GOPALA KRISHANA ELUR AND OTHERS Vs. SRI B.S. YEDDIYURAPPA CHIEF MINISTER AND THE SPEAKER, KARNATAKA VIDHANA SABHA

JUDGEMENT

(1.) These writ petitions are placed before me in view of the order of the Hon'ble Chief Justice dated 18.10.2010 passed in these writ petitions, wherein it is observed that in the Judgment delivered by the Division Bench on 18.10.2010, they had recorded a difference of opinion on one of the issues and the said issue is placed for determination before me. The issue that is referred for determination is as follows:

(2.) The material facts leading up to this reference of the above said question for determination by this Court are as follows:

(3.) The learned senior counsel Sri B.V. Acharya, appearing for petitioners 2 and 3 submitted that since the disqualification of a sitting member of the said legislature would entail serious consequences, the proof required to be discharged by the applicant is beyond reasonable doubt and cannot be proof on the basis of the preponderance of probabilities and the legislators are entitled to benefit of doubt and if two views are possible, on the basis of the inference of the conduct, the view that is beneficial to the elected legislator should be accepted as the legislator would be unseated even though he has been elected by the voters in the constituency and will be disqualified as the member of the State Legislature. The learned senior counsel submitted that apart from the letter submitted by the petitioner dated 6.10.2010 no evidence whatever has been led before the Speaker constituting disqualification under para 2 (1) (a) on the basis of the letter dated 6.10.2010 submitted to the Governor no reasonable man can infer that the petitioners have voluntarily given up the membership of the Bharatiya Janata Party. The learned senior counsel further submitted that the provisions of the Tenth schedule would not restrict the power of judicial review of this Court under Articles 226 and 227 of the Constitution of India and there is no material whatever to show that the petitioners herein have identified themselves with the members of the other party and the inference drawn by the speaker is baseless and the grievance of the applicants was against the Chief Minister and not against the government led by the B.J.P. The learned senior counsel further submitted that the Speaker could not have taken into account the facts subsequent to 6.10.2010 and no material, which was not confronted to the petitioners would have been relied upon by the Speaker and wherefore, the order of the Speaker, which has been passed by not considering the reply given by the petitioners and consideration of the events subsequent to 6.10.2010 and as no material, which was not confronted to the petitioners would have been relied upon by the Speaker, the impugned order cannot be sustained. The learned senior counsel further submitted that in view of Rules 6 and 7 of the Rules, when the petition was not in prescribed form and did not disclose any material to declare disqualification, the same ought to have been rejected under Rule 7(2) of the Rules and it was not necessary to issue show cause notice also and wherefore, the entire enquiry itself is liable to be set aside and consequent orders subsequent to orders culminating in the order of the Speaker are liable to be set aside and wherefore, the order of the Speaker, which has been passed by not considering the reply given by the petitioners and on consideration of the events subsequent to 6.10.2010 and the inference drawn on the basis of the letter given to the Governor dated 6.10.2010 is perverse and wherefore, liable to be set aside.