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Shri Filipe Nery Rodrigues, Member of the Legislative Assembly of Goa Vs. Shri Sadanand Mhalu Shet Son of Mhalu Shet, - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 107/2005
Judge
Reported in2006(2)BomCR424; (2006)108BOMLR227
ActsEvidence Act - Sections 73 and 114; Government of Union Territories Act, 1963 - Sections 14A; Constitution of India - Articles 19(1), 122(1), 136, 161(2), 212(1), 226 and 227; Procedure and Conduct of Business of the Goa Legislative Assembly Rules, 1992 - Rule 289; Code of Civil Procedure (CPC) ; Member of the Goa Legislative Assembly (Disqualification on Ground of Defection) Rules, 1986 - Rules 3, 3(3), 4, 5, 6, 6(2), 6(3), 6(4), 6(5), 6(6), 6(7), 7, 7(2), 7(4) and 7(6)
AppellantShri Filipe Nery Rodrigues, Member of the Legislative Assembly of Goa
RespondentShri Sadanand Mhalu Shet Son of Mhalu Shet, ;speaker, Goa Legislative Assembly and Shri Vishwas Sata
Appellant AdvocateS.K. Kakodkar, Sr. Adv., ;M.S. Sonak and ;P.S. Rao, Advs.
Respondent AdvocateS.G. Aney, Sr. Adv., ;V.P. Thali and ;G. Pednekar, Advs. for respondent No. 1, ;S.G. Dessai, Sr. Adv. and ;Shivan Dessai, Adv. for respondent No. 2 and ;A.F. Diniz, Adv. for respondent No. 3
DispositionPetition allowed
Excerpt:
constitution - breach of disqualification rules - rule 3 of the member of the goa legislative assembly (disqualification on ground of defection) rule, 1986 (rules) - petitioner was elected as independent mla and had become member of the bjp legislature party -petitioner had, however, never enrolled himself as member of the bjp - bjp in its information under rule 3 had never given any information to the speaker about its increase in strength on account of alleged joining of petitioner as member of the bjp - breach of disqualification rules contended - held, speaker has given unreasonable latitude to the leader of the bjp legislature party and justified the action of not filing form no. 1 and form no. iii with the legislature only on political consideration - procedure prescribed under.....d.d. sinha, j.1. heard mr. s.k. kakodkar, the learned senior counsel assisted by mr. m.s. sonak and mr. p.s. rao, the learned counsel for the petitioner, mr. s.g. aney, the learned senior counsel assisted by mr. v.p. thali and ms. g. pednekar, the learned counsel for respondent no. 1, mr. s.g. dessai, the learned senior counsel assisted by mr. s. dessai, the leaned counsel for respondent no. 2 and mr. a.f. diniz, the learned counsel fox respondent no. 3. 2. the writ petition is directed against the order dated 28.02.2005 passed by the honourable speaker, goa legislative assembly, declaring the petitioner disqualified as a member of the house in accordance with clause 2 of para 2 of the xth schedule of the constitution of india as well under article 161(2) of the constitution of india. 3......
Judgment:

D.D. Sinha, J.

1. Heard Mr. S.K. Kakodkar, the learned Senior Counsel assisted by Mr. M.S. Sonak and Mr. P.S. Rao, the learned Counsel for the petitioner, Mr. S.G. Aney, the learned Senior Counsel assisted by Mr. V.P. Thali and Ms. G. Pednekar, the learned Counsel for respondent No. 1, Mr. S.G. Dessai, the learned Senior Counsel assisted by Mr. S. Dessai, the leaned Counsel for respondent No. 2 and Mr. A.F. Diniz, the learned Counsel fox respondent No. 3.

2. The writ petition is directed against the order dated 28.02.2005 passed by the Honourable Speaker, Goa Legislative Assembly, declaring the petitioner disqualified as a Member of the House in accordance with Clause 2 of para 2 of the Xth Schedule of the Constitution of India as well under Article 161(2) of the Constitution of India.

3. Mr. Kakodkar, the learned Senior Counsel placed before us the following facts and circumstances which have resulted in the Speaker passing the impugned order :

On 1st June, 2002, the petitioner was elected as Member of the Goa Legislative Assembly from Velim Constituency as an independent candidate. The petitioner extended support to the coalition ministry headed by Shri Manohar Parrikar (the then Chief Minister). The petitioner was a Minister in the said cabinet. The respondent No. 1 filed a petition before the Honourable Speaker under Clause (6) of the Tenth Schedule for disqualification of the petitioner under Clause 2 of Para 2 of the Tenth Schedule to the Constitution of India alleging that the petitioner became a Member of Bharatiya Janata Party ('BJP' for short).

4. On 1st February, 2005, respondent No. 1 filed disqualification petition No. 2/05. The Speaker issued publication of notice in the newspaper without making any efforts whatsoever to serve the petitioner personally. On 2nd February, 2005, an advertisement in the newspaper was published whereby the petitioner was asked to take notice that the disqualification petition was filed against him before the Honourable Speaker. The said notice also asked the petitioner to show cause why the interim relief of injunction prayed for in the disqualification petition be not granted against the petitioner. It was also stated in the said public notice that the matter was fixed for healing on 2.2.2005 at 10 a.m. before the Honourable Speaker in his Chamber at Porvorim Legislative Assembly. It was also mentioned in the said notice that in case the petitioner remains absent for hearing in person and through his Advocate, duly authorised, the matter would be heard and determined in the absence of the petitioner, as per the text of the notice which was issued by the secretary, Goa Legislative Assembly dated 1.2.2005 published in the local daily 'Herald' on 2.2.2005.

5. Mr. Kakodkar, the learned Senior Counsel further contended that the petitioner's Advocate appeared before the Speaker on. 2.2.2005 at 10 a.m. and requested for time and the hearing of the petition was postponed till 12.00 noon on the same day. The Advocate for the petitioner again at 12.00 noon requested the Speaker to grant time. However, the request was rejected by the Speaker. No arguments were heard at 12.00 noon on 2.2.2005 by the Speaker on the interim relief nor the date or the time was fixed for communication of the orders on interim relief and, therefore, the petitioner was not aware of passing of any interim relief by the Speaker on the disqualification petition filed by respondent No. 1 and in the absence of any interim order, the petitioner was entitled to participate in the proceedings of the House. However, when the Assembly Session was going on, the petitioner was participating in the proceedings of the Assembly Session, the Speaker through police and Marshal physically removed the petitioner from the House by allegedly invoking Rule 289 of the Rules of Procedure and Conduct of Business of the Goa Legislative Assembly, 1992 (hereinafter, referred to as the 'Goa Rules'). It is contended by the learned Senior Counsel for the petitioner that the Honourable Speaker allegedly issued interim order restraining the petitioner from taking part in the proceedings till the next date of hearing i.e. 4.2.2005 and if at all there was such an order, the same was never communicated to the petitioner. In view of the conflicting reports in the press, the petitioner applied for certified copy of the interim order on 7.2.2005 and it is only thereafter the certified copy of the said order was given to the petitioner. Non-communication of interim order to the petitioner was clearly to deny and deprive the petitioner from approaching the High Court against such an illegal order. The learned Senior Counsel contended that the order dated 28.02.2005 which is impugned in the present petition was passed by the Speaker in total violation of the principles of natural justice, which is also malafide being irrational and suffers from total perversity and, therefore, it cannot be sustained in law for the following reasons :

Mr. Kakodkar, the learned Senior Counsel has submitted that respondent No. 1 filed the disqualification petition with malafide intention on account of political development that took place in Goa at the relevant tune. The alleged cause of action for disqualification of the petitioner, as per respondent No. 1, arose in October, 2002. The petition was filed on 1.2.2005 on the eve of Assembly Session which was called by the Governor of Goa on 2.2.2005 to consider the 'vote of confidence' of Shri Manohar Parrikar led BJP coalition Government in Goa. The manner in which the petition was processed by the Speaker and the alleged interim order was passed by the Speaker on 2.2.2005 without giving even breathing time to the petitioner to putforth his defence and the happenings during the assembly proceedings on 2.2.2005, has caused bona fide apprehension in the mind of the petitioner that he would not get free and fair justice from the Honourable Speaker Shri Vishwas Satarkar.

6. The learned Senior Counsel for the petitioner further contended that some time on 29th January, 2005 four BJP MLAS resigned from BJP Legislature Party. BJP had a strength of 17 Members in the Legislative Assembly after the election results of June, 2002. Subsequently, its strength was increased to 21. When the Government was formed by BJP in June, 2002, the petitioner who was elected as an independent, extended support to the BJP Government and was also a Minister in the said cabinet. On 29.1.2005, the petitioner resigned as Minister and also withdrew the support to the BJP led coalition Government. Along with the petitioner, other Minister Shri Ramkrishna Dhavlikar also resigned as Minister and he along with his party i.e. Maharashtrawadi Gomantak Party also withdrew the support to the said coalition Government headed by Mr. Manohar Parrikar. As a result of these developments, the BJP Government in the State of Goa was reduced to minority. Indian National Congress (INC)) staked its claim before the Governor of Goa to form the Government. The petitioner extended support to the INC for formation of the Government. In this backdrop of the facts, the Governor summoned the Assembly Session on 2nd February, 2002 at 2.30 p.m. for Manohar Parrikar Government to seek a vote of confidence in the House. This decision was announced by the Governor on 1.2.2005. The Notice was published in the local news paper whereby the petitioner was informed that the disqualification petition was field against him and he was called upon to appear before the Speaker for hearing on disqualification petition at 10 a.m. on 2.2.2005. The public notice did not indicate that any attempt was made to serve the copy of disqualification petition personally on the petitioner. It was specifically urged at the time of hearing that the service by publication in the news paper of the disqualification petition was not a valid service, since there was no attempt made to serve the petitioner personally. The Speaker, however, refused to grant time as prayed at 10 a.m. on 2.2.2005 and only adjourned the matter till 12.00 noon on the same day, directing the petitioner to file reply within such a short time. The petitioner appeared through the Lawyer at 12.00 noon and filed an application for grant of time by giving reason why the reply could not be prepared within such a short tune. At 12.00 noon on 2.2.2005, the matter was argued only as regards the prayer of the petitioner for time and on the point as to why the prayer of interim relief should not be considered without giving opportunity to the petitioner to file reply. The learned Counsel for the petitioner could not argue anything on interim relief for want of instructions from the petitioner.

7. Mr. Kakodkar, the learned Senior Counsel has submitted that the Speaker rejected the application filed by the learned Counsel for the petitioner for grant of time and reserved the order on interim injunction without hearing the petitioner on merits of the case. At the Assembly Session at 2.30 pm., during the recess time, the Honourable Speaker invited the petitioner to his Chamber. However, the petitioner apprehended some untoward incident since the voting was to take place after recess on no confidence motion. Avoided to go to the Chamber of the Honourable Speaker after recess time of Assembly Session on 2.2.2005. The Honourable Speaker directed to remove the petitioner from the House by exercising power under Rule 289 of the Rules of Business. The petitioner was then removed from the House by force by Marshal. The intention of the Speaker was quite evident that the petitioner somehow should not be permitted to participate n the Assembly Session, particularly because the petitioner had already withdrew his support to the Parrikar led coalition Government and the session was convened at the time when the INC claimed to have strength of 18 Members in 36 Members house, including the support of the petitioner.

8. It is contended by the learned Senior Counsel that the Office of the Speaker is an august office and in our system of Parliamentary democracy, the Speaker has to rise above party affiliation. Unfortunately, the Honourable Speaker Shri Satarkar in utter violation of this reach tradition of the Chair of the Speaker demonstrated the partisan attitude to serve the purpose of political party. The filing of the disqualification petition and taking cognizance by the Speaker at the relevant time was merely to save the BJP Government and the manner in which the proceedings of disqualification petition were processed by the Speaker without giving any time whatsoever to the petitioner to file reply and passing of the interim order in a hurry, there was a strong apprehension in the mind of the petitioner that he would not get free and fair and unbiased decision in the disqualification petition filed by respondent No. 1 and, therefore wanted the Speaker to disassociate with those proceedings of disqualification by referring them to the Privilege Committee of the House. It is contended that no attempts were made by the Speaker to serve the petitioner on 1.2.2005 and the rejection of the request of grant of time made by the Lawyer of the petitioner at 10 a.m. and 12.00 noon on 2.2.2005 by the Speaker, and passing of the alleged interim relief in total haste clearly demonstrate that the order impugned is mala fide, perverse and also violative of principles of natural justice.

9. Mr. Kakodkar, the learned Senior Counsel further contended that apart from the above referred facts, there are other circumstances which further demonstrate that the conduct of the Speaker was biased and, therefore, the order impugned is malafide and perverse. The learned Senior Counsel for the petitioner contended that the disqualification petition filed by respondent No. 1 was not in conformity with Rule 6 of the Disqualification Rules which requires that every petition and annexures shall be signed by the person filing such petition and must be verified in the manner laid down in the Code of Civil Procedure. It is submitted that the disqualification petition was not verified as per Rule 6 of the Rules. Similarly, Rule 7(2) provides that the Speaker shall dismiss such petition which is not in conformity with the requirement of Rule 6. However, in the instant case though the disqualification petition was not in conformity with the requirement of Rule 6, the Speaker for collateral consideration did not exercise the power under Rule 7(2) and did not dismissed the disqualification petition. Mr. Kakodkar, the learned Senior Counsel further contended that Rule 6(5) provides that every petition shall be accompanied by copies of documentary evidence on which the petitioner relies. In the instant case, the respondent No. 1 filed the disqualification petition on 1.2.2005 and the documents at serial Nos. 1 to 3 mentioned in the list of documents were produced before the Speaker at the time of hearing fixed at 10 a.m. on 2.2.2005 and the document at serial No. 4 was produced at 12.00 noon on 2.2.2005. It is, therefore, evident that the respondent No. 1 did not file any document along with the Disqualification petition on 1.2.2005 and, therefore, the disqualification petition ought to have been dismissed as per the mandate of Rule 7(2) of the Rules.

10. Mr. Kakodkar, the learned Senior Counsel farther submitted that the petitioner is elected as an Independent MLA from Velim Constituency during the elections held in May, 2002 and continues to be an independent MLA till this date and has never become a Member of the BJP legislature party. The petitioner is never been enrolled himself as primary or other member of the BJP. It is contended that Rule 3 of the Member of the Goa Legislative Assembly (Disqualification on Ground of Defection) Rule, 1986 ('Disqualification Rules' for short) provides that the leader of each legislature party (other than a legislature party consisting of only one member) shall, within thirty days after the first sitting of the House, furnish information to the Speaker in the form of statement containing the names of the member of the Legislature Party together with particulars in Form-I. Sub-rule (3) of Rule 3 provides that whenever any change takes place in such information furnished, information should be furnished to the Speaker in respect of such change within 30 days thereafter. Rule 4 provides for information to be furnished by member in Form III and Rule 5 provides that the Secretary of the Legislature shall maintain in form IV based on information under Rules 3 and 4. It is contended by the learned Senior Counsel that the petitioner continues to be an independent MLA and has furnished the necessary information under Rule 4 of the Disqualification Rules. The BJP in its information under Rule 3 has never given any information to the Speaker about its increase in strength on account of the alleged joining of the petitioner as Member of the BJP. It is contended that after October, 2002 Shri Atanasio Monserrate, MLA belonging to United Goan Democratic Party (UGDP) and Shri Pandurang Madkaikar, MLA belonging to the Maharashtrawadi Gomantak Party (MGP) joined the BJP which is rightly reflected in the bulletin issued by the Secretary (Legislature) after recording the above changes. In January, 2005, Shri Francisco Pacheco, MLA belonging to the UGDP (Secular) joined the BJP. Bulletin was issued incorporating the above change as required under the Rules. It is further contended by the learned Senior Counsel that during the Assembly Sessions held after October, 2002, BJP had issued whip to its legislators. Not once, the petitioner was issued whip by the BJP or his signature was obtained on the whip. In the bulletin issued by the Secretary as required under the Rules on 21.12.2004, the petitioner is shown as an independent MLA. It is, therefore, contended by the learned Senior Counsel for the petitioner that there is no substance in the allegations made by respondent No. 1 in the disqualification petition that the petitioner has become the member of BJP or has joined the BJP, supporting the coalition Government headed by BJP as an independent MLA and, therefore, the membership books were handed over to him by the BJP Office to be handed over the same to their Velim representative Shri Valentino Rebello and, therefore, the petitioner did not feel anything wrong in handing over the said membership books to Mr. Valentinho Rebello. Similarly, Mr. Valentinho Rebello had handed over to the petitioner some books along with cash of Rs. 500/- for handing over the same in BJP Office at Panaji which also the petitioner did not consider anything wrong in doing so, particularly when the petitioner was supporting the coalition Government headed by BJP, as the independent MLA The learned Senior Counsel further contended that the disqualification petition filed by the respondent No. 1 on 1.2.2005 does not comply with the Rules 6(4), 6(5) and 6(6) of the Disqualification Rules. The Speaker did not dismiss the disqualification petition by exercising the powers under Rule 7(2) since respondent No. 1 did not comply with the requirement of Rule 6. The petitioner alleges that respondent No. 1 has alleged in the petition that the petitioner has joined BJP in October, 2002. There is no date on which the petitioner had joined BJP in October, 2002. The manner and method is not mentioned in the Disqualification petition. There is no allegation made In the petition that the petitioner was enrolled as primary member of the BJP. The copies of all the documents relied upon by the respondent No. 1 were not annexed with the disqualification petition. The petitioner's Advocate was given copy of the petition at 10.00 a.m. on 2.2.2005. Copies of three listed documents were produced before the Speaker at 10 a.m. on 2.2.2005 and copy of the fourth document was produced by respondent No. 1 at 12 noon on 2.2.2005 before the Speaker. The originals of such documents were not filed on record by respondent No. 1. Copies of the photos annexed with the petition are the photographs taken at the alleged BJP convention held in September, 2003. Negatives of all those photographs were not produced before the Speaker. The copy of the register issuing member ship book, signature of the petitioner acknowledging receipt of membership, similarly copy of the register of collection of membership book, the petitioner's signature in token of return of membership book of Velim Constituency though not disputed by the petitioner, however, no enrollment form of any members out of 700 members allegedly enrolled by the petitioner was produced before the Speaker by respondent No. 1. Of the alleged enrollment form of the petitioner for membership of the BJP dated 16.11.2002, only xerox copy was accompanied with the application filed by respondent No. 1 on 15.11.2002. No reference was made to this documents (enrollment Form dated 16.11.2002) nor was it annexed with the disqualification petition. The petitioner opposed the production of all the documents by application dated 16.2.2005 by specifically denying the signature thereon. The alleged enrollment form dated 16.11.2002 related to the period 2003-2008 and, therefore, could not have been used for enrolling the member on 16.11.2002. There are no allegations in the disqualification petition that the petitioner had paid the membership fee of Rs. 5/- or issued receipt therefor. The petitioner since not knowing Marathi could not have submitted the enrollment form in Marathi. The membership form dated 16.11.2002 alleged to have been filled in by the petitioner is in Marathi.

11. Assuming without admitting that the purported enrollment form only expresses desire to become the member, the filing of such form does not make the applicant a member. The membership of a private association can never be a matter of right. Some certificate or membership is necessary to show and establish that the particular person is admitted as a member of the organisation. Admittedly, the original of the alleged enrollment form is not available in the record of proceedings which was in the custody of the Speaker. That after passing of the impugned order of disqualification, the then Speaker resigned and carried away the record of the proceedings and returned it to the Speaker's Office only on 2.3.2005. This was clearly intended to show that there was original available and may have been misplaced to avoid presumption of forgery by respondent No. 1. The inspection of the original documents, including the document dated 16.11.2002 was given to the petitioner and mention of it in the Roznama dated 19.2.2005 is completely false and is also evident from the fact that there is no original of the document dated 16.11.2002 in the record of the Speaker. The Affidavit of Satish Dhond, General Secretary of BJP produced on 19.2.2005 was objected to by the petitioner as false. The said affidavit is also not verified according to law.

12. Respondent No. 1 had stated before the Speaker that he would not lead any evidence (see Roznama dated 16.2.2005 as well as the impugned order) and could not have been permitted by the Speaker to substitute the affidavit evidence to achieve the same object indirectly. No opportunity was offered to the petitioner by the Speaker to cross examine Mr. Satish Dhond. As far as copy of the BJP Electoral Roll of Velim Constituency is concerned, there is no reference to this document in the disqualification proceedings. It is a computer print out, and does not show who computed the chart and on what date. It is clearly a manipulated computer product and was produced only after the Speaker asked for it.

13. Valentinho Rebello for whom the alleged membership books were collected by the petitioner was himself enrolled as a member on 19.11.2002; whereas the petitioner alleged to have been made member of BJP on 16.11.2002. The allegations made by respondent No. 1 against the petitioner cannot be taken as authentic or genuine. Even otherwise, the alleged enrollment form is the document made by the BJP over which the petitioner had no control. The petitioner knows nothing about the news paper, which is based on the alleged enrollment form dated 16.11.2002 and the petitioner has denied having signed the said enrollment form, the original thereof is also not on record, such a fabricated document should not have been relied upon by the Speaker as an admissible evidence to hold that the petitioner has incurred disqualification. Gomant Shakti is, not a news paper and it is an in-house magazine of BJP for private circulation among the members and the contents thereof in Marathi could not be known to the petitioner to contradict since the petitioner does not know Marathi.

14. Mr. Kakodkar, the leaned Senior Counsel for the petitioner has advanced the following legal contentions in order to demonstrate that the impugned order passed by the Honourable Speaker is not sustainable in law. It is contended that the purport and requirement of Paragraph 2(1)(a) of the Tenth Schedule is completely different and distinct than that of the requirement of Paragraph 2(2) of the Tenth Schedule and therefore, the approach of the Court to interpret paragraph 2(2) must be. different from the approach to interpret paragraph 2(1)(a) of Tenth Schedule. Paragraph 2(1) applies to a member of a political party voluntarily giving up his membership of such political party and thereby incurs disqualification. Whereas paragraph 2(2) requires the elected member of the House otherwise than a candidate set up by the political party, if joins, any political party after such election, incurs disqualification under this clause. It is, therefore, contended that they are two clauses distinct and separate. The members of political party are elected on the party manifesto. Whereas, the person contesting the election as an independent, has no manifesto for governance. He is elected purely on the promises given by him to the constituency to use his office to voice grievances of the constituency in the Legislative Assembly. Mr. Kakodkar, the learned Senior Counsel, therefore, contended that the Judgments based on paragraph 2(1)(a) of Tenth Schedule have no relevance and cannot, therefore, be construed to be the guidelines to interpret paragraph 2(2) of the Tenth Schedule.

15. The learned Senior Counsel for the petitioner has vehemently argued that the important point to be borne in mind in construing the expression 'join' in Paragraph 2(2) is that the Member of Legislative Party is not denied the freedom of association guaranteed by Article 19(1)(c) of the Constitution. There is no prohibition on the members of the legislative assembly to associate with each other or attend political conventions. The Court will have to reconcile the freedom guaranteed by Article 19(1)(c) and the provisions of paragraph 2 (2) of the Tenth Schedule.

16. It is contended by the learned Senior Counsel for the petitioner that the coalition government being the order of the day, the freedom to associate with members of other political party must be greater than the one when there was two parties rule. The members of a political party or the independents supporting a coalition government are committed to support the programmes and policies of the rival political party in majority in the legislature leading the coalition government. Indeed, if they are prohibited from doing so, there will be no democratic government in the country, particularly when no single party is getting the majority to form the Government. It is vehemently contended that while interpreting and construing the expression 'join' used in Paragraph 2(2) of the Tenth Schedule, the Court should take into consideration the above referred contemporary political scenario. In the backdrop of the above referred facts, the expression 'join' cannot be interpreted loosely or in an elastic manner, but it must be rigorously limited as applicable to exceptional cases where the conduct clearly demonstrates that such independent elected member of the House has joined any political party after such election. The learned Senior Counsel further submitted that as far as Courts are concerned, the safe rule is to limit to cases where it is a proven fact that the independent MLA is enrolled as a member of the political party or expressly admits that he has joined the political party. In coalition culture, mere fact of associating with the members of the political party to which the support is extended by the independent MLA itself does not attract disqualification under Clause 2(2) of the Tenth Schedule. It is submitted that so far as decision of this Court in the case of Narsingrao Gurunath Patil and Ors. v. Arun Gujarathi Speaker and Ors. : 2003(1)BomCR363 is rendered by this Court in view of the contingencies mentioned in Clause 2(1)(a) of the Tenth Schedule and, therefore, the criteria and the requirement for incurring disqualification under Clause 2(2) being different and distinct, the conclusion arrived at by the Division Bench of this Court in the said Judgment cannot be ipso facto made applicable in the present case where the disqualification alleged to have been incurred by the petitioner under Clause 2(2) of the Tenth Schedule.

17. It is contended that the Apex. Court in the case of Kihoto Hollohan v. Zachillhu and Ors. : [1992]1SCR686 considered the scheme and interpretation of Clause 2(1)(a) of Tenth Schedule and, therefore, merely because in paragraph 13 of its Judgment though it is observed that the same yardstick is applicable to the person who is elected as an independent candidate and wishes to join a political party after the election, in that sense, it does not reflect that the said observations were made by the Apex Court after taking into consideration the scheme and requirement of the provisions of paragraph 2(2) of the Tenth Schedule.

18. Mr. Kakodkar, the learned Senior Counsel contended that the provisions of Tenth Schedule needs to be construed strictly and rigorously complied with and the Rules framed thereunder must also be complied with by the Speaker while dealing with the reference under paragraph 6 of Tenth Schedule. In order to substantiate his contention, reliance is placed on the Judgment of the Apex Court in the case Sadashiv H. Patil v. Vithal D. Teke and Ors. : AIR2000SC3044 . It is further contended by the learned Senior Counsel that since the Rules of Procedure are evolved by the Speaker in view of Clause 8 of Tenth Schedule, he is required to follow those Rules to give effect to the provisions of the Constitution and non-adoption of procedure by the Speaker prescribed under the Rules cannot be sidelined as mere procedure or no consequence. In order to substantiate the contention, reliance is placed on the decision of the Apex Court in the case of Mayawati v. Makandeya Chand and Ors. : AIR1998SC3340 .

19. Mr. Kakodkar, the learned Senior Counsel further contended that the Speaker acts as a Tribunal while considering the disqualification and, therefore, the Indian Evidence Act is applicable to the proceedings of disqualification. It is submitted that the Speaker was only entitled to consider and rely only on the evidence placed before respondent No. 1 in the form of petition or other documents which were admissible as well as substantial and cogent. It is contended that the Honourable Speaker, in the impugned order itself has observed that he has, in fact, followed certain provisions of the Evidence Act, such as Section 73 while comparing the disputed signature of the petitioner. It is, therefore, contended that the Honourable Speaker having accepted the fact that the provisions of the Evidence Act were applicable, ought not to have permitted respondent No. 1 to place on record the documents No. 1 to 4 without filing the original thereof on record. In other words, after the documents which are filed in the form of xerox copies of the originals or otherwise, without filing the originals thereof the Speaker should not have or ought not to have considered those documents and should not have relied upon those documents since the said documentary evidence was completely inadmissible in law and, therefore, the order impugned suffers from inherent infirmity and, therefore, has resulted into absurdity and irrationality.

20. Mr. Kakodkar, the learned Senior Counsel, without admitting has submitted that though it is presumed for the sake of argument that the Tribunals are entitled to act on any material which is logically prohibited even though it is not evidence in the Court of law even then while assessing the evidence, the Tribunal must consider before accepting the same as to whether such evidence is logically prohibitive and is cogent. However, relying on such evidence, the Tribunal cannot deviate from the rules of natural justice and fail' play and an opportunity must have to be given to the other side to putforth his defence. The learned Senior Counsel submitted that the Tribunal examined the evidence in a perverse manner and drew the conclusions which, on the face of it, are erroneous. This would, obviously is a patent perversity in appreciation of evidence by the Tribunal and rendering the conclusion based on such perverse appreciation of evidence, is not only absurd but totally perverse. In order to substantiate the contention, reliance is placed by the learned Senior Counsel on the case of Haji Zainullah Khan v. Nagar Mahapalika : (1994)5SCC667 . Mr. Kakodkar, the learned Senior Counsel for the petitioner has submitted that in the instant case, in view of the sequence of events, the manner in which the speaker initiated the proceedings of disqualification against the petitioner, the time of entertaining the disqualification petition in regard to the cause of action which had taken place long time ago and not giving even a breathing tune to the petitioner to file reply before passing the interim order which was virtually in the nature of final order, the petitioner had expressed his apprehension that he would not get the fair and unbiased justice at the hands of the Speaker Vishwas Satarkar and, therefore, in such a situation, in view of Rule 7(4) of the Disqualification Rules, the Honourable Speaker should have referred the disqualification to the Privilege Committee. However, by avoiding to take recourse provided under Rule 7(4) of the Rules, the Honourable Speaker retained the disqualification petition before himself and proceeded to pass orders, which clearly demonstrates the oblique motive to prevent the petitioner from participating in the vote of confidence which the Parrikar Government was to obtain on the Floor of the House on 2.2.2005 and, therefore, the final order dated 28.2.2005 suffers from biased and is also malafide. It is contended that it was the duty of the Speaker, in the facts and circumstances of the present case, to refer the disqualification petition filed by the respondent No. 1 to the Privilege Committee of the House. In order to avoid the allegations of bias and malafides, in fact it was not necessary for the petitioner to ask the Speaker to refer the petition to the Privilege Committee, but the Honourable Speaker ought to have suo motu referred the petition to the Privilege Committee in the interest pf justice and fair play. Reliance in this regard is placed on the Judgment of the Apex Court in the case of Dr. Wilfred A. de Souza and Ors. v. Shri Thomazinho Cardozo and Ors. : 1999(1)BomCR594 .

21. Mr. Kakodkar, the learned Senior Counsel has vehemently argued that the breach of Disqualification Rules 3 and 4 would not only mean the breach of procedure, but it also violates the constitutional mandate in the sense that these are the rules which are meant to implement the mandate of the Constitution incorporated in Clause 2 of Tenth Schedule and, therefore, the impugned order which is passed by the Speaker ignoring these aspects and relying only on inadmissible, uncorroborated documentary evidence submitted by respondent No. 1 clearly renders the said order not only malafide, but is also perverse. It is vehemently contended by Mr. Kakodkar, the learned Senior Counsel that the conclusion as to mala fides must necessarily be drawn as an inference from the facts and the conduct cannot be accounted as a normal reaction to a situation and there is no necessity to prove the mala fides by factual evidence. Similarly, where the admitted circumstances and record demonstrate contrary, in such situation merely denial of bias by the respondent No. 1 is of no avail. It is contended that the circumstances in which the disqualification proceedings were pressed by the Speaker and passing of the interim order and not granting even a breathing time to file reply to the petitioner, are the circumstances which demonstrate the bias conduct of the Speaker, which has resulted in passing the impugned order of disqualification of the petitioner.

22. In so far as the concept of perversity is concerned, it is contended by the learned Senior Counsel for the petitioner that in view of the law laid down by the Apex Court in the case of Mayawati v. Markandeya Chand and Ors. (supra), it is clear that the reasonable person must direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from matters which are irrelevant. If he does not obey these rules, he may truly be acting unreasonably and the conclusions recorded in such a situation undoubtedly would be perverse and such a conclusion cannot be sustained in law. It is further contended that in case of Mayawati (supra), Srinivasan, J. has referred to a passage in de Smith which states that unreasonableness is acting in bad faith. The Judgment in the case of Tata Cellular v. Union of India (1994) 6 SCC 651 also made reference to a passage in Union of India and Anr. v. G. Ganayuthan : (2000)IILLJ648SC , which, inter alia, states that the findings arrived at not bona fide are unreasonable.

23. Mr. Kakodkar, the learned Senior Counsel has argued that the application of principle of natural justice does not imply that what is not evidence can be acted upon. On the other hand, what it means is that no material can be relied upon to establish contested facts which are not spoken of by the persons who are competent to speak about them and are subjected to cross examination by the party against whom they are sought to be used. It is further contended that even if it is presumed for the sake of argument that even if all technicalities of the Evidence Act are not strictly applicable, however, it is a perversity if the Tribunal acts on what is not evidence such as hearsay, nor can it justify basing its conclusion on the copies of the documents when the originals are not produced and proved. In order to substantiate this contention, reliance is placed on the Judgment of the Apex Court in the case of Bareilly Electricity Supply Co. Ltd. v. The Workman and Ors. : (1971)IILLJ407SC .

24. Mr. Kakodkar, the learned Senior Counsel for the petitioner has submitted that although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, however, when the signature is strongly disputed by the party who alleged to have signed the document, the normal course is to send such document to the Handwriting Expert rather than the Judge doing the job of the handwriting expert. Mr. Kakodkar, the learned Senior Counsel further contended that the observation of the Speaker in the Roznama dated 19.2.2005 that he gave the inspection of the alleged enrollment form dated 16.11.2002 (original), cannot be accepted as correct. There is no entry in the Roznama that the original of the xerox form was produced or received by the Speaker. It is also contended that the affidavit filed by the Secretary (Legislature) dated 29/11/05 also confirms that there was nothing in the Roznama nor the original membership form dated 16.11.2002 was placed on record of the Speaker. It is, therefore, contended that in the absence of the original, placing reliance on the mere xerox copy by the Speaker and passing the order of disqualification on that basis is an order which is totally perverse.

25. Mr. Kakodkar, the learned Senior Counsel for the petitioner fairly conceded that the decision of the Speaker or the order of disqualification passed by the Honourable Speaker can only be challenged on the ground of violation of constitutional mandate, mala fides, non-compliance with the rules of natural justice and perversity. In order to substantiate this contention, reliance is placed on the Judgments of the Supreme Court in the cases of Kihoto Hollohan v. Zachillhu and Ors., (supra) and in the case of Dr. Mahachandra Prasad Singh v. Chairman, Bihar Legislative Council and Ors. : AIR2005SC69 . Mr. Kakodkar, therefore, contended that the impugned order is passed by the Speaker in total violation of principles of natural justice with the oblique motive, based on extraneous circumstances and, therefore, the same is irrational and perverse. Hence, the same cannot be sustained in law.

26. Mr. Anay, the learned Senior Counsel for the respondent No. 1 has contended that though the Courts have a power of judicial review they would not normally interfere with the order passed by the Speaker in view of the mandate of Clause 7 of Tenth Schedule to the Constitution. It is contended that the power of judicial review of the order of disqualification passed by the Speaker and the extent thereof is considered by the Supreme Court in the case of Kihoto Hollohan v. Zachillhu and Ors., (supra). It is submitted hat the Judgment of the Supreme Court in the case of Kihoto Hollohan clearly demonstrates that the judicial review is available under Articles 136, 226 and 227 of the Constitution only when the Speaker's order contains infirmity based on violation of constitutional mandate, non-compliance with the rules of natural justice and perversity. It is further contended that the Supreme Court in Kihoto Hollohan's case has expressed that the limited scope of the interference available to Courts is not to be seen as an infringement on the courts power of judicial review, but is a acknowledgment by the Courts of Parliamentary traditions which result, from an evolution of the institution of Parliamentary democracy and high position of primacy of the Speaker. It is submitted that the law laid down by the Supreme Court in the case of Kihoto Hollohan in respect of power of judicial review of the Court and extent thereof has been followed by the Supreme Court in the Cases of Ravi Naik v. Union of India 1994(2) SCC 641 and Mayawati (supra) and by this High Court in Arun Gujarati's case. Mr. Aney, the learned Senior Counsel, therefore, contended that in view of the law laid down by the Apex Court, the petitioner can invoke the exordinary jurisdiction of this Court under Articles 226 and 227 only on the ground of violation of constitutional mandate, mala fides, non-compliance with the rules of natural justice, and perversity. It is contended that the petitioner has utterly failed to make out any case on these points and, therefore, the petition is devoid of substance.

27. Mr. Aney, the learned Senior Counsel has further contended that the contention of the petitioner that there is sharp distinction between paragraph 2(1)(a) and paragraph 2(2) of the Tenth Schedule, which operates in two different situations inasmuch as the former applies to a member of a house 'belonging to any political party' voluntarily giving up his membership of such political party, while the later applies to an independent member of the House if he 'joins' any political party after his election cannot be accepted, inter alia, because the object of Tenth Schedule is to ensure political stability and curb the political defection. A political party goes before the electorate with a particular programme and it sets up candidates at the election on the basis of such programme. The provisions of Xth Schedule give recognition to the role of political parties in the political process. A person who gets elected as a candidate set up by the political party is so elected on the basis of the programme of that political party. It is submitted that the Supreme Court has consistently observed that the provisions of paragraph 2(1)(a) of Tenth Schedule proceeds on the premise that the political propriety and morality demand that if after the election an elected member changes his affiliation and leaves the political party which had set him up as a candidate, then he should give up his membership of the legislature and go back to the electorate to seek a fresh mandate. It is contended that it is no doubt true that the elected representatives have right to freedom of speech, right to dissent and freedom of conscience. However, the Supreme Court in Kihoto Hollohan's case has expressed that these rights and freedoms are not absolute and concluded that the anti-defection law recognizes the need to stop unprincipled defection. It is submitted that the Supreme Court in the case of Kihoto Hollohan has specifically held that the same yardstick is to be applied to a person who is elected as an independent candidate and wishes to join a political party after election. Mr. Aney, the learned Senior Counsel has, therefore, contended that the contention canvassed by the learned Senior Counsel for the petitioner that the law laid down by the Apex Court in Kihoto Hollohan's case and Narsingrao Gurunath Patil and Ors. (supra) case applies only to the disqualification incurred in paragraph 2(1)(a) and is not applicable to paragraph 2(2) of Tenth Schedule of the Constitution, is misconceived. It is contended that the language used in paragraph 2(1)(a) and Paragraph 2(2) of the Tenth Schedule clearly demonstrates that both these provisions have been evolved to curb the vice of defection and breach of electoral mandate.

28. Mr. Aney, the learned Senior Counsel has further contended that the Judgment of the Apex Court in Ravi Naik's Case does not lay down that the logic applied to a case under paragraph 2 (1)(a) of the Tenth Schedule, is different from the one to be applied in a case under paragraph 2(2). Mr. Aney, the learned Senior Counsel has further contended that the argument of the petitioner as regards the speaker's order being in violation of constitutional mandate is that the petitioner's status was shown as an independent in the bulletin Part II dated 21.12.2004. It is contended that this bulletin was published on the basis of Form III submitted under Rule 4 of Goa Assembly Rules, which are framed under Clause 8 of the Tenth Schedule. It is contended that the Rules of 1986 are the rules framed by the Speaker to regulate the procedure to be followed by him for exercising power conferred on him under Clause 6(1) of the Tenth Schedule. The said rules are, therefore, subordinate legislation, procedural in nature and cannot be equated to or given the constitutional status of the provisions contained in the Tenth Schedule. The violation of the said rules, therefore, would only amount to an irregularity in procedure, which is immune from judicial review in view of paragraph 6(2) of the Tenth Schedule in view of the law laid down by the Supreme Court in the case of Kihoto Hollohan and followed by the Supreme Court in the cases of Dr. Luis Proto Barbosa v. Union of India and Ors. (1992) (2) SCC 644, Ravi Naik (supra), Mayawati (supra), and Narsingrao G. Patil and Ors. (supra). Mr. Aney, the learned Senior Counsel, therefore, contended that the contention canvassed by the petitioner in this regard, in view of the law laid down by the Apex Court and this Court is devoid of substance.

29. Mr. Aney, the learned Senior Counsel has further contended that even if the Speaker had to proceed under Rule 7(4), the Privilege Committee was headed at the relevant time by the Deputy Speaker, who was also a Member of BJP and the majority member of the said Committee were also Members of BJP and, therefore, the allegations of bias would also apply even against the said Committee. It is pertinent to note that even by referring the petition to the Privilege Committee by the Speaker for preliminary inquiry and for submitting report to the Speaker, it is only the Speaker under Rule 7(6) of the said Rules is required to proceed to determine the question as soon as, may be, after receipt of the report from the said Committee. It is, therefore, not understood as to how the allegations of bias could be circumvented or overcome even if the Speaker would have referred the disqualification petition to the said Committee under Rule 7(4) of the Rules.

30. Mr. Aney, the learned Senior Counsel has submitted that the decision in the case of Dr. Wilfred D'Souza (supra) was given in the facts of that case and is clearly distinguishable. In that case, there was no confidence motion moved against the Speaker which was to be taken up on 29.7.98 before which on 28.7.98 itself the Speaker had passed the ex parte ad interim order restraining 10 MLAs from voting, there by defeating the said no confidence motion moved against him and which was to be taken on the next date. It is further contended that it was specifically submitted before the Speaker that the issues of bias and malafides be decided first as preliminary issues. In the present case, there was no such request made by the petitioner before the Speaker and, therefore, the decision of this Court in case of Dr. Wilfred D'Souza (supra) does not help the petitioner.

31. Mr. Aney, the learned Senior Counsel further contended that under paragraph 6 of the Tenth Schedule, the Speaker is the only Authority envisaged for deciding the disqualification petition and, therefore, the doctrine of necessity is clearly attracted in such cases. In order to substantiate this contention, reliance is placed on the Judgment in the case of Election Commission of India v. Dr. Subramaniam Swamy : AIR1996SC1810 . It is submitted that whenever the proceedings in the form of petition for disqualification of the Member of the House is brought before the Speaker, the Speaker is expected to act quickly on the basis of the evidence placed before him in order to comply with the mandate of the Constitution enumerated in paragraph 2 of the Tenth Schedule. It is contended that if the Member of the House incurs disqualification under any of the contingencies contained in Clause 2 of the Tenth Schedule, in that case, such member loses his right to be a Member of the House and, therefor, the Speaker under Clause 6 of Tenth Schedule has to act quickly in view of the doctrine of necessity in order to comply with the mandate of Clause (2) of the Tenth Schedule of the Constitution. It is, therefore, contended that the provisions of the Disqualification Rules and the powers exercised by the Speaker are perfectly consistent with the scheme of the Tenth Schedule and there is no other motive which can be attributed to the conduct of the Speaker only because the Speaker has acted while conducting the proceedings, efficiently. It is submitted that the respondent No. 1 filed the disqualification petition before the Speaker on 1.2.2005 at about 5.30 p.m. which was accompanied by the affidavit of Rajendra Ganu and list of documents. The Speaker tried to personally serve the notice of the petition on the petitioner. On 2.2.2005, notice of the disqualification petition was published in the news papers whereby the petitioner was informed that the disqualification petition was filed against him before the Speaker and the matter was fixed for hearing on 2.2.2005 at 10 a.m. before the Speaker for consideration of ad interim relief of injunction against the petitioner. The petitioner was asked to remain present for the hearing in person and/or through his Advocate. It is submitted by Mr. Aney the learned Senior Counsel that attempt to serve the petitioner personally was made by the Speaker's Office at 7.30 a.m. at 'Casa Monserrate' at Taleigao. The Serving Officer was informed that the petitioner was not available at the said place and had gone to Velim for getting ready for the Assembly. It is further contended that the Serving Officer went to Velim at the petitioner's residence to serve the notice of the petition. However, the petitioner was not available at Ms residence and the petitioner's wife refused to accept the said notice. It is contended that though the aforesaid facts were denied by the petitioner, mere denial by the petitioner would not change the record of the proceedings of the Speaker. On the other hand, it is evident that the attempt of personal service was made by the Speaker's Office. Though there is no requirement under the disqualification Rules that personal service is required to be effected on the person against whom such petition is filed, it is contended that in any event, after reading the public notice, the petitioner was given opportunity to appear before the Speaker at 10 a.m. on 2.2.2005. Mr. Aney, the learned Senior Counsel, therefore, contended that the argument of the petitioner that there was malafide and bias on the part of the Speaker for not serving the notice personally to him, is completely misconceived. It is submitted that even assuming for the sake of argument that the allegation of the petitioner that no such attempt of personal service was made by him is correct, even then there is no bar in the Tenth Schedule or Rules, prohibiting the Speaker from passing ex parte order if the circumstances so require.

32. Mr. Aney, the learned Senior Counsel further contended that on 2.2.2005 at 10 a.m., the petitioner filed an application for adjournment of time by 15 days. The copy of the petition and the list of documents along with the documents at serial Nos. 1, 2 and 3 which were mentioned in the said list, were given to the petitioner. The inspection of original documents at serial Nos. 1, 2, and 3 was also given to the petitioner at 10 a.m. on 2.2.2005 and it is only thereafter, in view of the urgency in the matter and in order to give opportunity to the petitioner, the hearing on interim relief was adjourned to 12 noon on 2.2.2005. It is contended that at 12 noon, copy of the document at serial No. 4 of the list of documents was also given to the petitioner. Inspection of original of the document was also given to the petitioner. The petitioner again filed an application for adjournment which was rejected by the Speaker. The Speaker at 12 noon considered the arguments of the Advocates for the parties on interim relief and the parties were informed that the order would be communicated to them. Mr. Aney, the learned Senior Counsel, therefore, contended that the allegation of the petitioner that no arguments were heard on interim relief is contrary to the record. Another contention of the petitioner that the principles of natural justice were violated because he was not given the copies of the documents, is also without any basis and contrary to the record. It is submitted that the sequence of events referred to hereinabove clearly demonstrate that the Speaker in view of the urgency of the situation and as per the doctrine of necessity though acted quickly, but after following the proper procedure and in bona fide manner, after complying with the principles of natural justice.

33. Mr. Aney, the learned Senior Counsel has further contended that on 2.2.2005 at 2.30 p.m. the proceedings of the Assembly started and the motion of confidence was moved by Mr. Parrikar in the Assembly House, which was debated. The petitioner was present in the House. There was recess at about 4.00 p.m. The Speaker at about 4.40 p.m. called both the parties in his Chamber. Respondent No. 1 was present in person. The petitioner remained absent. Order was pronounced on interim relief, restraining the petitioner from voting or participating in the House proceedings till the next date of hearing and the matter was fixed on 4.2.2005. It is submitted that when the House assembled after recess, the Speaker conveyed the interim order to the petitioner through the Secretary. However, the petitioner did not leave the House, and, therefore, the petitioner had to be taken out of the House by the Speaker by invoking powers under Section 289 of the Rules. Mr. Aney, the learned Senior Counsel, therefore, contended that the interim order was not only passed after hearing both sides, but was also conveyed through the Secretary. Thus, the argument of the petitioner about mala fides and bias on the part of the Speaker cannot be accepted. It is contended that the mis-behaviour of the petitioner in the House after the recess on 2.2.2005 resulted in his removal was obviously associable to the Speaker's attempt to implement his interim Order and the petitioner's refusal to abide by it.

34. Mr. Aney, the learned Senior Counsel has submitted that there are no direct or personal allegations of mala fides against the Honourable Speaker. The allegations of mala fides are easy to make but difficult to prove and hence requires very high degree of standard of proof. The mala fides must be proved by factual evidence and cannot be inferred from insinuations, conjectures or surmises. In order to substantiate this contention, reliance is placed on the Judgments of the Supreme Court in the case of Pratapsing v. State of Punjab : (1966)ILLJ458SC and the case of E.P. Royappa v. State of Tamil Nadu : (1974)ILLJ172SC . The allegations of facts are required to be proved by the petitioner herein by leading cogent evidence. Inspite of giving ample opportunities by the Honourable Speaker in that regard, the petitioner not only did not examine himself, but failed to lead any evidence on his behalf. In fact, it is evident from the Roznama on record of the Speaker that the petitioner had filed an application dated 16.2.2005 that he did not want to lead any oral evidence. It is, therefore, contended that the allegations of the petitioner regarding malafides, bias on the part of the Speaker are baseless and that the Speaker has acted judicially in discharge of his constitutional obligation which is clear from the impugned order.

35. Mr. Aney, the learned Senior Counsel has further contended that on 4.2.05, the reply was filed by the petitioner to the application for disqualification. In that reply, the petitioner neither specifically raised any objection of bias or mala fides nor demanded that this issue be decided first as an preliminary issue. The petitioner has also not made any request in his reply to the Speaker that the petition be referred to the Privilege Committee under Rule 7(4) of the Disqualification Rules. It is submitted that the petitioner has in the course of hearing before the Speaker admitted his signatures on the documents at serial Nos. 1 and 2 of the List of Documents as well as the fact that he had participated in the Sixth State BJP Conference held in the last week of September, 2003 and addressed from the podium and seconded a political resolution. The petitioner also did not dispute the affidavit of Shri Ganu filed in support of the petition. The petitioner merely denied the fact of becoming member of BJP. However, did not annex any affidavit of Valentino Rebello nor did he request for issuing summons for examining said Rebello, so as to establish his contention that he was only acting on behalf of Mr. Rebello, as Postman in collecting 40 membership books on 16.11.2002 from the BJP Office and returned 28 of them duly filled by the newly enrolled primary members. Mr. Aney, the learned Senior Counsel has contended that the petitioner himself, for the first time, applied for certified copy of the interim order on 7.2.2005 and has not given any explanation or reason as to why he could not apply for the certified copy of the interim order immediately on 2.2.05 or at least on the next date. It is, therefore, contended that it is the petitioner who himself is responsible for not taking any action to obtain the certified copy of the interim order and for his own action, the Speaker cannot be said to be responsible, nor can it be said that the interim order was not served by the Speaker on the petitioner with malafide intention. It is contended that on 11.2.05, respondent No. 1 filed his rejoinder The petitioner filed an application stating that he wanted to file stir-rejoinder. It is contended that the parties were given all the opportunities to produce the pleadings, documents etc. on 14.2.05 by the Speaker. The matter was fixed for hearing/evidence, if any, on 14.2.05. It is contended that respondent No. 1 in his rejoinder filed before the Speaker has stated that respondent No. 1 relied upon the membership form signed by the petitioner to demonstrate that the petitioner has joined BJP and also craved leave to produce the same in the course of healing of the disqualification proceedings. It is contended that on 14.2.05, the petitioner filed sur-rejoinder and, therefore, respondent No. 1 made an application for adjournment wherein it is stated that respondent No. 1 desired to rely upon and produce some more documents in support of his petition which included the primary membership form signed by the petitioner in the said application for adjournment. This application was objected to by the petitioner.

36. It is contended that the petitioner nowhere has mentioned in the said application as to why he was objecting to the production of the membership form. It is contended that the parties were specifically asked as to whether they wanted to lead evidence. The Advocate for the petitioner was requested to produce his witnesses, if any, on the next date. The matter was fixed for hearing/evidence at 12 noon on 15.2.05. It is, therefore, contended that there is nothing objectionable in production of the document by the respondent No. 1. It is contended by Mr. Aney that the contention of the petitioner that the documents were produced by respondent No. 1 not because they wished to do so, but because the Speaker insisted and that shows his mala fide intention and bias. It is submitted that the Speaker's request for the documents was only an attempt to discover the whole truth and completely in keeping with his role as a judicial and fact finding authority. It is submitted that on 15.02.05, respondent No. 1 filed an application to produce additional documents, namely the primary membership form signed by the petitioner on 16.11.02 enrolling himself as primary member of the BJP and Form No. I and Form No. III, both dated 23.10.02 for showing that the petitioner joined BJP. The matter was fixed for reply on the said application on 15.02.05. However, at the request of both the parties, the petition was fixed for final hearing on 16.02.05 at 12 noon. On 16.02.05, the respondent No. 1 filed his reply to the application of the petitioner dated 15.2.05 objecting to the production of the said document of primary membership form on the ground that the Disqualification Rules do not permit production of document after filing of the petition as well as the signature on the said form is not of the petitioner and it is a forgery committed by respondent No. 1. Mr. Aney, the learned Senior Counsel contended that in the reply dated 16.2.2005 filed by the petitioner has not given any reason as to why he did not oppose production of the said document and also did not ask for any opportunity to meet the document. Respondent No. 1 filed his reply to the application filed by the petitioner. On 16.2.05, the petitioner filed an application stating that he did not want to lead any oral evidence in view of the statement made on behalf of the respondent No. 1 that they did not want to lead any oral evidence. On 16.2.05, at the end of the hearing the Advocate for the respondent No. 1 offered inspection of the original membership enrollment form alleged to have been signed by the petitioner, to which the Advocate for the petitioner did not agree and filed the application dated 16/02/05 objecting such inspection at the belated stage.

37. Mr. Aney, the learned Senior Counsel has contended that in the rejoinder dated 11.2.2005, respondent No. 1 has stated that he wanted to rely upon the membership enrollment form and was also granted leave to produce the same in the course of hearing. In the sur-rejoinder before the Speaker, the petitioner did not specifically state that the document (Membership enrollment form) was a false or fabricated document. It is submitted that in the application for adjournment filed by respondent No. 1 dated 14.2.05 before the Speaker, it was stated therein that respondent No. 1 was desirous to rely upon and produce some more document in support of his petition which included the Membership Form signed by the petitioner. It was also stated by respondent No. 1 that he would require some time to produce the said document as respondent No. 1 was trying to locate the original of the same. On 15.2.2005, respondent No. 1 produced the membership form vide his application dated 15.2.05. It is contended that the reply filed by the petition to the application of respondent No. 1 for production of the said document indicates that the original document was very much produced on record of the proceedings and the petitioner has nowhere mentioned that the document produced was a Photostat copy or that the original document was not produced, except that the petitioner has denied his signature on the document. It is contended that on 16.2.05, the inspection of the original of the said document was offered to the petitioner. However, the petitioner objected to such inspection which is evident from the Roznama dated 16.2.05. It is submitted by Mr. Aney, the learned Senior Counsel that the petitioner at no point of time during the proceedings before the Speaker, stated that the said document produced is not the original document, but his only case was that the signature appearing thereon is not of his. The Speaker in the impugned order has stated that the petitioner did not even make the application for Impounding the document produced by the respondent No. 1. It is submitted that in view of the above referred facts, it is clear that the original of membership form signed by the petitioner on 16.11.2002 was produced before the Speaker. The petitioner, at no point of time disputed the fact that such original was produced and the only objection of the petitioner was that the same was produced at the belated stage and secondly, it was not signed by the petitioner. The argument of the petitioner that the original of the document was not produced on record is, therefore, contrary to the record itself and cannot be accepted.

38. Mr. Aney, the learned Senior Counsel further contended that notices were issued to the parties by the Speaker asking them to personally remain present for examination on 17.02.2005 at 5.00 p.m. (which was later on adjourned to 18.2.2005 at 4.00 p.m. by the Advocate for the petitioner and thereafter to 19.2.2005 at 12.00 noon) as regards the BJP Membership Form alleged to have been signed by the petitioner. On 19.2.05, the Speaker examined the parties in person with regard to the alleged signature of the petitioner on the Membership Enrollment Form. The Speaker also gave inspection of all the three documents, including the document dated 16.11.02 i.e. the Primary Membership Form of BJP. During the Course of examination by the Speaker, respondent No. 1 produced an affidavit of Satish Dhond dated 17.2.2005, wherein it is stated that he had enrolled the petitioner as Member of BJP on 16.11.02 and the membership form of the petitioner was filled in by Mr. Dhond after which the petitioner signed the said document before him. The petitioner, by application dated 19.2.05 objected to the filing of the affidavit of Mr. Dhond only on the ground that it is produced at a belated stage.

39. Mr. Aney, the learned Senior Counsel has further stated that the contents of the said affidavit of Mr. Dhond were neither controverted by filing any affidavit by the petitioner nor did he request for summoning Mr. Dhond for cross examination, except the application dated 10.2.2005 objecting to the production of the said affidavit of Mr. Dhond at the belated stage and merely denied in the said application that the said affidavit of Mr. Dhond is false. On 22.2.05, the Speaker inquired from respondent No. 1 as to whether he had any corroborative or contemporaneous document in support of his plea that the petitioner has joined the BJP independent of the plea and the allegations that the petitioner had signed the primary membership form since the petitioner was denying the said membership form document and had submitted in the reply that adverse inference be drawn against the respondent No. 1 for suppressing the membership roll and, therefore, the membership roll of Velim Constituency was produced by respondent No. 1 during the course of hearing. The production of the said document was also objected to by the petitioner by filing an application dated 22.2.05. In the said membership roil, name of Valentino Rebello as a member of BJP from Booth No. 2 is mentioned. Similarly, under serial No. 1 at page 277 of the said roll, the name of the petitioner is enrolled as member of BJP from Booth No. 25. This enrollment of the petitioner shows that his membership form number is '21989'. It also shows that the said membership form is from Book No. 880 and the date of membership is 16.11.02. Mr. Aney, the learned Senior Counsel has contended that it is not possible to fabricate such a document within a period of half an hour or so showing the names of so many persons as members of BJP along with their other details. The petitioner has never raised a case about the impossibility of enrolling hundreds of members in a short interval. The petitioner did not lead any evidence nor examined or cross examined any witnesses or the deponent to prove that the Membership Enrollment Form was fabricated or that the Membership List was bogus. The Speaker was acting in judicial capacity and was justified in permitting the additional documents.

40. Mr. Aney, the learned Senior Counsel contended that in view of the above referred facts and circumstances, the allegations of the petitioner regarding mala fides and bias on the part of the Speaker are baseless and that the Speaker acted judicially while discharging his constitutional obligation.

41. Mr. Aney, the learned Senior Counsel for the petitioner has submitted that in any case, unless the conduct of the Speaker is found to be so abhorrent or perverse that any person of reasonable prudence would hold it so, this Court may not interfere in the impugned order. The Wednesbury unreasonableness principle is not at all attracted to the impugned decision of the Speaker. The impugned order is plausible and would be a possible view based on facts and, therefore, this Court may not interfere with the same.

42. Mr. Aney, the learned Senior Counsel for the petitioner contended that the question of applicability of the Indian Evidence Act in respect of the disqualification proceedings before the Speaker has been considered by this Court in a common Judgment dated May 14, 1993 passed in Writ petitions No. 321/1990 & 48/1991. The Division Bench, in paragraph 26 of the said Judgment has held that the Evidence Act is not applicable to Tribunals or to quasi-judicial bodies required to decide and adjudicate upon rights. A Tribunal is governed by a statute and the procedures established, if any, and otherwise by what are called rules of natural justice. The Division Bench of this Court in Narsingrao G. Patil and others (supra) has turned down the contention of the petitioner about the applicability of the Evidence Act to the disqualification proceedings before the Speaker and further expressed that the degree of proof required under the Evidence Act does not ipso facto apply in the disqualification proceedings before the Speaker as the Speaker functions as a Tribunal and not as the Court. The Division Bench in the said case also considered the decision of another Division Bench of this Court in the case of Ravi Naik (supra) wherein it is held that the Evidence Act is not strictly applicable to the Tribunals which are required to decide and adjudicate upon the rights and the said view of the Division Bench was affirmed by the Supreme Court. The law laid down in these decisions clearly demonstrate that the Evidence Act is not strictly applicable to the proceedings before the Speaker though he functions as Tribunal and, therefore, the contention canvassed by the learned Senior Counsel for the petitioner that the documents filed before the Speaker by the respondent No. 1 were not admissible as per the Evidence Act and could not have been relied upon by the Speaker, is not sustainable in law in view of the law laid down in the above referred Judgments.

43. We have given our anxious thought to the various contentions canvassed by the respective Senior Counsel for the parties, the Judgments of the Apex Court and that of the High Court cited and relied upon by the parties and the documents referred to and relied on including the affidavits, rejoinders and sur-rejoinder filed by the parties. Before we consider the validity of the order of the Speaker which is impugned in the writ petition, it will be appropriate, at the outset, to consider the power of judicial review and the extent thereof. It is no doubt true that this issue has been already considered and concluded by the Apex Court as well as this High Court. However, We feel it necessary to refer to those Judgments and the observations made therein. The Apex Court in the case of Kihoto Hollohan (supra), in paragraph 111 has observed thus :

111. In the result, we hold on contentions (E) and (F) :

That the Tenth Schedule does not, in providing for an additional grant (sic ground) for disqualification and for adjudication of disputed disqualifications, seek to create a non-justiciable constitutional area. The power to resolve such disputes vested in the Speaker or Chairman is a judicial power.

That Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the Speakers/Chairmen is valid. But the concept of statutory finality embodied in Paragraph 6(1) does not detract from or abrogate judicial review under Articles 136, 226 and 227 of the Constitution insofar as infirmities based on violations of constitutional, mandates, mala fides, non compliance with Rules of Natural Justice and perversity, are concerned.

That the deeming provision in Paragraph 6 (2) of the Tenth Schedule attracts an immunity analogous to that in Article 122(1) and 212(1) of the Constitution as understood and explained in Keshav Singh case to protect the validity of proceedings from mere irregularities of procedure. The deeming provision, having regard to the words 'be deemed to be proceedings in Parliament' or proceedings in the legislature of a State' confines the scope of the fiction accordingly.

The Speakers/Chairmen while exercising powers and discharging functions under the Tenth Schedule act as Tribunal adjudicating rights and obligations under the Tenth Schedule and their decisions in that capacity are amenable to judicial review.

The law laid down by the Apex Court in the case of Kihoto Hollohan (supra), makes it implicitly clear that the power which the Speaker exercises while adjudicating upon the issues in the disqualification petition is a judicial power and the Speaker acts as a Tribunal. Similarly, the statutory finality embodied in paragraph 6(1) of the Tenth Schedule does not take away the power of judicial review of the order passed by the Honourable Speaker under paragraph 6(1). However, this Court can exercise such power of judicial review only in cases of violation of constitutional mandate, as well as principles of natural justice and mala fides and a perversity. It is also evident that the order passed by the Speaker cannot be interfered with only on the ground of procedural irregularities. The law laid down by the Courts clearly demonstrates that the power to decide the dispute in disqualification petition exercised by the Speaker under Paragraph 6 (1) of the Tenth Schedule is mainly of judicial complexion and attracts an immunity from the Court except where the order of the Speaker is in violation of constitutional mandate, malafides, non compliance with the rules of natural justice and perverse.

44. The Apex Court, in the case of Ravi Naik (supra) has made the following observation in paragraph 18 of the Judgment :

The Disqualification Rules have been framed to regulate the procedure that is to be followed by the Speaker for exercising the power conferred on him under sub-paragraph (1) of paragraph 6 of the Tenth Schedule to the Constitution. The Disqualification Rules are, therefore, procedural in nature and any violation of the same would amount to an irregularity in procedure which is immune from judicial scrutiny in view of sub-paragraph (2) of paragraph 6 as construed by this Court in Kihoto Hollohan case. Moreover, the field of judicial review in respect of the order passed by the Speaker under sub-paragraph (1) of paragraph 6 as construed by this Court in Kihoto Hollohan case is confined to breaches of the constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity. We are unable to uphold the contention of Shri Sen that the violation of the Disqualification Rules amounts to violation of constitutional mandates. By doing so we would be elevating the rules to the status of the provisions of the Constitution which is impermissible. Since the Disqualification Rules have been framed by the Speaker in exercise of the power conferred under paragraph 8 of the Tenth Schedule they have a status subordinate to the Constitution and cannot be equated with the provisions of the Constitution. They cannot, therefore, be regarded as constitutional mandates and any violation of the Disqualification Rules does not afford a ground for judicial reviews of the order of the Speaker in view of the finality clause contained in sub-paragraph (1) of paragraph 6 of the Tenth Schedule as construed by this Court in Kihoto Hollohan case.

45. The law laid down by the Supreme Court in Ravi Naik's case once again makes it clear that the power of judicial review of this Court in respect of the order passed by the Speaker is restricted only to the breaches of the constitutional mandates, mala fides, non-compliance with the rules of natural justice and perversity. The Disqualification Rules framed by the Speaker under Paragraph 8 of the Tenth Schedule are procedural in nature. Any violation thereof is a procedural irregularity and does not afford a ground for judicial review.

46. The Supreme Court in the case of Dr. Mahachandra Prasad Singh v. Chairman, Bihar Legislative Council and Ors. : AIR2005SC69 , after taking into consideration the law laid down by the Apex Court, particularly the observations made by the Apex Court in paragraph 111 in case of Kihoto Hollohan (supra), has observed in paragraph 8.1, thus :

This authoritative pronouncement clearly lays down that the decision of the Chairman or the Speaker of the House can be challenged on very limited grounds, namely, violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity and farther a mere irregularity in procedure can have no bearing on the decision.

The Supreme Court in the case of Dr. Mahachandra Prasad Singh (supra) has followed and reiterated the same principle laid down by the Apex Court in the case of Kihoto Hollohan and observed that the power of judicial review and the extent thereof enjoyed by this Court in respect of the order passed by the Speaker in the disqualification proceedings in exercise of power under paragraph 6 (1) of the Tenth Schedule, is limited and indulgence is permissible only on the ground of breach of constitutional mandate, mala fides, non-compliance with the rules of natural justice and perversity.

In our view, in the backdrop of the above referred decisions of the Apex Court, the power of judicial review and its extent stands concluded by the law laid down by the Apex Court in these decisions, which makes it implicitly clear that such power can only be exercised in case of violation of constitutional mandate, mala fides, non-compliance with the rules of natural justice and perversity.

47. In the instant case, the Speaker in exercise of power conferred on him under Paragraph 8 of the Tenth Schedule to the Constitution of India, read with Section 14A of the Government of Union Territories Act, 1963 (Central Act 20 of 1963) has framed the Rules, namely the Members of the Goa Legislative Assembly (Disqualification on Ground of Defection) Rules 1986. Paragraph 8 of the Tenth Schedule gives power to the Speaker to make Rules for giving effect to the provisions of the Tenth Schedule and it is also mentioned in paragraph 8(1) of the Tenth Schedule that such rules may provides for - (a) the maintenance of registers or other records as to the political parties if any, to which different, members of the House belong; (b) the report which the leader of a legislature party in relation to a member of a House shall furnish with regard to any condonation of the nature referred to in Clause (b) of sub-paragraph (1) of paragraph 2 in respect of such member, the time within which and the authority to whom such report shall be furnished; (c) the reports which a political party shall furnish with regard to admission to such political party of any members of the House and the officer of the House to whom such reports shall be furnished; and (d) the procedure for deciding any question referred to in sub-paragraph (1) of paragraph 6 including the procedure for any inquiry which may be made for the purpose of deciding such question. The scheme provided in paragraph 8 of the Tenth Schedule is twofold. It gives power to the Speaker to make rules and it also provides the nature of rules to be framed by the Speaker in order to implement the mandate of Tenth Schedule. Rules 3, 4 and 5 of the Disqualification Rules are in relation to the information to be furnished by the leader of the legislature party, the information necessary to be furnished by the Member and the register of information as to members. These rules are, therefore, framed under the provisions of Paragraph 8(1) of the Tenth Schedule to give effect to the provisions the Tenth Schedule and stand on slightly different footing than the Rules 6 and 7 which are purely procedural in nature. Rules 6 contemplates that no reference of any question as to whether a member has become subject to disqualification under the Tenth Schedule shall be made except by a petition in relation to such member made in accordance with the provisions of this rule. Sub-rules (2), (3), (4), (5), (6) and (7) of Rule 6 deal with the nature of disqualification petition, to whom it should be addressed, the procedure required to be undertaken by the Secretary after receipt of such petition, the documents which are required to be filed along with the petition, etc. Similarly, Rule 7 prescribes the procedure to be adopted by the Speaker on receipt of the disqualification petition under Rule 6. It is, therefore, evident that Rules 6 and 7 are purely procedural rules. Whereas, Rules 3, 4 and 5 though part and parcel of the Disqualification Rules, 1986, however have a different object to be achieved than the mere procedure required to be followed by the Speaker in the disqualification proceedings and therefore, though procedural in nature however have a different complexion. We are quite aware that breach of these rules cannot be a ground for judicial review. However, we are considering this aspect from the different perspective.

48. The Apex Court, in the case of Mayawati v. Markandeya Chand and Ors. (supra), Thomas, J, in paragraph 24 has observed thus :

We will not say that the rules of procedure are on a par with the constitutional mandate incorporated in the Tenth Schedule of the Constitution. Nonetheless, the procedures prescribed in the Disqualification Rules are meant to be followed for the purpose for which they are made. It is by virtue of the authority conferred by the Tenth Schedule that the Disqualification Rules are formulated 'for giving effect to the provisions of this Schedule'. What would have happened if the Rules had not been formulated as enjoined by Para 8 of the Tenth Schedule ?. The provisions of the Tenth Schedule would remain ineffective. So the Rules cannot be read in Isolation from the provisions of the Tenth Schedule, instead, they must read as part of it. Of course, mere violation of a rule is not enough to constitute violation of the provisions of the Tenth Schedule. When a certain procedure is required by the Rules to be adopted for giving effect to the provisions of the Constitution, the non-adoption of the procedure cannot be sidelined altogether as a mere procedure and of no consequence. Compliance or non-compliance with the rules of procedure would very much help the authorities to decide whether there was violation of the constitutional provision envisaged in the Tenth Schedule.

In the instant case, we are faced with altogether a different situation such as what is the effect if the Disqualification Rules are compiled with as per the procedure prescribed therein and whether the information furnished as per the procedure stipulated in such rules and is available on record, is of no consequence or it has some relevance with the issue of disqualification proceedings. There is no dispute that though these rules are framed to give effect to the constitutional mandate of the Tenth Schedule and, therefore, they do not enjoy the status at par with the provisions of the Constitution. Hence, any breach thereof is no ground for judicial review. However, if they are complied with and if the information which is required to be furnished as per the procedure prescribed under such rules, particularly Rules 3, 4 and 5 of the Disqualification Rules is furnished, such information, in our view, at least, prima facie, be presumed to be true till such presumption is rebutted. Looking to the object for which these Rules are framed by the Speaker, its importance cannot be casually ignored or brushed aside. We are also aware that mere entries or information furnished under the Rules do not conclusively decide whether the Member of the House has incurred disqualification, when there is other cogent evidence to show otherwise. However, these entries made in the record as per the procedure prescribed under the Rules, in our view, at least can be treated to have prima facie presumptive value till the contrary is proved.

In the instant case, the petitioner after being elected as an independent MLA from Velim Constituency May, 2002 and after becoming the Member of the House, furnished the information as required under Rule 4 by submitting the prescribed form wherein he is shown to be an independent MLA. In the event of change of the status of the Members, the Secretary (Legislature) has to issue bulletins periodically under the relevant Disqualification Rules showing the current status of the Members of the House. The bulletin supersedes all other earlier bulletins and, therefore, the latest bulletin will be the most authentic which demonstrates the current status of the Members of the House. In the instant case, the Secretary (Legislature) issued the bulletin dated 21.12.2004 wherein the petitioner is shown as an independent MLA. Similarly, in case of increase or decrease in the strength of the legislature party, leader of the legislature party, under the Rules, is required to inform about such change. However, no such information was furnished at any point of time by the leader of the BJP legislature party. If the petitioner has joined the BJP in October, 2002, after his election as an independent MLA, in that case, the strength of the BJP legislature party must have gone up by one Member and, therefore, they were required to communicate this change in the strength under the Rules. However, no information in this regard was ever furnished by the leader of the BJP legislature party. We are once again reiterating that the breach of procedure prescribed under the Rules being mere procedural irregularity and not legal infirmity, is not the ground for judicial review of the order of the Speaker. However, when the procedure prescribed under the Rules is complied with and the information furnished is available on record, in such situation the said information or the entry made therein if ignored and brushed aside without justification or legitimate reasons, at least at the time of passing of the interim order in a disqualification petition by the Speaker, this aspect, coupled with the attending facts and circumstances in a given case can provide legitimate foundation to hold that the interim order is passed by the Speaker for extraneous considerations unless the other evidence available before the Speaker is substantial, cogent and is sufficient, prima facie, to hold that the Member of the House has incurred disqualification.

49. The contention of the learned Senior Counsel for the petitioner that the purported requirement of Clause 2(1)(a) of the Tenth Schedule is completely different and distinct than the requirement of paragraph 2(2) of the Tenth Schedule and the decisions of the Supreme Court in the case of Kihoto Hollohan (supra) and the case of Narsingrao G. Patil (supra) are in respect of paragraph 2(1)(a) of the Tenth Schedule, and, therefore, do not have any bearing in respect the controversy in issue which pertains to disqualification, if any, incurred by the petitioner under Clause 2(2) of the Tenth Schedule is concerned, following are our reasons for not accepting this proposition.

50. In order to appreciate this contention, we need to consider the mandate of the constitution under the Tenth Schedule and the object it has to achieve. The mandate is that the Member of the House, if has incurred the disqualification, must be disqualified to be continued to be the Member of the House and in order to achieve this mandate, the contingencies are provided in Clauses 2(1) (a) and 2(2) of the Tenth Schedule to show as to when the Member of the House can said to have incurred the disqualification.

It is no doubt true that the evidence necessary to prove that the Member of the House has voluntarily given up his membership of a political party who has incurred disqualification contemplated under Clause 2(1)(a) is different than in case of a Member who is elected otherwise than as a candidate set up by any political party has joined any political party. Similarly, the nature of proof required in these two clauses is different. However, the objective to be achieved by the scheme of both these clauses is one and the same that is to disqualify such Member who has incurred disqualification as per the contingencies mentioned in these respective clauses. The observations made in paragraph 13 by the Apex Court in case of Kihoto Hollohan (supra) read thus :

These provisions in the Tenth Schedule give recognition to the role of political parties in the political process. A political party goes before the electorate with a particular programme and it sets up candidates at the election on the basis of such programme. A person who gets elected as a candidate set up by a political party is so elected on the basis of the programme of that political party. The provisions of Paragraph 2(1)(a) proceed on the premise that political propriety and morality demand that if such a person, after the election, changes his affiliation and leaves the political party which had set him up as a candidate at the election, then he should give up his membership of the legislature and to go back before the electorate. The same yardstick is applied to a person who is elected as an independent candidate and wishes to join a political party after the election.

In view of the above referred observations of the Apex Court and the findings recorded by us on the basis thereof referred to herein above, the contention of Mr. Kakodkar, the learned Counsel for the petitioner that the law laid down by the Judgments of the Apex Court and this Court is in respect of Clause 2(1)(a) of the Tenth Schedule has no application in so far as Clause 2(2) of the Tenth Schedule is concerned, is misconceived and cannot be accepted.

51. Now we will consider what was the material available before the Speaker till passing of the impugned order.

(a) The affidavit of Shri Rajendra Ganu dated 1.2.2005 was submitted along with the disqualification petition as well as the list of documents which includes documents at serial Nos. 1, 2, 3 and copies of the documents at serial Nos. 1, 2 and 3 were produced on record on 2.2.05 at 10 a.m. and the document at serial No. 4 at 12 noon on 2.2.2005.

(b) On 2.2.05, at 10 a.m., the petitioner filed an application before the Speaker for adjournment for 15 days. The petitioner was granted adjournment by the Speaker till 12 noon of 2.2.05. At 12 noon, the petitioner again filed an application for adjournment before the Speaker which was rejected. The request for adjournment was not granted by the Speaker and the interim order was passed by the Speaker on 2.2.05 after taking into consideration the averments made in the disqualification petition as well as the documents at serial Nos. 1, 2, 3 and 4 and expressed that the photographs produced on record and the issue of 'Gomant Shakti' along with other material clearly show at least prima facie that the petitioner has joined BJP after his elections and granted ad interim relief to respondent No. 1 in terms of payer Clause (b) of the petition, restraining the petitioner from voting or taking part in the proceedings of the House during the pendency and final disposal of the petition.

(c) On 2.2.05, the motion of confidence was moved by Mr. Parrikar, the then Chief Minister in the House after 4.30 p.m. The petitioner was present in the House. At 4.30 p.m., the Speaker called both the parties in his Chamber. Respondent No. 1 was present in person. The petitioner did not. attend the Chamber of the Speaker. The House had reassembled after the recess on 2.2.05. The petitioner was in the House and was taken out of the House by the Marshall of the House under orders of the Speaker issued under Rule 289 of the Rules of Procedure. On 4.2.2005, reply filed by the petitioner to the disqualification petition filed by respondent No. 1. On 7.2.05, the petitioner moved an application for certified copy of the interim order passed by the Speaker dated 2.2.05. On 11.2.05, respondent No. 1 filed his rejoinder and the petitioner filed an application for seeking permission to file sur-rejoinder. On 14.2.2005, the petitioner filed his sur-rejoinder and respondent No. 1 filed an application for adjournment expressing his desire to produce more document on record. The request was objected to by the petitioner on 15.2.2005. Respondent No. 1 filed application to produce additional documents, namely (a) primary membership form alleged to have been signed by the petitioner on 16.11.2002, enrolling himself as primary member of BJP; (b) Form No. 1 and Form No. III, both dated 23.10.2002. On 16.2.05, the petitioner filed his reply to the application of respondent No. 1 dated 15.2.2005 objecting to the production of such documents i.e. primary membership form alleged to have been signed by the petitioner, as well as Form No. I and Form No. III Roznama dated 19.2.2005, reads thus :

The petitioner present along with his Advocate Thali. The respondent present along with his Advocate Shri Sonak.

The respondent answered all the questions put by this Court for clarification of document thereafter. The petitioner also answered all the questions put by this Court. The petitioner filed one affidavit. Same is objected to by the Advocate for the petitioner and filed his say on the same. I have given the inspection of all 3 original documents i.e. document No. 1, document No. 2 and the document dated 16.11.2002 i.e. the enrollment form of BJP. Since want of time I adjourn the hearing on Monday at 12 noon.

The Roznama dated 22.2.205 shows that the matter was closed for orders by the Speaker and on 28.2.05, the Speaker passed the impugned Order, whereby it is held that the petitioner, an elected member of the House (independent), has become subject to disqualification under Clause 2, Paragraph 2 of the Tenth Schedule and declared the petitioner disqualified for being a member of the House.

52. Now the main question we propose to deal with is whether the conclusion arrived at and the findings recorded by the Speaker, on the basis of these material, are in violation of the constitutional mandate, inconsistent with the rules of natural justice, irrational and perverse. It is well settled that a conclusion is said to be perverse if it is such that no reasonable person, duly instructed could upon the record before him have reasonably come to it. In deciding a question whether an order or a decision of an authority based on finding of fact is a decision or order which can be characterised as 'perverse' and the conclusion recorded when can be termed as totally irrational, can be seen from the principle enunciated by Lord Greene M. R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, which reads thus :

It must always be remembered that the Court is not a court of appeal. The law recognises certain principles on which the discretion must be exercised, but within the four corners of those principles the discretion is an absolute one and cannot be questioned in any court of law.... The exercise of such a discretion must be a real exercise of the discretion... Bad faith, dishonest - those, of course stand by themselves - unreasonableness, attention given to extraneous circumstances, disregard to public policy and things like that have all been referred to as being matters which are relevant for reconsideration.... It is true that the discretion must be exercised reasonably. What does that mean Lawyers familiar with the phraseology commonly used in relation to the exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense. It is frequently used as a general description of things that must not be done. For instance, a person entrusted with the discretion must direct himself properly in law. He must call his own attention to the matter which he is bound to consider. He must exclude from his consideration matters which are irrelevant to that matter that he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably. Similarly, you may have something so absurd that no sensible person could even dream that it lay within the powers of the authority. Warrington L.J., I think, it was he who gave the example of the red-haired teacher dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it . might almost be described as being done in bad faith. In fact, all those things largely fall under one head.

Wednesbury's principle of 'unreasonableness' takes into its ambit all facts and circumstances if found present in the order passed by a Court or a Tribunal would render such order, not only irrational, but also perverse.

53. In Tata Cellular of India v. Union of India (1994) 6 SCC 651, the Supreme Court mentioned two facets of irrationality other than the irrationality of the Wednesbury principle, those are : (1) It is open to the court to review the decision maker's evaluation of the facts. The court will intervene where the facts taken as a whole could not logically warrant the conclusion of the decision-maker. If the weight of the facts pointing to one course of action is overwhelming, then a decision the other way, cannot be upheld; (2) A decision would be regarded reasonable if it is partial and unequal as between different classes. In paragraph 50 of the impugned Order, the following observations are made by the Speaker :

The entire petition is based upon the following :

(a) That the respondent on 16.11.2002 collected 40 membership books from Serial Nos. 3681 to 3720 from the BJP office and on 07.12.2002 the respondent returned 28 membership books duly filled in by the primary members enrolled by him and deposited an amount of Rs. 3,500/- (i.e. w.r.t. 700 members) with the BJP office incharge;

(b) There is a statement at para 6 of the petition that primary members can be enrolled only by those persons who are themselves members of the BJP.

(c) That in view of the aforesaid, it is urged that an inference be drawn that the respondent joined the BJP in October, 2002.

The disqualification petition was filed by respondent No. 1 on 1.2.2005 along with the list of documents and the documents mentioned in the list were produced by respondent No. 1 at the time of healing on the issue of grant of interim order on 2.2.05 at 10 a.m. The cause of action for filing the disqualification petition whereby the petitioner has incurred disqualification arose sometime in the month of October, 2002 when the petitioner is alleged to have become the member of the BJP. In view of these facts, it is evident that except the bare allegation in the petition referred to hereinabove against the Petitioner, none of the documents mentioned in the list of documents were filed along with the petition and were produced on record only on the date when the interim order was passed by the Speaker on 2.2.05. These facts farther demonstrate that even the Speaker for the first time had seen those documents produced by respondent No. 1 mentioned in the list of documents only at the time of passing of the interim order on 2.2.05. It is not doubt true that the Speaker being a Tribunal has a discretion to pass an interim order in an exceptional situation only if there is an overwhelming, cogent and substantial evidence available on record. Such discretion must not be based on extraneous circumstances and the interim order, if any, passed by the Speaker should not be in breach of rules of natural justice. Looking to the cause of action for filing the disqualification petition which arose way back in October, 2002, there was no urgency as such to consider the plea of grant of interim relief on 2.2.05 without even giving breathing time to the petitioner to file reply to the disqualification petition. It is no doubt true that in a given case if it is otherwise expedient and necessary, the Speaker has discretion to pass an order without loss of time. However, if the urgency was only to prevent the petitioner from taking part in the vote of confidence tabled by Shri Parrikar, which was scheduled on 2.2.05, in that event, the discretion exercised by the Speaker can be said to be the one based on extraneous circumstances other than legal. Even if it is presumed that the Speaker's Office had made attempts to serve the copy of the disqualification on the petitioner in the morning on 2.2.05, however, the fact remains that the petitioner was not personally served with the copy of the petition till 10 a.m. on 2.2.05 when the matter was listed for passing the interim order. The petitioner/ his Lawyer though prayed for time to file reply at 10 a.m. on 2.2.05, the Speaker did not grant even breathing time to file reply and closed the matter at 12 noon for passing the interim order. It is no doubt true that the information was received by the petitioner in view of the notice dated 2.2.05 published in the local newspaper that the disqualification petition was filed against him and was fixed for hearing on 2.2.05 at 10 a.m. and he was called upon to appear for hearing in person and/or through his Layer. However, pursuant to the said notice, when the petitioner/his Lawyer appeared before the Speaker at 10 a.m. on 2.2.05 was completely unaware about the allegations made against the petitioner in the disqualification petition as well as the material, if any, relied upon by the respondent No. 1 to substantiate the allegations made in the disqualification petition. In the backdrop of the above referred facts, let us consider the material which was before the Speaker at the time of passing of the interim order on 2.2.05. Except the disqualification petition, the photograph in 'Gomantshakti', collection and issuance of membership roll, membership enrollment book, no other material was placed on record at that time by the respondent No. 1 before the Speaker. As against that, the record showing valid entries made therein as per the procedure prescribed under the Disqualification Rules were available on record showed that the petitioner was an independent MLA. Similarly, the bulletin issued by the Secretary (Legislature) dated 21.12.2002 also demonstrated that the petitioner was an independent MLA. The Speaker did not grant even breathing time to the petitioner to file reply to the disqualification petition and passed the interim Order which, in our view, is completely inconsistent with the rules of natural justice. At the same time, we cannot close our eyes to the fact that the Speaker has completely ignored the entries made under the Disqualification Rules for apparent reasons and in an extreme hurry at 12 noon closed the matter on 2.2.05, for passing the interim order which was passed just before vote of confidence whereby the petitioner was prohibited from voting and participating in the proceeding of the House. We cannot turn the Nelson's eye to the fact that the petitioner at the relevant time had already withdrawn his support to Manohar Parrikar Government (BJP) and the Governor had asked Mr. Parrikar to take vote of confidence which was scheduled after 4.30 p.m. on 2.2.05. Since the petitioner had already extended his support to the Congress (INC), there was urgent need to prohibit the petitioner from participating and voting in the proceeding of the House and, therefore, the interim order was passed by the Speaker on 2.2.05 which, in our view, is not only completely inconsistent with the rules of natural justice, but the same is passed with oblique motive which is writ large on the face of it. The petitioner was given only two hours' time to file his reply in such serious proceedings where his constitutional rights as an elected Member of the House were to be taken away. If the order results in civil and penal consequences, rules of natural justice require, before passing such order, reasonable opportunity must be given to the other side. In the instant case, two hours' time which was given by the Speaker to file reply, in our view, cannot even remotely be considered to be reasonable. On the other hand, it is wholly unreasonable and the interim order is, therefore, passed in patent violation of the principles of natural justice and hurry in which it is passed shows the oblique motive which renders the interim order mala fide.

54. So far as applicability of the Evidence Act to the proceedings before the Speaker is concerned, the issue in this regard is considered by this Court in the case in Writ Petition No. 321/1991 and in paragraph 26 of the Judgment, this Court has observed that it is well settled by now that the Evidence Act is not applicable to Tribunals or to quasi-judicial bodies which are required to decide and adjudicate upon rights. The Tribunal is governed by a statute and the procedures established, if any, and otherwise by what are called rules of natural justice. Similarly, this Court in the case of Narsingrao G. Patil and ors. (supra), has expressed similar view and the relevant observations in paragraph 63 are thus : . However, strictly speaking, the degree of proof required under the Indian Evidence Act does not ipso facto apply in the disqualification proceedings before the Speaker as the Speaker functions as a Tribunal and not as a the Court.

In view of the above referred legal position, it is evident that the provisions of the Indian Evidence Act in the strict sense do not apply in disqualification proceedings before the Speaker. However, the Tribunals are required to act on material which is logically probative evidence, not wholly hearsay and can fairly be regarded a reliable. The contention of Mr. Kakodkar, the learned Senior Counsel for the petitioner that the Speaker is required to conduct the proceedings strictly according to the provisions of the Evidence Act being misconceived, cannot be accepted.

55. In the instant case, the objections raised by the petitioner in regard to the production of documents at the belated stage, admissibility of these documents in evidence without their being original documents on record, do not vitiate the order of the Speaker. However, the judicial requirement is that the reliance can be only placed on the evidence which is cogent, relevant, true and tangible. At the same time, it is impermissible to pass an order wholly on extraneous circumstances which, in our view, renders such order irrational and perverse. It is no doubt true that in what manner the disqualification proceedings are required to be conducted by the Speaker is a discretion of the Speaker though the procedure prescribed under the Disqualification Rules is relevant. However, conclusions recorded by the Speaker, must comply with the test of reasonableness, should not be irrational, perverse and also should not be in violation of principles of natural justice.

56. In the instant case, the respondent No. 1 filed an application before the Speaker seeking permission to produce the additional documents i.e. the primary membership form alleged to have been signed by the petitioner on 16.11.02, enrolling the petitioner as primary member of BJP and Forms Nos. I and III, wherein the names of the members of BJP legislature party are shown and the name of the petitioner is shown at serial No. 17 in Form No. I., Similarly, Form No. III is the declaration of the petitioner. Both these, Form No. I and Form No. III are dated 23.10.2000 and, therefore, they are not relevant for the purpose of issue of disqualification petition filed by the respondent No. 1, since in the subsequent Assembly Elections, which had taken place on 30th May, 2002, the petitioner contested the election as an independent candidate and was declared elected from Velim Constituency. The Speaker has also, therefore, not placed any reliance on Form. No. 1, and Form No. III while deciding the disqualification petition.

57. The case of the respondent No. 1 in the disqualification petition is that the petitioner was elected as Member of the House on 1.6.02 in the general election to the Goa Legislative Assembly which was held on 30th May, 2002. The petitioner contested the said election and was elected as an independent MLA from Velim Constituency. In October, 2002 the petitioner became the member of BJP and, therefore, has incurred disqualification to continue to be a Member of the House in view of Clause (2) of Paragraph 2 of the Tenth Schedule. In other words, it is the case of respondent No. 1 that the petitioner was elected other than as a candidate set up by any political party and after his election, has joined the BJP and, therefore, incurred disqualification to continue to be the Member of the House in view of Clause 2, Paragraph 2 of the Tenth Schedule to the Constitution of India. The conduct which is required for the purpose of incurring the disqualification under this clause is a conduct which must demonstrate that such elected member has joined any political party after his election. The Oxford Dictionary gives various meanings of the word 'to join' one of them is 'become a member of (an association, society, organisation)'. In the instant case, in order to show that the petitioner has incurred disqualification under Clause 2(2) of Tenth Schedule to the Constitution by joining the BJP, respondent No. 1 has mainly relied on the document i.e. the primary membership form alleged to have been signed by the petitioner on 16.11.2002 and, therefore, the finding recorded by the Speaker in respect of this document is very crucial and goes to the root of the issue in question.

58. In so far as the document i.e. the primary membership form of BJP alleged to have been signed by the petitioner is concerned, the following undisputed facts are relevant to consider this issue :

(a) There is absolutely no averment made in the disqualification petition that the petitioner had signed the primary membership form of BJP on 16.11.2002. On the other hand, the only totally vague averment made in the petitioner is that the petitioner, sometime in the month of October, 2002 became the member of BJP.

(b) The document of primary membership form was neither filed along with the disqualification petition by the respondent No. 1 on 1.2.05 nor there is any reference about this document in the list of documents submitted by respondent No. 1 along with the petition.

(c) The respondent No. 1 for the first time filed an application on 15.2.05 before the Speaker seeking permission to produce some more documents, such as primary membership form and Form No. I and Form No. III dated 23.10.02.

(d) On 16/2/05, the petitioner filed reply to the said application of respondent No. 1 dated 15.2.05 specifically objecting grant of permission to file the said two documents.

(e) Roznama of the proceedings dated 16/2/05 reads thus:

After furnishing the todays hearing the advocate for the petitioner offered inspection of the original of the document No. 1 of the application dated 15/2/2005 to the respondent, for which advocate for the respondent not agreed.

The advocate for the respondent filed the application objecting such inspection at this belated stage.

The contents of Roznama written by the Speaker make it evident that on 16.2.05, the Advocate for the respondent offered inspection of the original document No. 1 mentioned in the application dated 15.2.05 i.e. the primary membership form alleged to have been signed by the petitioner. However, the Roznama is completely silent in respect of the production of the original membership form on record by the respondent No. 1 on 16.2.05. The Roznama does not even mention that the original of the said membership form was even handed over to the Speaker on 16.2.05. The recitals in the Roznama dated 16/2/05 only demonstrate that the original of membership form was not produced on record of the Speaker, but was with the Advocate of respondent No. 1, who gave inspection of the said document to the petitioner/Lawyer of the petitioner. Roznama dated 16.2.02 further shows that the said document was not handed over to the Speaker by the Advocate for respondent No. 1 on 16.2.05 and was not even produced on record on that day.

(f) Similarly, the Roznama dated 19.02.05 reads thus :

The respondent answered all the questions put by this Court for clarification of document thereafter. The petitioner also answered all the questions put by this Court. The petitioner filed one affidavit. Same is objected to by the Advocate for the petitioner and filed his same on the same. I have given the inspection of all 3 original documents i.e. document No. 1, document No. 2 and the document dated 16.11.2002 i.e. the enrollment form of BJP. Since want of time I adjourn the hearing on Monday at 12 noon.The recitals in the Roznama though show that the Speaker had given inspection of the original document i.e. the primary membership form of BJP alleged to have been signed by the petitioner on 16.11.02, however, there is no any entry in any of the Roznamas either before 19.2.05 or in Roznama dated 19.2.05, as to when the original membership form of BJP either produced on record of the proceedings, by the respondent No. 1 or it was taken on record by the Speaker. So far as all other documents placed on record and the applications made by the parties in the disqualification proceedings, specific entries in Roznama were made by the Speaker, except in respect of the primary membership form of BJP alleged to have been signed by the petitioner on 16.11.02.

(g) Vide Application dated 16.2.05 filed by the petitioner before the Speaker objecting to grant of permission to the respondent No. 1 to file documents vide application dated 2.2.05, the petitioner has specifically denied and stated that the signature on the primary membership form is not his signature and it is a forgery committed by the respondent No. 1.

59. At this stage, it is relevant to make a reference to the affidavit filed by Sudhir Arjun Narvenkar, Secretary, Goa Legislative Assembly on behalf of respondent No. 2 wherein it is mentioned that the primary membership form dated 16.11.02 bearing No. 21989 was paged in green by him as page No. 217/C on 2.3.2005. However, as a matter of fact, on record there is only the xerox copy of the membership form and the original document is not available on record of the Speaker nor there is any mention in any of the Roznamas. At the cost of repetition, we want to mention here that in the disqualification petition filed by respondent No. 1 the vague averment made in paragraph 8 is that the petitioner sometime in the month of October, 2002 became the member of BJP. Whereas, the documentary evidence i.e. the primary membership form alleged to have been signed by the petitioner shows that the same was signed on 16.11.02, regarding which there is absolutely no reference in the disqualification petition.

60. In view of the above facts, it is evident that when the disqualification petition was filed by respondent No. 1 on 1.2.05, the document i.e. primary membership form of BJP, original or otherwise, was not produced by the respondent No. 1. On 14.2.05, when the application made by the respondent No. 1, the respondent No. 1 did not have the original of the primary membership of BJP alleged to have been signed by the petitioner and the respondent No. 1 sought for time to locate the original of the same. There is neither any entry in the Roznama, nor any noting in the record of the Speaker about the production of the original of primary membership form by the respondent No. 1 before 16.2.05 or on 19.2.2005. The Roznama dated 16.2.05 also does not mention that respondent No. 1 placed on record of the proceedings of the Speaker the original of the primary membership form. It only states that the inspection of the said document was offered to the petitioner and that too not by the Speaker but by the Advocate for respondent No. 1. Even after 16.2.05, there is no mention in any of the Roznamas of proceedings that the original document of membership was either produced by respondent No. 1 on record or was taken on record by the Speaker. Similarly, in the Roznama dated 19.2.2005, there is also no mention about production of the original of the primary membership form by respondent No. 1 nor about taking that document on recorded by the Speaker on that day. It is difficult to know as to how the Speaker came in possession of the said document when the record of the proceedings of disqualification does not show that the original of primary membership form was ever placed on record.

61. In the light of the above referred evidence available on record, regarding the primary membership form of BJP alleged to have been signed by the petitioner on 16.11.02 and about its production on record, the Speaker has himself held in paragraph 115 of the impugned Order that it was a controversial document, which reads thus :

The controversial document namely, the membership form of BJP alleged to have been signed by the respondent is liable to be examined and analysed in the backdrop of all these aforesaid facts, to which of course I will avert in the later part of this judgment.

Another finding recorded by the Speaker in this regard is in paragraph 124, which reads as thus :

Thus, on the basis of the pleadings of the parties and the entire material on record and independent of the controversial document namely, the membership form alleged to have been signed by the respondent on 16.11.2002, I am of the considered view that there is more than enough evidence to hold that a conclusive inference can be drawn from the express conduct of the respondent as also his association with the BJP that after his election on 01.06.2002, he had joined the BJP.

The Honourable Speaker finally concluded this issued by giving the following findings in paragraph 135 of the impugned order:

As I have already stated above, my finding on this controversial document would not at all affect my ultimate decision on this petition in as much as I have already concluded above, that the evidence discussed above shows that there is more than enough evidence available on record to show that the respondent by his express conduct had joined the BJP. In this view of the matter, I took upon myself the task of comparing the disputed signature of the respondent on the said membership form with his admitted signatures on record and after comparing the same, I do not have even the slightest doubt that the signature on the said membership form is that of the respondent.

62. The observations and the findings recorded by the Speaker in the above referred paragraphs 115, 124 and 135 of the impugned order clearly demonstrate that even the Speaker was of the definite view that the document i.e. the primary membership form alleged to have been signed by the petitioner on 16.2.2002 is a controversial document and the evidence on record other than the said document is more than enough to conclusively draw an inference that the petitioner had joined BJP after his election dated 1.6.2002. This finding recorded in paragraph 124 of the impugned Order, therefore, clearly shows that the Speaker has excluded the document i.e. the primary membership form of BJP from his consideration in order to conclude that the petitioner joined BJP after Ms election. Similarly, the Speaker in paragraph 135 of the impugned Order has reiterated that the controversial document would not affect his ultimate decision in the disqualification petition since there was other more than enough evidence available on record before him to show that the respondent No. 1 by the express conduct has joined the BJP.

63. The Speaker having once held that the document of primary membership form is a controversial document and he has excluded the same from his consideration in view of the other sufficient evidence to hold that the petitioner has joined BJP and without giving second thought, all of a sudden, the Speaker decided to rely on the said document and himself compared the disputed signature of the petitioner on the said form with his admitted signatures and recorded his finding only on the basis of such comparison made by him in paragraph 135 of the impugned order that the signature on the membership form was that of the petitioner, without considering any of the aspects such as existence or non-existence of the original of the primary membership form on record, who had produced this document, what is the date and time of production, whether there is any entry in this regard in the Roznama? Therefore, the finding of the Speaker that the signature on the primary membership form is that of the petitioner is wholly irrational and totally perverse. It is well settled that there are certain established and well recognized principles on which discretion vested in the Tribunal is required to be exercised while appreciating the evidence on record and if the appreciation of the evidence is wholly inconsistent with these recognized principles, the conclusion recorded on the basis of such perverse appreciation of the evidence undoubtedly is totally irrational and completely perverse. In the instant case, the Speaker has, in fact, recorded his finding that the primary membership form is a controversial document and he has, therefore, excluded it from his consideration. However, having been said so, in the same breath, the Speaker has recorded another finding that the disputed signature on the primary membership form of BJP is that of the petitioner, and placed reliance on this controversial document. The finding, therefore, is not only wholly irrational and totally unreasonable, but the same is perverse. The 'reasonableness' and 'irrationality' is an essential element of fair play and is, therefore, foundation for the orders which are sustainable in law. In the instant case, abrupt finding recorded by the Speaker ignoring this well recognized judicial principles, apart from being perverse and irrational, but the same is also in bad faith. Similarly, the affidavit of Satish Dhond was not filed along with the disqualification petition either on 1.2.05 or on 2.2.05 when the interim order was passed by the Speaker and for the first time, at a belated stage of the proceedings, was filed on record on 19.2.05. The affidavit is very cryptic, wherein it is mentioned that the membership form of the petitioner was filled in by him and, thereafter, the petitioner signed the said document before him in the BJP Office in Panaji. In the instant case, the Speaker having held that the membership form itself is a controversial document and, therefore, was excluded from consideration, the reliance placed on the affidavit of Satish Dhond by the Speaker and the findings recorded in this regard, in our view, are also perverse.

64. We have simply considered the material which was available before the Speaker in the form of evidence and whether a prudent and reasonable man in such a situation can come to a conclusion which has been recorded by the Speaker in respect of the primary membership form of BJP, in our view, no prudent man can conclude the issue as concluded by the Speaker.

65. Now we propose to consider the findings recorded by the Speaker in respect of another piece of evidence which was available before the Speaker in the form of membership roll of BJP of Velim constituency. So far as this issue is concerned, the following facts are not in dispute :

(i) There is no mention or averment in the disqualification petition filed by respondent No. 1 about this document. There is also no mention about this document in the list of documents filed by the respondent No. 1 along with the petition nor was filed on the record of the Speaker on 2.2.05 when the Speaker passed the interim order.

(ii) The Recitals in the Roznama 22.2.05 are relevant for this issue, which read thus :

During the course of argument I asked advocate for the petitioner to satisfy the adverse inference point raised by the respondent under 114(g) of Evidence Act and he is having any corroborative pleading, document, for which advocate for the petitioner produced one document i.e. roll of BJP membership. It is taken on record. Same is objected by the advocate for the respondent. The advocate for the petitioner also filed Ms say on the said objection.

Once again I asked specifically to both the parties whether they wish to produce any pleading/document/affidavit or arguments if any. The advocate for the respondent field his written submission, I also requested the advocate for the petitioner that if he wants to file his written submission he should submit by 23/02/2005.

Arguments of both the sides are concluded as they do not want to argue the matter further. Matter is fixed for decision. Parties to be communicated.

The recitals of the Roznama referred to here in above clearly demonstrate that neither the respondent No. 1 nor his Advocate has produced the document i.e. the Membership roll of Velim constituency before the Speaker before 22.2.05, nor they had any desire to do so. However, merely because the Honourable Speaker asked on 22.2.05 during the course of hearing of the matter as to whether respondent No. 1 was having any corroborative pleadings or documents, immediately, the Advocate for respondent No. 1 then and there produced the said document i.e. the Membership Roll of BJP of Velim constituency, though the production of the same was objected to by the Counsel for the petitioner.

66. The Roznama dated 22.2.05 is completely silent as to whether the original of the said membership roll of Velim constituency was produced by the Counsel for the respondent No. 1 before the Speaker on 22.2.05, nor there is anything in this regard anywhere in the record of the Speaker. The document which is on record of the Speaker is only the xerox copy of the membership roll wherein it is shown that the petitioner became the member on 16.11.2002. The findings recorded by the Speaker in this regard which are in paragraph 127 of the impugned order read thus :

First of all, in view of the decision of the Supreme Court reported in : (2004)IIILLJ760SC , it is not obligatory for a Court to draw an adverse inference wherever the provision like Section 114 of the Evidence Act uses the expression 'may presume', notwithstanding the intentional non-production. Secondly, in view of the dispute over the membership form alleged to have been signed by the respondent, I inquired from the petitioner as to whether he could produce any other contemporaneous evidence to show that respondent was enrolled as the member of BJP. In deference to the same, the petitioner produced the BJP membership roll of Velim Constituency to show that the respondent had enrolled himself as the member of BJP.

The above referred findings recorded by the Honourable Speaker demonstrate that the Speaker had accepted the fact that there was a dispute over the Membership form alleged to have been signed by the petitioner and, therefore, some other evidence was necessary to show that the petitioner was enrolled as primary member of BJP and, therefore, the Advocate for the respondent No. 1 was asked by the Speaker to produce other contemporaneous evidence to show that the petitioner was enrolled as Member of BJP. The findings of the Speaker further show that the moment the Speaker asked the Advocate for respondent No. 1 to produce some other evidence, the Advocate for respondent No. 1 without taking even breathing time, almost instantaneously produced the xerox copy of BJP Membership Roll of Velim constituency as if the whole thing was pre-planed and there is noting in the Roznama as well as the findings recorded by the Speaker in this regard to show that the original of the same was ever placed on record, either on 2.2.05 or at any time thereafter before the impugned order was passed.

67. The Speaker in paragraph 128 of the impugned order has observed that the petitioner has not denied the contents of the Roll, but only objected to the production of the Roll at a belated stage. This finding of the Speaker is also inconsistent with the notings in the Roznama dated 22.2.2005 which clearly demonstrates that when the Advocate for the respondent produced the Role of BJP Members, the Advocate for the petitioner had registered his objection in respect of the membership roll of BJP produced by the Advocate for respondent No. 1. The findings recorded by the Speaker in paragraph 128 of the impugned order further demonstrate that the Speaker considered the contents of the BJP Membership Roll of Velim Constituency produced by respondent No. 1 during the course of hearing and found that the name of the petitioner as member of BJP was at serial No. 1 of booth 25 and the number of the membership form as well as the name of the person enrolling, tallied with that of the membership form alleged to have been signed by the petitioner on 18.11.02. It is, therefore, evident that the Speaker has relied on the controversial document to find out the truthfulness of another document i.e. the membership roll. Thus, the finding recorded by the Speaker is not only inconsistent with his own findings, but the same is totally perverse. The Speaker having held that the primary membership form alleged to have been signed by the petitioner on 16.11.02 being a controversial document and was excluded from his consideration and it is in such situation the Advocate for respondent No. 1 on 22.2.05 was asked by the Speaker to produce other corroborative evidence to show that the petitioner had joined BJP and when such additional evidence is produced in the form of EJP Membership Roll of Velim Constituency by the Counsel for respondent No. 1 on 22.2.05 to consider the genuineness of the said document, the Honourable Speaker relied only on the contents of the controversial document i.e. the primary membership form alleged to have been signed by the petitioner. The document which was controversial and, therefore, was rightly excluded by the Speaker from his consideration is relied upon by the Speaker to decide the truthfulness of another document, is an approach which is completely in derogation and wholly inconsistent with the established principles of appreciation of evidence and, therefore, the same is wholly and completely perverse.

68. Now we propose to consider the findings recorded by the Speaker in respect of another documentary evidence which was available before the Speaker in the form of a membership enrollment book. It is the case of the respondent No. 1 in the disqualification petition that the petitioner collected 40 enrollment books for enrolling members of BJP on 16.11.02, signed the register of issuance of membership book to that effect and returned some books on 7.12.2002 to the BJP Office. It is further alleged by respondent No. 1 that the petitioner has not disputed the signature on the register dated 16.11.02 when he collected 40 books for enrolling the members of BJP. It is further the case of respondent No. 1 that the membership books were collected by the petitioner on 16.11.02 for handing over the same to another BJP member of Velim Constituency i.e. Valentino Rebello. It is pertinent to note that on 16.11.02, Valentino Rebello was not even a member of BJP and for the first time became the member of BJP on 19.11.2002. In view of the above referred facts, the Honourable Speaker in paragraph 104 has recorded his finding in this regard which reads thus :

It is his case that Velentino Rebello is a representative of BJP at Vellim who had been given the said books by him, and whatever books were given back by said Valentino were returned back to BJP office. If that is so the respondent could have at least filed the affidavit of the said Shri Valentino. The respondent also chose not to examine him. It is pertinent to note that in this regard the respondent has not even denied the affidavit of Shri Rajendra Ganu.

Though it is the case of respondent No. 1 that the petitioner enrolled as many as 700 members of BJP, however, surprisingly, not even a single enrollment form was produced on record by respondent No. 1 during the course of the hearing of the disqualification petition. In absence thereof, only on the basis of enrollment book, which only mentions the names of the persons enrolled, but does not show who had enrolled them, on the basis of this evidence to hold that it is the petitioner who has enrolled these members since he was asked to collect the enrollment book on 16.11.02 and who had handed over the same to Mr. Velentino Rebello on 19.11.02, is a finding which again in our view is totally perverse. The Speaker expected the petitioner to file an affidavit of Velentino Rebello to disprove the same, shows the irrational approach of the Speaker. In fact, it was for the respondent No. 1 to file on record the membership form. The record of membership forms was in the Office of BJP which would have demonstrated the truth whether the petitioner had enrolled anybody as BJP Member. In our view, merely because the petitioner collected Enrollment Book on 16.11.02 and handed over the same to Mr. Valentino Rebello on 19.11.02, particularly in view of the fact that at the relevant time the petitioner was not only supporting the coalition Government headed by BJP, but was also a Minister in the cabinet of Shri Parrikar, the then Chief Minister, the inference drawn and the finding recorded by the Speaker that this conduct of the petitioner is sufficient to infer that he joined BJP, is wholly irrational and perverse.

69. Lastly, it is the case of respondent No. 1 that the petitioner had attended the State BJP convention and was present on the dais and seconded the political solution of BJP. The photograph in this regard was published in 'Gomantshakti' issue, the question is by the said conduct of the petitioner, whether the inference could be drawn that the petitioner joined BJP Before we consider this issue, we propose to refer to the observations of the Apex Court in the case of Ravi Naik (supra) which are relied on by Mr. Aney the learned Senior Counsel. In paragraph 25 of the said Judgment, the Apex Court has observed thus :

As regards the reference to the newspapers in the impugned order passed by the Speaker it appears that the Speaker, in his order, has only referred to. the photographs as printed in the newspapers showing the appellants with Congress (I) MLAs and Dr. Barbosa, etc., when they had met the Governor with Dr. Wilfred D'Souza who had taken them to show that he had the support of 20 MLAs. The High Court has lightly pointed out that the Speaker, in referring to the photographs was drawing an inference about a fact which had not been denied by the appellants themselves, viz., that they had met the Governor along with Dr. Wilfred D'Souza and Dr. Barbosa on December 10, 1990 in the company of Congress (I) MLAs, etc. The talk between the Speaker and the Governor also refers to the same fact. In view of the absence of a denial by the appellants of the averment that they had met the Governor on December 10, 1990 accompanied by Dr. Barbosa and Dr. Wilfred D'Souza and Congress MLAs the controversy was confined to the question whether from the said conduct of the appellants an inference could be drawn that they had voluntarily given up the membership of the MGP. The reference to the newspaper reports and to the talk which the Speaker had with the Governor, in the impugned order of disqualification does not, in these circumstances, introduce an infirmity which would vitiate the said order as being passed in violation of the principles of natural justice.

The facts and circumstances involved in the case of Ravi Naik (supra) were apparent and glaring and there was also no denial by the appellants regarding the fact that they along with Congress (I) MLAs, and Dr. Barbosa etc., when, they met the Governor with Dr. Wilfred D'Souza to show that they had extended support to him is a glaring fact apparently demonstrating the conduct of the appellants and, therefore, was held to be sufficient to infer that the appellants had incurred disqualification, coupled with the photographs published in the print media. In this context, the Supreme Court has expressed that in such a situation order of disqualification did not introduce any infirmity which would vitiate the said order as being passed in violation of the principles of natural justice. The observations of the Apex Court do not demonstrate that the photograph in the print media along with the members of other political parties who also were either part of the Government or extending the support to the coalition Government, by itself is a conduct sufficient to conclusively infer that the independent Member who was extending support to the coalition Government and is shown in the photograph along with the members of political party has joined such political party. It is, therefore, evident that the inference which is required to be drawn on the basis of the photograph or participation in the function that the person has joined another party, necessarily depend upon the facts and circumstances of each case. It is in this context we are of the view that the law laid down by the Apex Court in Ravi Naik's case in this regard is of no help to the case of respondent No. 1.

70. Similarly, in the case of Narsingrao Gurunath Patil v. Arun Gujarathi, (supra) the contention was raised by Mr. Apte, the leaned Counsel for the petitioner in the said writ petition that the Speaker ought not to have relied upon the newspaper reports, proof of which was not established by leading evidence and in the absence of necessary proof, the newspaper reports were inadmissible in evidence and, therefore, the order is based on no material and is perverse. In the context of the above referred contention, the Division Bench expressed in paragraph 63 of the Judgment that they did not find any substance in the said contention of Mr. Apte and the degree of proof required under the Indian Evidence Act does not ipso facto apply in the disqualification proceedings before the Speaker as the Speaker functions as a Tribunal and not as the Court. The Division Bench in paragraph 63 also made observations that in Ravi Naik's case the Division Bench of this Court has expressly rejected the similar argument that the newspaper reports are inadmissible in evidence and the said view of the Division Bench of this Court was affirmed by the Supreme Court. It is, therefore, evident that even in the case of Narsingrao G. Patil (supra), the observations made by the Division Bench of this Court in paragraph 63 do not show that the photograph published in the print media by itself is sufficient to draw an inference that the member has incurred disqualification under Clause 2 of Paragraph 2 of the Tenth Schedule. The Division Bench has only rejected the argument that the newspaper report, the proof of which was not established by leading evidence is neither inadmissible nor strict degree of proof required under the Indian Evidence Act, does not ipso facto apply in disqualification proceedings before the Speaker as the Speaker functions as a Tribunal and not as a Court. There is absolutely no quarrel about the above referred proposition laid down by the Division Bench of this Court.

71. In the instant case, the petitioner had attended the State BJP Convention and was shown in the photograph sitting on the dais and it is alleged that the petitioner had seconded a political resolution passed in the said convention on that day. However, copy of the said resolution is not placed on record of the Speaker by respondent No. 1 nor there is any mention in the disqualification petition about the nature of resolution which was seconded by the petitioner and passed in the said convention of BJP and in the absence thereof the finding that the resolution which was seconded by the petitioner was the resolution in respect of political agenda of BJP, in our opinion is wholly irrational particularly where the Government is a multi-party Government. At the same time, it cannot be overlooked that when a Member of the House is an independent MLA, is free to extend support to any political party and there are no such impediments which otherwise are faced by the MLAs set up and elected by political parties. The photograph published in the print media can only go to the extent of showing the presence of the person in the convention of BJP. However, in the absence of copy of the resolution or without knowing the text of the resolution, which is alleged to have been seconded by the petitioner, to conclude that such a resolution was in respect of the political agenda of BJF, in our view, is absolutely perverse since the conclusion arrived at by the Speaker are based on no evidence. In the case of Ravi Naik (supra), the appellants had not disputed the fact that they had met the Governor along with Dr. Wilfred D'Souza and Dr. Barbosa on December 10, 1990 in the company of Congress (I) MLAs and it is this conduct of the appellants therein coupled with the photograph which was published in the print media, the Supreme Court has observed that the order of disqualification dues not suffer from any infirmity, which would vitiate the said order as being passed in violation of principles of natural justice. In the instant case, the text of resolution which was seconded by the petitioner could have shown whether the conduct of the petitioner of seconding such resolution is sufficient to conclusively draw an inference that the petitioner has joined the BJP, coupled with the photograph printed in the print media. However, in the absence thereof, the findings in this regard recorded by the. Speaker are based on conjunctures and surmises and are, therefore, perverse.

72. It is not doubt true that Clause 2 of Paragraph 2 of the Tenth Schedule is equally applicable to the multi-party Governments an the Speaker is empowered to disqualify the Member if there is sufficient evidence to show that such a Member has incurred disqualification under Clause 2 paragraph 2 of the Tenth Schedule provided the order of disqualification must be free from vice of perversity, mala fides and should he consistent with the constitutional mandate and the principles of natural justice. Similarly, the object of the Tenth Schedule is undoubtedly to discourage and curb unprincipled and illegal defection and to prevent the Member of the House from deceiving the electorates of his constituency who have elected him because of Ms political manifesto or in case of an independent, the commitment and the promises which he had given to the electorates. However, while implementing the mandate of the Tenth Schedule to the Constitution, care needs to be taken by the Speaker that the other equally important constitutional right which accrues to the elected Member of the House to continue to be the Member of the House to represent his constituency during such tenure fixed, should not be curtailed by passing an order which is mala fide, perverse as well as inconsistent with the principles of natural justice, as well as should not be in violation of the constitutional mandate.

73. It is not in dispute that the disqualification proceedings before the Speaker has a judicial complexion and since the Speaker acts as a Tribunal is also expected to have a judicial approach which must necessarily exclude the extraneous material from his consideration and observance of the rule of natural justice and fair play is part of the public policy and duty to act fairly is a part of public duty and, therefore, this must reflect in the order. If the order passed by the Speaker failed to show these aspects, it would render such order wholly unreasonable and perverse and as per the Wednesbury principle such unreasonable order can be described as being passed in bad faith.

74. Though we have already recorded our conclusion in respect of doctrine of necessity, whether available at the time of passing of the interim order by the Speaker, however, the contention of Mr. Aney the learned Senior Counsel in this regard based on the law laid down by the Apex Court in the case of Election Commission of India and Anr. v. Dr. Subramaniam Swamy and Anr. (supra) is, in our view, does not help the respondent. The Apex Court in paragraph 16 of the said Judgment, has observed thus :

We must have a clear conception of doctrine. It is well settled that the law permits certain things to be done as a matter of necessity which it would otherwise not countenance on the touchstone of judicial propriety. Stated differently, the doctrine of necessity makes it imperative for the authority to decide and considerations of judicial propriety must yield. It is often invoked in cases of bias where there is no other authority or judge to decide the issue. If doctrine of necessity is not allowed full play in certain unavoidable situations, it would impede the course of justice itself and the defaulting party would benefit therefrom. Take the case of a certain taxing statute which taxes certain perquisites allowed to Judges. If the validity of such a provision is challenged who but the members of the judiciary must decide it. If all the Judges are disqualified on the plea that striking down of such a legislation would benefit them, a stalemate situation may develop. In such cases the doctrine of necessity comes into play. If the choice is between allowing a biased person to act or to stifle the action altogether, the choice must fall in favour of the former as it is the only way to promote decision-making. In the present case also if the two Election Commissioners are able to reach a unanimous decision, there is no need for the Chief Election Commission to participate, if not the doctrine of necessity may have to be invoked.

75. The above referred observations of the Supreme Court clearly demonstrate that the doctrine of necessity can be invoked and is applicable only in certain unavoidable situations and if the action is not taken by the authority promptly and immediately, it would likely to impede the course of justice itself. If we apply the above referred law to the present case, there was no such unavoidable situation where the urgency was so imminent which required the Speaker to pass the interim order, particularly when the cause of action arose in October, 2002 and the disqualification petition was filed on 1.2.05. The only urgency which is evident from the circumstances on record was to somehow prevent the petitioner from voting and participating in the proceedings of the house since Mr. Parrikar was asked to take confidence vote which was scheduled in the afternoon of 2.2.05. We are, therefore, of the view that in the instant case, the doctrine of necessity as defined by the Apex Court in the case of Election Commission of India and anr. (supra) is not applicable and, therefore, the said decision is of no help to the respondent No. 1.

76. Before we part with the Judgment, we want to express that if the evil of defection needs to be curbed and the mandate of the Tenth Schedule is to be implemented in letter and spirit, the Disqualification Rules need to be given due and proper weightage. In fact, the implementation of Rule 3 by the leader of legislature party and of Rule 4 by the Member of the House, if insisted upon, the evil of defection can be nipped in the bud and can expose such defectors who do not respect the mandate of Tenth Schedule and deceive the electorates of their constituency. In the instant case, in paragraph 122 of the impugned order, the Speaker in this regard has observed thus :

It is obvious that the respondent was supporting the BJP government headed by Shri Manohar Parrikar. If the fact that, the respondent had joined BJP was publicized by filing Form I or Form III with the legislature, the respondent would have been disqualified at that stage itself. It is obvious that BJP and the respondent were both beneficiaries of the non-disclosure of the fact of the respondent joining BJP. This non-disclosure helped BJP to continue to take support of the respondent by styling him as an independent MLA and helped the respondent herein to continue and hold-out as an independent MLA so as to enjoy the status and benefit of both a MLA and a Minister. There is an old saying 'the truth comes out when the thieves fall apart' . In my opinion, the argument that the BJP did not disclose the factum of the respondent having joined BJP or that the House bulletin projected the respondent as an independent MLA, can in no way, be cited as an embargo or a prohibition of any sort to give a finding that an Independent MLA has indeed joined another party if such a thing is evidenced, and proved by leading cogent, outside independent evidence. Such evidence once being led, has to be weighed, analysed and examined on its own merits.

The above referred observations, in no uncertain terms convey that as long as the petitioner was extending support as an independent MLA to BJP, neither the respondent No. 1 nor any member of BJP ever felt that the petitioner has joined BJP in October, 2002 and incurred disqualification under Clause 2(2) of the Tenth Schedule. It is also obvious from the above referred finding recorded by the Speaker that when the petitioner withdrew support to the coalition Government headed by BJP and extended support to the Congress (INC) and since the Governor asked Mr. Parrikar to take a vote of confidence on 2.2.05, the respondent No. 1 with the consideration which is obvious in the circumstances, filed the disqualification petition on 1.2.05 in a hurry without even filing the documents listed in the list of documents. As stated earlier, the copy of the petition was served on the petitioner for the first time at 10 a.m. on 2.2.05 and without giving even breathing time to the petitioner, the interim order was passed by the Speaker at 12 noon on 2.2.05, obviously with oblique motive, thereby prevented the petitioner from voting and participating in the proceedings of the hose in the vote of confidence, which was scheduled in the after noon on 2.2.05.

77. The above referred finding recorded by the Speaker makes it implicitly clear that the Speaker has given unreasonable latitude to the Leader of the BJP legislature party and justified the action of not filing the Form No. 1 and Form No. III with the legislature only on the political consideration. We are, therefore, of the view that if the mandate of Tenth Schedule needs to be implemented in its real sense, the provisions and the procedure prescribed under the Disqualification Rules are required to be viewed in right perspective. We are aware that the breach of Disqualification Rules is a procedural irregularity and not amenable to the judicial review, the opinion which we have expressed is only for the purpose of effective implementation of the mandate of Tenth Schedule.

78. For the reasons stated herein above, in our view, the impugned order does not show that the Speaker has acted judiciously by excluding the extraneous material from his consideration and failed to adhere to the established principles of appreciation of evidence and fair play. Therefore, the impugned order is wholly irrational and completely unreasonable and is passed in bad faith. Hence, the impugned Order is quashed and set aside.

The writ petition is allowed. Rule is made absolute in the above terms. No order as to costs.


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