble Speaker at the first available opportunity i.e. on the date of first hearing, which took place on 7-7-2009 praying for releasing the petition No. 01/2009 submitted on 21-4-2009 earlier under Schedule X and Article 191 of the Constitution of India for its adjudication by the Hon'ble High Court.;