BHAGWAN SHARMA Vs. STATE OF U P

JUDGEMENT

(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.

(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.