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Orders of Honble Speaker in Petitions No.1 to 14

Orders of Honble Speaker in Petitions No.1 to 14

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Naresh Kadyan, Chairman of PFA Haryana
Naresh Kadyan, Chairman of PFA Haryana

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BEFORE THE SPEAKER, HARYANA LEGISLATIVE ASSEMBLY AT CHANDIGARH Five petitions filed by Shri Kuldeep Bishnoi, M.L.A. before the Speaker in 2009 are as under: Petition No.1 Petition No.2 Petition No.3 Petition No.4 Petition No.5 — — — — — Kuldeep Bishnoi, Bhayana, M.L.A. M.L.A. V/s Vinod

Kuldeep Bishnoi, M.L.A. V/s Narender Singh, M.L.A. Kuldeep Bishnoi, Sangwan, M.L.A. M.L.A. V/s Satpal

Kuldeep Bishnoi, M.L.A. V/s Zile Ram Sharma, M.L.A. Kuldeep Bishnoi, Singh, M.L.A. No.6 to 14 were M.L.A. V/s Dharam

Petitions August, 2011. Petitions No.6 Petitions No.7 Petitions No.8 Petitions No.9 Petitions No.10 Petitions No.11 Petitions No.12 Petitions No.13 Petitions No.14 — — — — — — — — —

clubbed

with

the

aforementioned petitions No.1 to 5, vide order dated 10th

Ashok Arora, M.L.A. V/s Satpal Sangwan, M.L.A. Ashok Arora, M.L.A. V/s Narender Singh, M.L.A. and Others Ashok Arora, M.L.A. V/s Dharam Singh, M.L.A. Sher Singh Barshami, M.L.A. V/s Dharam Singh, M.L.A. Sher Singh Barshami, M.L.A. V/s Satpal Sangwan, M.L.A. Sher Singh Barshami, M.L.A. Narender Singh, M.L.A. and Others Ajay Singh Chautala, M.L.A. Narender Singh, M.L.A. and Others V/s V/s

Ajay Singh Chautala, M.L.A. V/s Dharam Singh, M.L.A. Ajay Singh Chautala, M.L.A. V/s Satpal Sangwan, M.L.A. Petitions under the Tenth Schedule of the Constitution of India and the rules framed there under.

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Present:

Mr. Satya Pal Jain, Senior Advocate along with Mr. Dhreej Jain, Advocate for the Petitioner in Petition Nos.1 to 5 Mr. Harbhagwan Singh, Senior Advocate along with Mr. Arun Walia, Mr. Tarunveer Vashist, Mr. Jagbir Singh Narwal and Ms. Dilraj Kaur, Advocates for the respondents. JUDGMENT

(1)

This judgment will decide petitions No.1 to 14 filed

by Members of the Haryana Legislative Assembly as by my separate order on file all the petitions were clubbed together as agreed by all the parties. (2) thereunder, The above petitions, filed under Article 191 read with seek the disqualification of the above said

Tenth Schedule of the Constitution of India and the rules framed Legislators (respondents), as a Member of the Haryana State Legislative Assembly, on the ground of their allegedly having voluntarily given up membership of their original political party, on whose tickets they were elected, i.e. Haryana Janhit Congress (BL) Party (hereinafter referred to as ‘HJC(BL) Party’), and merging their party into Indian National Congress by joining the Indian National Congress Party (hereinafter referred to as ‘INC Party’). (3) The respondents-Legislators have filed their separate

written statements and have denied the factum of their alleged defection. Their contention is that HJC(BL) Party as a political party merged with the INC Party. According to the respondents, the decision to this effect was taken in a meeting of the Primary Members-cum-Delegates of the HJC(BL) Party held at Karnal on the 8th of November, 2009, where 75 out of 108 Primary Members-cum-Delegates of the Party (including all the five respondents) were present. It is claimed that all the primary members of the HJC(BL) Party, who were present in the meeting

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held at Karnal on 8th of November, 2009, unanimously decided to merge their Party with the INC Party and thus both the abovesaid parties stood merged on the 8th of November, 2009 itself. It is also contended that in a separate meeting held on the same day, the five members i.e. the respondents endorsed the decision taken by the primary members of HJC(BL) Party. Consequently, it is claimed that the HJC(BL) Party ceased to exist on the 8th of November, 2009 itself. (4) The petitioners in petitions No.1 to 5 filed

replications to the written statements and controverted the factum of alleged merger of the two political parties. The respondents filed rejoinders to counter the facts stated in the replications. In the rejoinders filed by the respondents-MLAs, they controverted the contentions raised by the petitioners in their replications and reiterated their stand taken in their respective written statements. (5) Before adverting to the controversy in issue, it is

necessary to put on record the sequence of facts leading to the filing of the above-said petitions for disqualification of the respondents. General Elections to the Haryana Vidhan Sabha were held on 13th October, 2009. The results were declared on 22nd October, 2009. The party-wise position, as emerged after the General Elections, was as under: Parties Members Indian National Congress 40 Indian National Lok Dal 31 Haryana Janhit Congress (BL) 06 Bhartiya Janta Party 04 Bahujan Samaj Party 01 Shiromani Akali Dal 01 Independents 07 Total = 90

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(6)

First Session of the Haryana Vidhan Sabha, after the

aforementioned General Elections, was held on 28th October, 2009. The Hon’ble Governor of Haryana called upon Shri Bhupinder Singh Hooda, M.L.A. to form a Government and asked him to prove his majority on the Floor of the House. Session of the Haryana Legislative Assembly was called for this purpose and the Ministry headed by Shri Bhupinder Singh Hooda obtained Vote of Confidence in the House on 28th October, 2009. 47 Legislators, out of effective strength of the House of 89, voted in favour of Vote of Confidence. All the six MLAs elected on the symbol of HJC(BL) Party abstained from voting. (7) Narender On the 9th of November, 2009, four Members of the Singh and Zile Ram Sharma, addressed a

HJC(BL) Party, namely Sarvshri Satpal Sangwan, Vinod Bhayana, communication to the then Speaker, Haryana Vidhan Sabha stating that there has been a merger of HJC(BL) Party with the INC Party. The above letter is reproduced here under:
“To

The Hon’ble Speaker, Haryana Vidhan Sabha, Chandigarh. Subject: Sir, A decision has been taken to merge Haryana Janhit Congress (BL) Party with the Indian National Congress Party in terms of the provisions contained in para 4 of the Tenth Schedule of the Constitution of India. The decision in this regard is attached herewith. All the requirements of merger in terms of the above said constitutional provisions have been fulfilled while taking the decision. Thus, you are requested to accept the merger of Haryana Janhit Congress (BL) Party with Indian National Congress and recognize the applicant legislators as members of the Indian National Congress Party in the Haryana Vidhan Sabha. Yours sincerely, Sd/- 9.11.09 (SATPAL) M.L.A., Dadri-56 Sd/- 9.11.2009 (NARENDER SINGH) M.L.A., Narnaul-70 Sd/- 9.11.2009 (VINOD BHAYANA) M.L.A., Hansi-50 Sd/- 9.11.2009 (ZILE RAM CHOCHRA) M.L.A., Assandh-23” Merger of Haryana Janhit Congress (BL) Party with the Indian National Congress Party.

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(8)

A Resolution to the above effect was also passed in a

Meeting of Haryana Janhit Congress (BL) Legislature Party held at Chandigarh on 09.11.2009. Through a letter dated 9th of November, 2009, Shri Randeep Singh Surjewala, Parliamentary Affairs Minister and Govt. Chief Whip, brought to the notice of the then Speaker that Ch. Bhupinder Singh Hooda, Chief Minister has asked him to communicate to the Speaker that he has accepted the merger of HJC(BL) Party into INC Party. The letter is reproduced here under: “Attention : Hon’ble Speaker, Haryana Vidhan Sabha, Chandigarh.

Sir, Leader of Congress Legislature Party and Chief Minister, Ch. Bhupinder Singh Hooda has asked me to communicate that he has accepted the merger of Haryana Janhit Congress (BL) Party into Indian National Congress Party. Yours sincerely, Sd/- 9.11.2009 (Randeep Singh Surjewala) Parliamentary Affairs Minister and Govt. Chief Whip.” (9) Another letter dated 09.11.2009 was addressed to

the then Speaker by Shri Phool Chand Mullana, President, Haryana Pradesh Congress Committee informing him that he has accepted the merger of HJC(BL) Party into INC Party. It is reproduced here under: “Attention : Hon’ble Speaker, Haryana Vidhan Sabha, Chandigarh.

Sir, I, Phool Chand Mullana, President, Haryana Pradesh Congress Committee, hereby accept the merger of Haryana Janhit Congress (BL) Party into Indian National Congress Party. Yours sincerely, Sd/- 9.11.09 (Phool Chand Mullana) President, Haryana Pradesh Congress Committee”

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(10)

On the same day, i.e. 9th of November, 2009, Shri

Dharam Singh, M.L.A., Samalkha-respondent informed the then Speaker regarding merger of HJC(BL) Party with the INC Party. The letter dated 09.11.2009 is reproduced here under: “To The Hon’ble Speaker, Haryana Vidhan Sabha, Chandigarh. Subject: Sir, I along with Shri Satpal, M.L.A., Dadri Assembly; Shri Vinod Bhayana, M.L.A., Hansi Assembly; Shri Narender Singh, M.L.A., Narnaul and Shri Zile Ram Chochra, M.L.A., Assandh Assembly had decided to merge Haryana Janhit Congress (BL) Party with the Indian National Congress Party in terms of the provisions contained in para 4 of the Tenth Schedule of the Constitution of India. All five of us had decided to meet at Chandigarh today to formally convey the same in writing to your good self. However, I could not reach in time owing to unavoidable circumstances. I understand that all the other four M.L.As named above have conveyed the decision of merger in writing to your good self by appearing in person. Though, I am a part and parcel of this merger but I could not sign decision and appear in person before your good self as explained above. I, therefore, through the instant writing, convey to your good self my decision for acceptance of merger of Haryana Janhit Congress (BL) Party with Indian National Congress. This may be treated as a part and parcel of the decision already conveyed to your good self separately by the above named four legislators today itself. You are, therefore, requested to accept the merger of Haryana Janhit Congress (BL) Party with Indian National Congress Party and consequently, henceforth I along with the other four legislators may be recognized as members of the Indian National Congress Party in the Haryana Vidhan Sabha. Yours sincerely, Nov. 9, 2009. Sd/(DHARAM SINGH) M.L.A., 27-Samalkha.” (11) On the 10th of November, 2009, a letter was Merger of Haryana Janhit Congress (BL) Party with the Indian National Congress Party.

addressed by Shri Phool Chand Mullana, President, Haryana Pradesh Congress Committee intimating the then Speaker that

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Indian National Congress Party has accepted Shri Dharam Singh, M.L.A., Samalkha as its member. Similarly, Shri Randeep Singh Surjewala, Parliamentary Affairs Minister and Govt. Chief Whip vide letter dated 10.11.2009 conveyed to the then Speaker that the Chief Minister has asked him to communicate to the Speaker that he has accepted Shri Dharam Singh as member of the INC Party by way of merger of HJC(BL) Party into INC Party. (12) The then Speaker vide order dated 09.11.2009

accepted the merger of HJC(BL) Party with INC Party with immediate effect in terms of Tenth Schedule of the Constitution of India. The above said order is attached herewith as Annexure-I. Another order of Speaker dated 10th November, 2009, whereby the factum of membership of Shri Dharam Singh, aforesaid M.L.A., as a member of the Indian National Congress Legislature Party was accepted, is attached herewith as Annexure-II. (13) The respondents though not served but put in 5

separate applications dated 04.03.2010 requesting 8 weeks time to enable them to file their respective written statements. Six weeks time was given on their request. Later requests were made for more time as the respondents wanted to collect relevant records for their defence. Last opportunity was granted to the respondents to file their comments/reply within 4 weeks vide order dated 16.07.2010. (14) Though last opportunity was given to the

respondents to file their response but the petitioner, Shri Kuldeep Bishnoi, in the meantime, approached the Hon’ble High Court through Civil Writ Petition No.14194 of 2010 wherein he leveled allegations of mala fide against the Speaker and also against the respondents/MLAs. He prayed therein that High Court itself should declare these MLAs disqualified for the current

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term of the Haryana Vidhan Sabha or a time-frame be fixed directing the speaker to decide the cases within that time. Written statements were filed on behalf of the then Speaker and also by 5 MLAs in the aforesaid writ petition. The case was argued at length in the High Court. It is significant that during the arguments in the writ petition, Shri Satya Pal Jain, Senior Advocate, counsel for the writ petitioner withdrew allegations of mala fide against the Speaker. (15) On the 20th of December, 2010, Hon’ble Single Judge

of the High Court pronounced the judgment, whereby the Speaker was directed to finally decide the petitions filed by the writ petitioner within a period of 4 months from the receipt of certified copy of the judgment. (16) In sequence of the judgment of the Hon’ble High

Court dated 20.12.2010, the petitions were ordered to be heard on 20th January, 2011. (17) Several miscellaneous applications were filed by

respondents raising objections regarding the maintainability of the petitions. After hearing at length both the parties, all these applications were dismissed by speaking orders. (18) In the meantime, the then Speaker, Mr. H.S.

Chattha, was included in the Council of Ministers and the Deputy Speaker of the Haryana Vidhan Sabha, Shri Akram Khan, took over the duties of the Speaker on 28.01.2011. (19) Against the Judgment dated 20.12.2010 passed by

the learned Single Judge of the Hon’ble High Court in CWP No.14194 of 2010, my Predecessor in office filed LPA No.366 of 2011 in the Hon’ble High Court. Three other LPAs were also filed against the same by the 5 MLAs being LPA No.367 of 2011, LPA No.368 of 2011 and LPA No.369 of 2011. The LPAs came up for

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preliminary hearing before a Division Bench consisting of the then Hon’ble the Chief Justice Ranjan Gogoi and Mr. Justice Augustine George Masih on 01.03.2011. Hon’ble Division Bench issued notice of motion in the LPAs and ordered that the Speaker will decide the matter expeditiously and the operation of the Judgment of learned Single Judge dated 20.12.2010 was stayed. (20) The LPAs were heard from 18th July to 20th

July, 2011 and the judgments were reserved on 20th of July, 2011 itself. (21) On 18.11.2011, C.M. No.5575 of 2011 in LPA No.366

of 2011 was taken up Hon’ble High Court, where the following orders were passed: “ CM No.5575 of 2011 in LPA No.366 of 2011 xxxxx xxxxx xxxxx C.M. is allowed. Status report is taken on record. Mr. Sanjiv Bansal, learned counsel for the appellants, also filed a status report by way of affidavit of Shri Kuldeep Sharma, Speaker, Haryana Vidhan Sabha, Chandigarh, in the Court today, which is also taken on record and copy has been furnished to the counsel opposite. The main appeal and connected cases be put up on 2.12.2011. (M.M. KUMAR) JUDGE (GURDEV SINGH) JUDGE November 18, 2011” (22) In compliance of the order of the Hon’ble High Court,

the status report regarding all the cases by way of affidavit was filed on behalf of the Speaker by Additional Secretary, Haryana Vidhan Sabha. However, the Hon’ble High Court ordered that it should be filed under the signature of the Speaker. It was duly

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filed on 17.11.2011 under my signature, in compliance of the order of the Hon’ble High Court. (23) The Hon’ble High Court took up the LPAs on

02.12.2011 and adjourned the same to 07.12.2011 with the direction that the entire record before the Speaker may be produced before the High Court. On the 07th of December, 2011, the record was handed over to the responsible officer of the High Court and thereupon the LPAs were adjourned to 19.12.2011. (24) The LPAs could not be taken up on 19th of December,

2011. On the 20th of December, 2011, the Hon’ble High Court pronounced the judgments and dismissed the LPAs. The Hon’ble High Court, exercising power under Order XLI Rule 33 CPC, ordered that the respondents-MLAs will be treated as a separate group i.e. unattached MLAs. The relevant and operative part of the judgment is reproduced here under:“39. In view of the aforesaid discussion, the appeals are dismissed. However, we accept the contention of Mr. Jain, learned senior counsel for the writ petitioner-respondent No.1 and exercising jurisdiction under Order XLI Rule 33 C.P.C. grant limited relief of suspending the operation of orders dated 9.11.2009 and 10.11.2009 (P-4 and P-7) passed by the Speaker. Consequently, the appellant-MLAs, namely, Sarvshri Satpal Sangwan, Vinod Bhayana, Narender Singh, Zile Ram Sharma and Dharam Singh would not be deemed to be members of the INC party nor that of HJC (BL) till the decision of disqualification petitions. However, they would continue to be regarded as unattached members of the Legislative Assembly for the purposes of attending the session and for no other purpose. They shall also not hold any office till the decision of disqualification petitions. The Speaker shall allot them a separate set of seats in the House. However, their status shall be subject to the final decision of the Speaker in disqualification petitions, which are pending before him. The Speaker is directed again to comply with the undertaking given to this Court and proceed with the disqualification petitions in accordance with law and decide the same on or before 30.4.2012. We make it clear that the Speaker may proceed in accordance with law and observations made in this order shall not be construed as findings on merit with regard to disqualification petitions.”

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(25)

Speaker and the 5 MLAs, who were respondents in

the petitions filed by Shri Bishnoi for their disqualifications, filed separate SLPs in the Hon’ble Supreme Court. The SLP filed by the Speaker was bearing No.54 of 2012 and other SLPs were bearing No.55 of 2012, No.59 of 2012 and No.72 of 2012. While issuing notices, the Hon’ble Supreme Court on 4th of January, 2012, stayed the operation of the order of the High Court dated 20.12.2011. The order passed in SLP(C) No.54 of 2012 is reproduced here under: “SLP (C) No.54 of 2012 Taken on board. Issue notice. Since the contesting respondent, who is the respondent No.1, Mr. KULDEEP BISHNOI, is represented on caveat, service on the said respondent is dispensed with. The proforma respondent Nos.2 to 6 are also represented and, accordingly, service on the said respondents is also dispensed with. Let the respondent Nos.7 and 9 be served, both in the usual course and also by way of dasti service. As far as the respondent No.8, Election Commission of India, is concerned, let a copy of the Special Leave Petition be served on Ms. Meenakshi Arora, learned advocate, who usually appears for the Election Commission. In the meantime, the impugned order of the Punjab & Haryana High Court dated 20th December, 2011, in L.P.A. No.366 of 2011, shall remain stayed. xxxxx Sd/- 04.01.12 Court Master xxxxx xxxxx Sd/Assistant Registrar”

The SLPs were adjourned to 15th of February, 2012 for final hearing. (26) SLPs bearing No.54 of 2012, No.55 of 2012, No.59 of

2012 and No.72 of 2012 were decided by the Hon’ble Supreme Court on 28.09.2012. The Hon’ble Supreme Court framed five questions of law, which are as under:(a) Whether the High Court in exercise of its powers under Articles 226 and 227 of the Constitution, has the jurisdiction to issue directions of an interim nature to a Member of the House while a disqualification petition of such Member is pending before the Speaker of a State

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Legislative Assembly under Article 191 read with the Tenth Schedule to the Constitution of India? (b) Whether even in exercise of its powers of judicial review, the High Court, as a constitutional authority, can issue mandatory directions to the Speaker of a State Assembly, who is himself a constitutional authority, to dispose of a disqualification petition within a specified time? Can the High Court, in its writ jurisdiction, interfere with the disqualification proceedings pending before the Speaker and pass an order temporarily disqualifying a Member of the State Legislative Assembly, despite the law laid down by this Court in Raja Soap Factory vs. V. Shantharaj & Ors. [(1965(2) SCR 800] and in L. Chandra Kumar vs. Union of India [(1997) 3 SCC 261], to the contrary? When a disqualification petition filed under Article 191 read with the Tenth Schedule to the Constitution of India is pending consideration before the Speaker, can a parallel Writ Petition, seeking the same relief, be proceeded with simultaneously? And Did the High Court have jurisdiction to give directions under Order 41 Rule 33 of the Code of Civil Procedure, despite the express bar contained in the Explanation to Section 141 of the Code of Civil Procedure, in proceedings under Article 226 of the Constitution?

(c)

(d)

(e)

In Para-40 of the Judgment of the Hon’ble Apex Court, certain basic issues were discussed and decided. Para-40 of the Judgment is reproduced here under:“40. Most of the questions raised by Mr. Nidesh Gupta and Dr. Rajeev Dhawan contemplate a situation where the Speaker had taken a final decision on a disqualification petition. However, in the instant case we are really required to consider whether the High Court was competent to pass interim orders under its powers of judicial review under Articles 226 and 227 of the Constitution when the disqualification proceedings were pending before the Speaker. In fact, even in Kihoto Hollohan’s case (supra), which has been referred to in extenso by Dr. Dhawan, the scope of judicial review has been confined to violation of constitutional mandates, mala fides, non-compliance with rules of natural justice and perversity, but it was also very clearly indicated that having regard to the constitutional scheme in the Tenth Schedule, normally judicial review could not cover any stage prior to the making of the decision by the Speaker or the Chairman of the House, nor any quia timet action was contemplated or permissible.” Relevant findings returned in Para-44 of the

Judgment are reproduced here under:

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“44. The scheme of the Tenth Schedule to the Constitution indicates that the Speaker is not competent to take a decision with regard to disqualification on ground of defection, without a determination under paragraph 4, and paragraph 6 in no uncertain terms lays down that if any question arises as to whether a Member of the House has become subject to disqualification, the said question would be referred to the Speaker of such House whose decision would be final. The finality of the decisions of the Speaker was in regard to paragraph 6 since the Speaker was not competent to decide a question as to whether there has been a split or merger under paragraph 4. The said question was considered by the Constitution Bench in Rajendra Singh Rana’s case (supra). While construing the provisions of the Tenth Schedule to the Constitution in relation to Articles 102 and 191 of the Constitution, the Constitution Bench observed that the whole proceedings under the Tenth Schedule gets initiated as a part of disqualification proceedings. Hence, determination of the question of split or merger could not be divorced from the motion before the Speaker seeking a disqualification of the Member or Members concerned under paragraph 6 of the Tenth Schedule. Under the scheme of the Tenth Schedule the Speaker does not have an independent power to decide that there has been split or merger as contemplated by paragraphs 3 and 4 respectively and such a decision can be taken only when the question of disqualification arises in a proceeding under paragraph 6. It is only after a final decision is rendered by the Speaker under paragraph 6 of the Tenth Schedule to the Constitution that the jurisdiction of the High Court under Article 226 of the Constitution can be invoked.” As it clear from the above, the Hon’ble Apex Court held that only after a final decision is rendered by the Speaker under paragraph 6 of the Tenth Schedule to the Constitution of India when the jurisdiction of the High Court under Article 226 of the Constitution is invokeable. In Para-45 of the Judgment, the Hon’ble Apex Court held that since the decision of the Speaker on a petition under paragraph 4 of the Tenth Schedule concerns only a question of merger, on which the Speaker is not entitled to adjudicate, the High Court could not have assumed jurisdiction under its powers of review before a decision was taken by the Speaker under paragraph 6 of the Tenth Schedule to the Constitution. It was further held that it is only in the proceedings under paragraph 6 that the Speaker assumes jurisdiction to pass a quasi-judicial order, which is amenable to the writ jurisdiction of the High

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Court, where the question relating to the disqualification is to be considered and decided. It was also held that restraining the Speaker from taking any decision under paragraph 6 is beyond the jurisdiction of the High Court. Since the Constitution itself has vested the Speaker with the power to take a decision under paragraph 6 and care has to be taken to indicate such decision of the Speaker would be final. In Para-48 of the Judgment, it is held that the High Court has no jurisdiction to pass such an order, which was in the domain of the Speaker and the High Court has assumed jurisdiction, which it never had in making the interim order, which has the effect of preventing the 5 MLAs of the Haryana Vidhan Sabha in participating The in the proceedings of the Legislative under:“48. In our view, the High Court had no jurisdiction to pass such an order, which was in the domain of the Speaker. The High Court assumed the jurisdiction which it never had in making the interim order which had the effect of preventing the five MLAs in question from effectively functioning as Members of the Haryana Vidhan Sabha. The direction given by the learned Single Judge to the Speaker, as endorsed by the Division Bench, is, therefore, upheld to the extent that it directs the Speaker to decide the petitions for disqualification of the five MLAs within a period of four months. The said direction shall, therefore, be given effect to by Speaker. The remaining portion of the order disqualifying the five MLAs from effectively functioning as Members of the Haryana Vidhan Sabha is set aside. The said five MLAs would, therefore, be entitled to fully function as Members of the Haryana Vidhan Sabha without any restrictions, subject to the final decision that may be rendered by the Speaker in the disqualification petitions filed under paragraph 6 of the Tenth Schedule to the Constitution.” (27) Only issue arises, in these cases, is whether in Assembly. relevant directions/adjudication

contained in Para-48 of the Judgment are reproduced here

the facts and circumstance the respondents/MLAs are liable to be disqualified for the present term of the Haryana Legislature or not? Onus of this issue was put on the petitioner, Shri Kuldeep Bishnoi. No other issue was claimed by any of the parties.

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The petitioner, Shri Kuldeep Bishnoi appeared as his sole witness in this case. He came in the witness box and then closed his evidence. Documentary evidence put on record by him were letter dated 09.11.2009 addressed to the Speaker and signed by 4 MLAs, namely Servshri Satpal Sangwan, Vinod Bhayana, Narender Singh and Zile Ram Sharma. It is exhibited as Ex.P1. Another document signed by the aforesaid 4 MLAs put in on the record are the minutes of the meeting of Haryana Janhit Congress (BL) Legislature Party held at Chandigarh on 09.11.2009, it is exhibited as Ex.P2. It may be stated that except the letters Ex.P1 and Ex.P2 no other document has been produced by the petitioner. (28) The following delegates-cum-primary members of

the erstwhile HJC (BL) Party appeared as witnesses and deposed regarding the factum of the decision of merger taken on 8th November, 2009 in a meeting held at Karnal on 08.11.2009. The names mentioned herein include 5 respondents:1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Narender Singh, MLA (RW-1) Om Prakash Yadav (RW-2) Hukam Chand (RW-3) Vinod Bhayana, MLA (RW-4) Manoj Kumar (RW-5) Satpal Sangwan, MLA (RW-6) Purshotam (RW-7) Vinod Sharma (RW-8) Zile Ram Sharma, MLA (RW-9) Jaiveer Singh Yadav (RW-10) Rajinder Singh (RW-11) Surender Kumar (RW-12) Dharam Singh Chhoker, MLA (RW-13) Sumer Singh (RW-14) Rajinder Singh (RW-15) Udai Singh (RW-16) Rajinder Singh Chauhan (RW-17) Ashok Kumar (RW-18) Sanjay Kumar (RW-19) Dharmender Sanwal (RW-20) Shamsher (RW-21)

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22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68.

Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri Shri

Naresh Pahalwan (RW-22) Sanjay Mauri (RW-23) Vinit Sangwan (RW-24) Rajvir Singh (RW-25) Shyam Sharma (RW-26) Satbir Singh (RW-27) Zile Singh Phogat (RW-28) Bijinder Singh (RW-29) Ajay Rana (RW-30) Parveen (RW-31) Dinesh Bhutani (RW-32) Suresh Kumar (RW-33) Naresh Kumar (RW-34) Ram Avtar (RW-35) Satpal Singh (RW-36) Dev Raj (RW-37) Rakesh Kumar (RW-38) Ravinder Kumar (RW-39) Suresh Kumar (RW-40) Rakesh Khurana (RW-41) Jasbir Singh (RW-42) Rajesh Thakral (RW-43) Mitter Pal (RW-44) Gulab Singh (RW-45) Devvart (RW-46) Krishan Lal (RW-47) Ram Diya (RW-48) Krishan (RW-49) Sanjay Mehla (RW-50) Banarsi Dass (RW-51) Harish Kumar (RW-52) Lahna Singh (RW-53) Ramesh Kumar (RW-54) Aman Kumar (RW-55) Mohinder (RW-56) Suresh Kumar (RW-57) Narender (RW-58) Lehri Singh (RW-59) Mange Ram (RW-60) Ramu (RW-61) Sanjeev (RW-62) Sri Ram (RW-63) Vinay Jain (RW-64) Jail Singh (RW-65) Ram Kumar (RW-66) Dilbag (RW-67) Subhash (RW-68)

There were no vital discrepancy in their depositions and stood the test of rigorous cross-examination by Mr. Satya

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Pal Jain, Senior Advocate, counsel for Mr. Kuldeep Bishnoi. The statements were consistent and are worth credence. (29) When the case came up for evidence on 19.12.2012,

4 witnesses whose name were in the list could not appear on that date, Mr. Harbhagwan Singh, Senior Advocate, counsel for the respondents requested for one more adjournment for production of these witnesses. I was constrained to reject his request because of constraint of time as the matter is to be finalized within a specific time, which expires on 13th of January, 2013. (30) It is argued by Mr. Harbhagwan Singh, Senior

Advocate for the respondents that merger of the two political parties i.e. HJC (BL) Party and INC Party, has to be presumed in the facts and circumstances of the case. Sub-para 2 of Para-4 of the Tenth Schedule to the Constitution of India envisages that the merger of the original political party shall be deemed to have taken place if, and only if, not less than 2/3rd of the strength of the legislature party concerned have agreed to such merger. It is clear from the language of the statute itself. Sub-para 2 of Para-4 of the Tenth Schedule to the Constitution is reproduced here under: “4. Disqualification on ground of defection not to apply in case of merger.—(1) xxxxx (2) For the purposes of sub-paragraph (1) of this paragraph, the merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger.” (31) Mr. Harbhagwan Singh, Senior Advocate, appearing

for the respondents, has emphasized that the basic feature of Constitution is a parliamentary democracy. Tenth Schedule to the Constitution of India for the first time gave recognition to the role of political parties in constitutional document. In the scheme of our Constitution maintaining the integrity of a political party is

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important but it should not lead to an autocracy denying the legislators the right to have the commitment to their constituency. (32) All provisions in the Constitution have to be

construed which should lead to inner party democracy and not to a dictatorship over-riding and overwhelm majority. He argued that Tenth Schedule to the Constitution was brought in the Constitution to strengthen the parliamentary democracy and not to stifle individual expression of conscience. A minority cannot over-ride overwhelm voice which is 5/6th majority of the erstwhile HJC (BL) Legislature Party in the cases in hand. The voice of the majority cannot be stifled by a minority on the basis of some assumption and presumption which have no legal basis. One legislator out of 6 when running away from a decision duly taken cannot over-ride a decision taken collectively by all other i.e. 5 legislators and other, majority of the delegates-cum-primary members of the HJC (BL) Legislature Party. (33) Our Constitution is a living entity and provides for

the domain and compulsions of changing times. In fact, Clause (c) of sub-para of paragraph 2 of the Tenth Schedule gives effect to the balance structure between party autocracy and individual expression of conscience. Only duty to cast upon the Speaker under the Tenth Schedule of the Constitution is to see the claim which has been made by the Members of the Assembly, who are not less than 2/3rd of the entire strength of legislative wing of the party. If it is 2/3rd or more, the merger of the two political parties is to be presumed as mandated by the Constitution itself. It is clear that once the claim has been made regarding merger, the Hon’ble Speaker is to see whether 2/3rd legislative members of the merging party have agreed to the

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merger of the two political parties. However, 2/3rd members of its legislature party have been proved to have concurred for the merger, the presumption would be that two political parties have merged in entirety. (34) Admittedly, 4 members constitute 2/3rd of the

membership of HJC(BL) Legislature Party. It is also an admitted fact in their application 4 legislators initially through their letter had informed the Speaker regarding the merger of the two political parties, i.e. Indian National Congress and the Haryana Janhit Congress (BL), in the first instance. One more legislator informed the Speaker through a separate letter on the same day. It constituted 5/6th majority of the legislators belonging to erstwhile HJC(BL) Party. In the circumstances, the lone legislator i.e. Shri Kuldeep Bishnoi, who had changed his mind at the last moment, cannot withhold the decision of merger taken in accordance with the Tenth Schedule of the Constitution. In the above circumstances, the merger has to be deemed to have taken place, which is in consonance with the mandate contained in the relevant sub-para 2 of Para-4 of the Tenth Schedule of the Constitution. The relevant part is reproduced here in before. (35) The matter can be looked at from another angle also.

A point, which has been raised by Shri Satya Pal Jain, Senior Advocate that even if it is accepted, though not admitted that the 4 people who joined Congress Party earlier constituted 2/3rd and that they could do it under the Constitution, but the fifth member, namely Shri Dharam Singh, MLA, has to be disqualified because he came to join INC Party separately and at that point of time the strength of HJC (BL) Party was reduced to mere two and lone member did not constitute 2/3rd majority. This argument is fallacious because when there is a merger of the two political parties, the merging party i.e. HJC(BL) Party ceases

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to exist and as such there is no question of defection on the part of Shri Dharam Singh. As stated earlier, 5 MLAs had come at the initial stage itself and this argument does not stand the test of facts as well as law. In the facts and circumstances of the case, the merger of two political parties has been proved as a fact. (36) In addition, if 75 members who were unquestionably

(as it has not been questioned or seriously disputed) delegatescum-primary members of the HJC(BL) Party have decided to merge with the INC Party in the meeting held at Karnal on 08.11.2009 the question put to the witnesses on behalf of the Mr. Jain were that there was no such meeting. It is difficult to apprehend that 75 members out of 108 gathered in a meeting and 68 of them appeared before me as witnesses stating that there was a meeting at Karnal on 8th November, 2009, there remains no doubt regarding the factum of the meeting being held on that date. Admittedly, Mr. Kuldeep Bishnoi was not present in the meeting and he cannot say from first hand knowledge regarding what transpired at Karnal on that day. A person who is not present cannot be deemed to know and state as to whether the meeting was held or not at Karnal or if held what were the decision taken therein. Obviously, evidence could be brought on the record on behalf of the petitioners to prove that there was no such meeting at such a place. Shri Bishnoi who was admittedly not present in the above said meeting is not in a position to deny the very happening of an event taken place at a distance place i.e. Karnal. (37) The fact that no evidence or a witness has been

produced by Shri Kuldeep Bishnoi, showing that there was no such meeting held at Karnal on that date, goes a long way to show that there is no evidence to the effect that there was no such meeting, more especially when 68 primary members-cum-

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delegates of erstwhile party have categorically stated that there was such a meeting. Moreover, they had attended it and passed the requisite resolution of dissolution of HJC (BL) Party and its merger with Indian National Congress Party. They testified to this effect as a witness before me as well. (38) Shri Kuldeep Bishnoi, the petitioner appeared as his

sole witness in support of contention made in his petitions. Whether he can be implicitly believed or not shall be seen during the discussion hereinafter but one significant fact is that he could not produce several documentary evidence, which was admittedly in his possession and were withheld by him. Adverse presumption/conclusions have to be drawn and will be discussed in the succeeding paragraphs. (39) Shri Kuldeep Bishnoi was questioned whether he

could produce any document evidencing his election alleged to have been held on 8th of November, 2009 as the President of HJC (BL) Party, he said that he cannot but immediately stated that he can produce it later. He, however, never produced it. He was again questioned why he had not produced any documentary evidence in support of his contention along with his application praying disqualification of the respondents. His reply was that “he has given all documents to his lawyer which are with him and it was upto him to produce them”. The concerned question and its answer is reproduced herein under: “Question: Can you give only reason as to why no documentary evidence has been produced by you along with the petition before the Speaker? I had given all the documents to my lawyer and those documents are with him and it is upto him as to which documents are attached with the petition.”

Answer:

(40)

Non-production of these documents raises serious

doubt about the authenticity of the claim made by Shri Kuldeep Bishnoi. Why these documents were withheld is intriguing.

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Similarly, he was asked regarding a meeting of the HJC(BL) Legislature Party held on 23.10.2009. He said there is record of this meeting, which is with him and he will produce it later. It was never produced, in spite of the undertaking. Had the record been produced, the contents and details of the proceedings would have been disclosed and same could have had bearing on the controversy in issue in this case. Shri Kuldeep Bishnoi admitted that a meeting of the legislative wing of his party was held on 06.11.2009. He, however, said that he can’t give the time of the meeting. When asked about the agenda of that meeting, he categorically stated that “he can’t disclose the agenda of that meeting”, later on said that, in fact, it was to endorse the proceedings of the previous meeting. It is strange that, at one stage, he refuses to disclose the agenda of the meeting and in the next breath says that it was to endorse the proceedings of the previous meeting. Obviously, a meeting cannot be held simply for endorsing the proceedings of the previous meeting. It proves that he is a reluctant witness and is not coming straight with the facts. This fact creates a dent to his credibility as a witness. He admitted that he had made a statement in Indian Express on 23.10.2009 that some negotiations with the Congress and other opposition parties were on and then said voluntarily that in politics negotiations cannot be termed as a formal and informal meeting. This goes to show that negotiations regarding some sort of cooperation with the Congress were on at that stage as well, which later on culminated into merger. (41) Shri Kuldeep Bishnoi when put a direct question

regarding the contents of the meeting of the newly elected MLAs of HJC(BL) Party on 23.10.2009, his reply was ‘there is a record but at present he does not have it’. He also said that he will produce it later, which he never did.

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He has also admitted that when he was a Member of the Parliament of the Congress Parliamentary Party he voted for the No Confidence Motion brought against the Government of his Party. That act is not deemed healthy in a parliamentary democracy. He also admitted that he was a member of the Congress Party technically even though he has voted against the Congress Party and in favour of the No Confidence Motion. He was invariably evasive to questions, which should have normally been in his knowledge. For instance, when he was put a question whether Ch. Bhajan Lal, his father, joined the Cabinet headed by Late Ch. Devi Lal in 1977, his reply was “I don’t know”. In response to a pointed question, his reply was that he does not remember when Haryana Janhit Congress (BL) Party was formed, then said probably it was formed in July, 2007. He admitted that he joined HJC(BL) Party in 2008 but said he does not remember the exact date. He said that he was elected as President of HJC(BL) Party on 2nd October, 2008 in a conference held in Himachal Bhawan, Chandigarh. He admitted the word ‘BL’ against the name of his party connotes his father Bhajan Lal but he said he did not join this party initially when it was formed in 2007, though it carried the word ‘BL’. It points out to a strange anomaly in his deposition. Mr. Kuldeep Bishnoi has not produced any record regarding his election as a President of HJC(BL) Party held in Himachal Bhawan on 2nd October, 2008. He says that there were 108 primary members of HJC(BL) Party who elected him as a President of the Party. When he was asked to give the names and designations of other office bearers, he replied that there was a long list of office bearers and he did not remember their names and addresses and did not have the list of names of the electors. He, however, admitted that he had a list, which he never produced. This is indicative of the fact that he did not want

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to disclose the list of the primary members-cum-delegates, who elected him as a President of HJC (BL) Party on 2nd October, 2008. It is also significant that the witnesses, who appeared for the respondents, had claimed that they were the same delegates, who had elected him as the President. This fact has not been disputed or doubted during their cross-examination. The above facts will show Shri Kuldeep Bishnoi’s ignorance about those facts which a man of that eminence will always remember. More so, it is strange that a person who has been a Member of Parliament and a Member of Legislative Assembly did not remember the names of his colleague office bearers. He showed ignorance regarding vital facts and exhibited strange lapse of memory. It has to be seen in the light of fact that 68 witnesses who appeared as witness for the respondents were never questioned regarding the fact whether they were the delegates-cum-primary members of HJC (BL) Party, at the time when Shri Bishnoi was elected as a President and at a time when a meeting was held at Karnal on 8th of November, 2009. The presumption will also be that the person who gathered at Karnal on 8th November, 2009 were the same delegates, who were initially part of the meeting held at Himachal Bhawan, Chandigarh and had elected him as a President. He has taken an excuse i.e. lapse of memory and offered to produce a list which he never did. He has also offered that he can send the manifesto of his party for the record, which he never sent. He categorically stated that he is a born congressman. It shows strange contradictions. There are numerous evasive replies in the deposition of Shri Kuldeep Bishnoi. (42) When Shri Kuldeep Bishnoi was specifically put a

question what were the conditions you wanted to lay down for supporting a political party his reply was again evasive. These conditions were within the party and cannot be disclosed.

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Withholding the reply indicates that conditions for merger were to be settled in anticipation of the merger of the two political parties. He also admitted in his cross-examination that he had met the Chief Minister, Haryana during the relevant period and he kept meeting the Chief Minister. Shri Kuldeep Bishnoi alleges that he had sent a fax message on 8th November, 2009 or so to the Speaker but the record of the office of Speaker shows that no such fax was received in his office. In these circumstances, there is no other option but to disbelieve Shri Bishnoi on this account. Similarly, when he was specifically asked what issues were discussed by him, when he met the Chief Minister, Haryana, he was again evasive and said that it was one of the several meetings he had and he did not want to disclose what transpired between them. Mr. Bishnoi stated that his party had authorized him to have one to one meeting with the Chief Minister to discuss all issues and claims and he had a copy of such a resolution signed by all the MLAs of his party. This document was not placed on record for the reason best known to him. He further stated that his party had authorized him to talk on all political issues with the Chief Minister. Obviously, the reply does not exclude the question of merger of the two political parties especially when in his deposition before me he said that any of the six MLAs could hold a meeting of the party. The lapse of memory claimed and admitted by Mr. Kuldeep Bishnoi is phenomenal. It is difficult to believe that Mr. Bishnoi, who has been a Member of Parliament, Member of Haryana Legislative Assembly and also the President of his party, does not know whether Ch. Bhajan Lal was a Minister in the Government of Ch. Devi Lal in 1977-79 and also whether his father Ch. Bhajan Lal remained Chief Minister of Haryana between 1979-1986. Showing ignorance of these vital facts compel me to conclude that Mr. Bishnoi does not come out

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straight with his deposition in this case and wants to withhold facts for the reasons best known to him. It is difficult to believe that when Mr. Kuldeep Bishnoi admits that he lived in Chandigarh but could not give the address of the house where he lived. When he was asked a specific question whether he stayed in House No.1, Sector 3-A, Chandigarh, his reply was “I don’t recollect”. This is a house earmarked for the Chief Minister, Haryana. In response to a later question, he admitted that he lived in that house and that house is earmarked for the Chief Minister of Haryana. It is a strange deposition on the part of a political leader, who has held high offices in the party and has been a parliamentarian and a legislator. It becomes more significant when he admits that he is a member of the Hindu Joint Family, which was headed by Ch. Bhajan Lal ji. His ignorance pertains to the period when Shri Bishnoi was major and mature enough to know and remember all those facts. It is surprising as to why Shri Kuldeep Bishnoi did not produce the documents, which he admits that he possesses and even offered to produce. It raises a presumption that the documents if produced would have gone against the contention and stand taken by him in this deposition as a witness. The record of the meeting of the HJC(BL) Legislature Party, which admittedly was with him, was not produced especially when question to this effect was put to him and is relevant for the present proceedings. (43) The requirement of law is that the best evidence

available should be produced before the Court/Tribunal. When the relevant evidence is withheld it raises a presumption that these documents would have gone against his contentions. (44) Mr. Satya Pal Jain, Senior Advocate has also raised

question of the morality in politics regarding defection. To my

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mind, this contention is highly misplaced in the present context when the petitioner himself admitted that he defected from the party on whose ticket he was originally elected and was consequently disqualified for defection by the then Lok Sabha Speaker, Shri Somnath Chatterjee. (45) Shri Satya Pal Jain, Senior Advocate, counsel for the

applicant cited an authority of our own High Court reported as ‘1997(4) R.C.R. (Civil) 519 [Ram Bilas Sharma v. Speaker, Haryana Vidhan Sabha, (P&H) (Full Bench)]’, which is a case of defection before the Amendment in the relevant part of Tenth Schedule of the Constitution of India and does not have remotest relevance to the controversy in issue therein the only question to be decided is whether there is merger of the two political parties or not? It was not an issue in the above-said authority quoted by Mr. Jain. Mr. Jain has also cited an authority of the Hon’ble Apex Court reported as ‘2006(11) SCC 1 (Jagjit Singh v. State of Haryana and others)’, where the basic point in issue was whether an opportunity has been given to the parties to lead evidence and put up their case. In this case, fullest opportunity was given to the parties to adduce evidence in the matter. The witnesses of parties were cross-examined by the counsel for the opposite party and no scope remains for raising any doubt regarding the observance of rules of natural justice. The above citations have no bearing on the

controversy in this case. The merger of the two political parties has been proved to a hilt as a fact on the basis of the facts and the evidence led by the parties. (46) A technical objection has been raised by one of the

counsel for the respondents regarding the defective verification of the affidavit filed in the petition. It is argued that the verification is in the applications is not in accordance with law

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because it is verified as ‘true to my knowledge and belief’. The argument is that a verification has to be either by knowledge or on belief. To my mind, this argument is too technical to affect the merits of the case. I will not take cognizance of this hypertechnical objection. (47) In the light of the above discussions and the fact

that 75 of the delegates-cum-primary members of a party out of 108 had unanimously decided regarding the merger of the two political parties, the merger of the two political parties is held to have been proved conclusively. No evidence has been produced by the applicant to say that the persons, who have deposed as a witness and claimed to be the delegates-cum-primary members were not genuine persons and were not delegates-cum-primary members as claimed by them. (48) It is very difficult to disbelieve the consistent

testimony of 68 persons who claimed themselves as delegatescum-primary members of HJC (BL) Party and have categorically stated that they have decided the merger of the two political parties in a meeting held at Karnal on 08.11.2009. It is to be seen in the light of the fact that admittedly, there were only 108 primary members-cum-delegates of the HJC (BL) Party and 75 of them had participated in the meeting held at Karnal on 08.11.2009. (49) It is also significant that my predecessor in office had

also accepted the factum of the merger of two political parties vide his orders dated 09.11.2009 and 10.11.2009. (50) In the light of the facts and discussions, I have no

option but to dismiss the petitions No.1 to 5 filed by Shri Kuldeep Bishnoi under Article 191 read with Tenth Schedule of the Constitution of India and the rules framed thereunder seeking disqualification of the respondents as a Member of the

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Haryana Vidhan Sabha on the ground of their allegedly given up membership of their original political party i.e. HJC (BL). The merger of the two political parties, namely Haryana Janhit Congress (BL) Party and Indian National Congress Party, has been proved as a fact and as such, all the petitions are hereby dismissed. Since petitions No.6 to 14 stood clubbed with petitions No.1 to 5 as there was a common question of law and fact involved, these petitions will also suffer the same fate as 1 to 5 and are hereby dismissed as well, as also no evidence was led in Petitions No.6 to 14 by the petitioners in the above petitions. They relied on the evidence put in by Shri Bishnoi in Petitions No.1 to 5, which were filed by Shri Bishnoi himself. It is pertinent to mention here that for the last several hearings in this case none was appearing on behalf of petitioners 6 to 14. (51) with law. (52) A copy of this order be placed on the file of each of The follow-up action may be taken in accordance

the 14 petitions. Place: Chandigarh Date: 13.01.2013 Sd/(KULDEEP SHARMA) Speaker, Haryana Vidhan Sabha. …… Place: Chandigarh Date: 13.01.2013 Sd/Sumit Kumar Secretary, Haryana Vidhan Sabha, Chandigarh

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Annexure-I

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Annexure-II

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