DR. MAHACHANDRA PRASAD SINGH v. CHAIRMAN, BIHAR LEGISLATIVE COUNCIL AND ORS

Citation: [2004] SUPP. 5 S.C.R. 692

Court: Supreme Court of India

Bench: R.C. LAHOTI, G.P. MATHUR, P.K. BALASUBRAMANYAN

Case summary

DR. MAHACHANDRA PRASAD SINGH v. CHAIRMAN, BIHAR LEGISLATIVE COUNCIL AND ORS.pdf

Judgment text

DR. MAHACHANDRA PRASAD SINGH v. CHAIRMAN, BIHAR LEGISLATIVE COUNCIL AND ORS. - OCTOBER 27, 2004 [R. C. LAHOTI, CJ. , G. P. MATHUR AND ?. K. BALASUBRAMANYAN, JJ.

] Constitution of India, 1950-Tenth Schedule paragraph 2(J)(a) and Article 191 (2): Bihar legislative Council Members (Disqualification on ground of Defection) Rules, 1994-Rules 6 and 7: Disqualification on the ground of defection-Member of legislative Council as candidate of one party-Subsequently, contesting parliamentary election as candidate ofanother party/independent candidate-Petition under the Rules-Disqualification from the membership of House by Chairman of the Council as having voluntarily given up membership ofprevious party- Copy of petition given to the member-Opportunity of personal hearing given but not availed by the member-Writ Petition-Plea ofnon-compliance ofRules and violation ofprinciple ofnatural justice-Held: Member incurred disqualification under paragraph 2(/)(a) as he voluntarily gave up membership of his previous party-The Rules being directory in nature and being in the domain of procedure are intended to facilitate holding of inquiry and not to frustrate or obstruct the same by introduction of technicalities-Rules, being subordinate legislation and delegated legislation cannot have the effect of curtailing the content and scope of substantive provision i.

e. Tenth Schedule-Hence petition cannot be rendered invalid affectingjurisdiction ofChairman on the ground ofnon-compliance ofRules- In the facts ofthe case principle ofnaturaljustice not violated-Administrative law-Delegated legislation. Petitioner was elected as Member of Legislative Council (MLC) as a candidate of Congress party. Thereafter he contested parliamentary election as independent candidate. Secretary of the Legislative Council sent a letter to the petitioner that he had received information that he being a member of Congress party in the Council had contested parliamentary election as independent candidate and sought clarification from him. Thereafter a petition fl 692 M. P. SINGHv. CHAIRMAN,BIHARLEGISLATIVECOUNCIL 693 was given to the Chairman by a member of Legislative Council to the effect that in view of the above given facts petitioner had become disqualified for being a member ofthe House. The Secretary asked the petitioner to give reply to the petition.

Copy of the petition was enclosed therewith. The Secretary twice afforded him opportunity for personal hearing, but the petitioner did not avail it. Chairman of the Council, thereafter passed the impugned judgment holding that the petitioner having contested parliamentary election as independent candidate being a member of the Legislative Council as a candidate ofCongress party, had voluntarily given up his membership of the Congress party and therefore he was disqualified for being a member of the House in view of paragraph 2(1)(a) of the Tenth Schedule r/w Article 191(2) of the Constitution of India and the seat held by him in the House became vacant Petitioner filed Writ Petition under Article 32 of the Constitution.

He contended that in absence ofcompliance of Rules 6 and 7 of Bihar Legislative Council Members (Disqualification on Ground of Defection) Rules, 1994, the assumption ofjurisdiction by the Chairman in initiating the proceedings was illegal; that there was violation of principles of natural justice as the material relied upon by the Chairman was not disclosed to the petitioner nor a proper opportunity of personal hearing was afforded to him; and that petitioner had not voluntarily given up membership of political party by contesting the parliamentary election as an independent candidate and, therefore, he had not incurred any disqualification within the meaning of Paragraph 2(l)(a) of the Tenth Schedule. The other Writ Petitioner, a member of Legislative Council elected as a candidate of Congress Party had contested Parliamentary election as a candidate ofSamajwadi Party.

Petition for disqualification was filed and after giving him copy of petition and opportunity for personal hearing, Chairman ofthe Legislative Council held him disqualified for being member ofthe House under Paragraph 2(l)(a) of the Tenth Schedule r/w Article 191(2) of the Constitution. Dismissing the Writ Petitions, the Court HELD: I. I. The petitioner has incurred the disqualification under Paragraph 2(l)(a) of Tenth Schedule of the Constitution of India and the decision of the Chairman is perfectly correct. In view of explanation (a) appended to sub-paragraph (1) of paragraph 2 of the Tenth Schedule, the petitioner shall be deemed to belong to Indian National Congress Party by which he was set up as a candidate for contesting the election for member of Legislative Council in the year 1998. By contesting the parliamentary election as an independent candidate, he voluntarily gave up the membership of the Congress Party.

Even in the absence ofa formal resignation from membership an inference can be drawn from the conduct of a member that he has voluntarily given up his membership ofthe political party to which he belongs. (704-A-G] 1. 2. Bihar Legislative Council Members (Disqualification on Ground of Defection) Rules, 1994 being delegated legislation are subject to certain fundamental factors. Underlying the concept of delegated legislation is the basic principle that the legislature delegates because it cannot directly exert its will in every detail. All it can in practice do is to lay down the outline. This means that the intention of the legislature, as indicated in the outline (that is the enabling Act), must be the ? Jrime guide to the meaning of delegated legislation and the extent of the power to make it. The true extent of the power governs the legal meaning of the delegated legislation.

The delegate is not intended to travel wider than the object of the legislature; The delegate's function is to serve and promote that object, while at all times remaining true to it. That is the rule of primary intention. Power delegated by an enactment does not enable the Authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorize the provision ofsubsidiary means of carrying into effect what is enacted in the statute itselfand will cover what is incidental to the execution of its specific provision. But such a power will not support attempts to widen the purposes of the Act, to add new and different means ofcarrying them out or to depart from or vary its ends. The aforesaid principle will apply with greater rigour where rules have been framed in exercise of power conferred by a constitutional provision.

No rules can be framed which have the effect ofeither enlarging or restricting the content and amplitude of the relevant constitutional provisions. Similarly, the rules should be interpreted consistent with the aforesaid principle. (707-C-GI 1. 3. The purpose and object of the Rules is to facilitate the job of the Chairman in discharging his duties and responsibilities conferred upon him by paragraph 6, namely, for resolving any dispute as to whether a member of the House has become subject to disqualification under the Tenth Schedule. The Rules being in the domain of procedure, are intended to facilitate the holding of inquiry and not to frustrate or obstruct the same by introduction M. P. SINGH v. CHAIRMAN, BIHARLEGISLATIVECOUNCIL 695 of innumerable technicalities. Being subordinate legislation, the Rules cannot make any provision which may have the effect ofcurtailing the content and scope of the substantive provision, namely the Tenth Schedule.

There is no provision in the Tenth schedule to the effect that until a petition which is signed and verified in the manner laid down in the CPC for verification of pleadings is made to the Chairman or the Speaker of the House, he will not get the jurisdiction to give a decision as to whether a member of the House has become subject to disqualification under the Schedule. [709-B-E] 1. 4. There is no /is between the person moving the petition and the member of the House who is alleged to have incurred a disqualification. It is not an adversarial kind oflitigation where he may be required to lead evidence. Even if he withdraws the petition it wili make no difference as the duty is cast upon the Chairman or the Speaker to carry out the mandate of the constitutional provision, viz. the Tenth Schedule. The object ofRule 6 is that frivolous petitions making false allegations may not be filed in order to cause harassment.

It is not possible to give strict interpretation to Rules 6 and 7 otherwise the very object of the Constitution (Fifty-second Amendment) Act by which Tenth Schedule was added would be defeated. A defaulting legislator, who has otherwise incurred the disqualification under paragraph 2, would be able to get away by taking the advantage ofeven aslight or insignificant error in the petition and thereby asking the Chairman to dismiss the petition under sub-rule (2) of Rule 7. The validity of the Rules can be sustained only if they are held to be directory in nature as otherwise, on strict interpretation, they would be rendered ultra vires. (709-F-G; 710-AJ 1. 5. Provisions of Rules 6 and 7 are directory in nature and on account of non-filing of an affidavit as required by sub-rule (4) ofOrder VI Rule 15 CPC, the petition would not be rendered invalid nor the assumption of jurisdiction by the Chairman on its basis would be adversely effected or rendered bad in any manner. [710-E-FJ Ravi S.

Naik v. Union ofIndia, [1994) Supp. 2 SCC 641, relied on. 1. 6. The Chairman of the Bihar Legislative Council had afforded ample opportunity of personal hearing to the petitioner but he himself did not avail of it. Regarding the complaint of non-supply of the copy of the letter sent by leader of Indian National Congress in Bihar Legislative Council, whereby he had informed that the petitioner had ceased to be a member of Indian National Congress for violating the party discipline is concerned, the only relevant fact stated therein is that the petitioner had been elected as a member of the Bihar Legislative Council on a Congress ticket but he had contested the parliamentary election as an independent candidate. These facts have never been disputed by the petitioner in his replies, which he submitted before the Chairman ofthe Legislative Council and have also been admitted in the present Writ Petition.

Therefore, the non-supply of copy of the letter of the leader of the Congress Legislative Party has no bearing at all as no prejudice can be said to have been caused to the petitioner and consequently in the facts of tlae present case, no principle of natural justice can be said to have been violated. [712-E-GJ 2. In the second Writ Petition, petitioner had admitted that he had been elected as member of the Legislative Council in the year 1998 as a candidate of the Indian National Congress party and that he filed his nomination papers for contesting the parliamentary election held in May 2004 as a candidate of Samajwadi Party. This factual position was not disputed by the petitioner in the replies given by him to the Chairman ofthe House. In such circumstances, there cannot be even a slightest doubt that the petitioner has volunt~rily given up his membership of the Indian National Congress party.

No exception can, therefore, be taken to the decision taken by the Chairman of the House that the petitioner has incurred the disqualification for being a member of the House under paragraph 2(1)(a) of the Tenth S~hedule and Article 191(2) of the Constitution and the seat held by him had fallen vacant. [714-B-DJ CIVIL ORIGINAL JURISDICTION: Writ Petition (C) No. 322 of2004. (Under Article 32 of the Constitution of India. ) WITH W. P. (C) No. 370 of2004. P. S. Mishra, S. Chandra Shekhar, Upendra Mishra, Tathagat H. Vardhan, Amitesh Chandra Mishra, Dhruv Kr. Jha, Ms. Renuka Sharma and Ms. T. Swarupa Reddy with him' for the Petitioner. Dipankar P. Gupta, Navin Prakash, Anurag Sharma and Rituraj Biswas with him for the Respondent. The Judgment of the Court was delivered by G. P. MATHUR, J. 1.

This petition, under Article 32 ofthe Constitution, has been filed for quashing the order dated 26th June, 2004 of Chairman of Bihar Legislative Council holding that the petitioner is disqualified for being a member of the House under paragraph 2(1)(a) of the Tenth Schedule read M. P. SINGHv. CHAIRMAN, BIHAR LEGISLATIVECOUNCIL[G. P. MATHUR,J. ] 697 with Article 191(2) of the Constitution and consequently the seat held by him in the Bihar Legislative Council had fallen vacant from the said date. 2. The petitioner was elected as a member of the Bihar Legislative Council (MLC) from Tirhut Graduate Constituency as a candidate of Indian National Congress. The notification for holding elections to Fourteenth Lok Sabha was issued in March, 200 I. The petitioner contested the said election from Maharajganj Parliamentary Constituency as an independent candiJate.

Shri Salman Rageev, a member of Bihar Legislative Council, sent a petition to the Chairman ofthe Legislative Council on 10th June, 2004 stating, inter alia, that the petitioner, who was a member of the Congress Party, had contested the parliamentary election from Maharajganj Constituency as an independent candidate and consequently in view of the provisions of the Tenth-Schedule to the Constitution he had become disqualified for being a member of the House. The petitioner was asked to submit his explanation vide letter dated 12th June, 2004 of the Secretary of the Council.

After considering the explanation offered by the petitioner, the Chairman ofthe Legislative Council passed the impugned order dated 26th June, 2004 holding that the petitioner had contested the election for Bihar Legislative Council in the year 1998 as a candidate of the Congress Party and was a member ofthe said political party and that he had contested the Lok Sabha Election, 2004, as an independent candidate, and thus he had voluntarily given up his membership of the Congress party and, therefore, he was disqualified for being a member of the House in view of paragraph 2(l)(a) of the Tenth Schedule read with Article 191 (2) of the Constitution and the seat held by him in the House has become vacant. 3. Shri P. S. Mishra, learned senior counsel, has raised three contentions in assailing the order dated 26th June, 2004 passed by the Chairman, Bihar Legislative Council.

The first submission is that in absence of compliance of Rules 6 and 7 of the Bihar Legislative Council Members (Disqualification on ground of Defection) Rules, 1994, the assumption of jurisdiction by the Chairman in initiating the proceedings, whereunder the petitioner was held to be disqualified for being a member of the House, was illegal. The second submission is that there was violation of principles of natural justice as the material relied upon by the Chairman was not disclosed to the petitioner nor a proper opportunity of personal hearing was afforded to him. The third and the last submission is that the petitioner had not voluntarily given up membership of a political party by contesting the Lok Sabha Election as an independent candidate and, therefore, he had not incurred any disqualification within the meaning of paragraph 2(l)(a) of the Tenth Schedule. 4.

Before examining the contentions raised by the learned counsel for the petitioner, it is necessary to look to the historical background in which the Tenth Schedule was added to the Constitution. On 8th December, 1967 the Lok Sabha passed a unanimous resolution constituting a Committee to consider in all its aspects the problem of legislators changing their allegiance from one party to another and their frequent crossing of the Floor and make recommendations in this regard. This Committee known as "Committee on Defections" in its report dated 7th January, 1969 highlighted the alarming rise in change of party allegiance by legislators. Compared to roughly 545 cases in the entire period between the First and Fourth General Elections, at least 438 defe r holding that a member of a House has incurred a disqualification under Clause (b) of paragraph 2(1) findings on several aspects will necessarily have to be recorded.

Similarly, for application of paragraph 4, inquiry has to be made whether the original political party merged with another political party, whether the member of the House has become member of such other political party or, as the case may be, of a new political party formed by such merger or whether he has not accepted the merger and opted to function as a separate group. 16. Sub-rule (I) of Rule 6 says 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 the said Rule and sub-rule (6) of the M. P. SINGHv. CHAIRMAN, BIHARLEGJSLATIVECOUNCIL[G. P. MATHUR,J. ] 709 same Rule provides that every petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for the verification ofpleadings. The heading of Rule 7 is 'PROCEDURE".

Sub-rule (I) of this Rule says that on receipt of petition under Rule 6, the Chairman shall consider whether the petition complies with the requirement of the said Rule and sub-rule (2) says that if the petition does not comply with the requirement of Rule 6, the Chairman shall dismiss the petition. These rules have been framed by the Chairman in exercise ofpower conferred by paragraph 8 of Tenth Schedule. The purpose and object of the Rules is to facilitate the job of the Chairman in discharging his duties and responsibilities conferred upon him by paragraph 6, namely, for resolving any dispute as to whether a member of the House has become subject to disqualification under the Tenth Schedule. The Rule being in the domain of procedure, are intended to facilitate the holding of inquiry and not to frustrate or obstruct the same by introduction of innumerable technicalities.

Being subordinate legislation, the Rules cannot make any provision which may have the effect of curtailing the content and scope of the substantive provision, namely, the Tenth Schedule. There is no provision in the Tenth Schedule to the effect that until a petition which is signed and verified in the manner laid down in the CPC for verification of pleadings is made to the Chairman or the Speaker of the House, he will not get the jurisdiction to give a decision as to whether a member of the House has become subject to disqualification under the Schedule. Paragraph 6 of the Schedule does not contemplate moving of a formal petition by any person for assumption ofjurisdiction by the Chairman or the Speaker ofthe House. The purpose of Rules 6 and 7 is only this much that the necessary facts on account of which a member of the House becomes disqualified for being a member of the House under paragraph 2, may be brought to the notice of the Chairman.

There is no /is between the person moving the petition and the member of the House who is alleged to have incurred a disqualification. It is not an adversarial kind of litigation where he may be required to lead evidence. Even if he withdraws the petition it will make no difference as the duty is cast upon the Chairman or the Speaker to carry out the mandate of the constitutional provision, viz. the Tenth Schedule. The object of Rule 6 which requires that every petition shall be signed by the petitioner and verified in the manner laid down in the CPC for the verification of pleadings, is that frivolous petitions making false allegations may not be filed in order to cause harassment. It is not possible to give strict interpretation to Rules 6 and 7 otherwise the very object ofthe Constitution (Fifty-second Amendment) Act by which Tenth Schedule was added would be defeated.

A defaulting legislator, who has otherwise incurred the disqualification under paragraph 2, would be able to get away by taking the advantage of even a slight or insignificant error in the petition and thereby asking the Chairman to dismiss the petition under sub-rule (2) of Rule 7. The validity of the Rules can be sustained only if they are held to be directory in nature as otherwise, on strict interpretation, they would be rendered ultra vires. 17. The petition filed by Shri Salman Rageev was signed and verified in the following manner : "All the facts stated in this petition are true and correct to my knowledge and belief and no part of it is false. Sd (Salman Rageev) M. L. C. 10. 06. 2004" "18...... There cannot be any dispute that sub-rules (I), (2) and (3) of Order VI Rule 15 CPC were complied with.

Learned counsel for the petitioner has, however, laid great emphasis on the fact that Shri Salman Rageev had not filed any affidavit in support of his petition and consequently the provisions of sub-rule (4) of Order VI Rule 15 CPC which provides that the person verifying the pleadings shall also furnish an affidavit in support of his pleadings were not complied with. For the reasons stated earlier, we are of the opinion that the provisions of Rules 6 and 7 are directory in nature and on account of non-filing of an affidavit as required by sub-rule (4) of Order VI Rule 15 CPC, the petition would not be rendered invalid nor the assumption of jurisdiction by the Chairman on its basis would be adversely effected or rendered bad in any manner. A similar contention was raised before a Bench presided by Venkatachaliah, C. J. in Ravi S. Naik v. Union ofIndia, [1994) Supp. 2 SCC 641, but was repelled. The relevant portion of para 18 of the reports is being reproduced below "18.............

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 (l) 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 M. P. SINGHv. CHAIRMAN, BIHARLEGISLATIVECOUNCIL[G. P. MATHUR,J. ] . 7J J scrutiny in view of sub-paragraph (2) of paragraph 6 as construed by this Court in Kihata Hallahan case [ 1992] Supp 2 SCC 65 l. Moreover, the field of judicial review in respect of the orders passed by the Speaker under sub-paragraph (I) 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 review of the order ofthe Speaker in view of the finality clause contained in sub-paragraph (I) of paragraph 6 of the Tenth Schedule as construed by this Court in Kihata Hallahan case. " 19. Shri Mishra has next subm'.

tted that the Chairman of the Bihar Legislative Council did not afford an opportunity of personal hearing to the petitioner and he also relied upon certain material, copy of which was not furnished to the petitioner and consequently the rules of natural justice have been violated. We do not find any substance in the contention n>ised. Initially, the Secretary ofthe Bihar Legislative Council sent a letter dated 19th May, 2004 to the petitioner stating that the petitioner had contested the election for Bihar Legislative Council as a candidate of Indian National Congress and that information had been received that he had contested the Parliamentary Election, 2004 as an independent candidate. Attention of the petitioner was invited to Article 191 (2) and Tenth Schedule to the Constitution of India and he was asked to submit his clarification within seven days.

The petitioner gave a reply to this letter on 25th May, 2004 wherein he requested to supply him a photocopy of the information received by the Secretariat of Bihar Legislative Council and prayed for 15 days' time to explain his position after obtaining advice from legal experts. Thereafter, Shri Salman Rageev gave a petition to the Chairman on 10th June, 2004, details of which have already been given earlier. In pursuance of this petition, the Secretary of the Bihar Legislative Council sent a letter dated 12th June, 2004 to the petitioner stating the relevant facts and asking him to submit his written reply to the Chairman of the Council within one week. The copy of the petition submitted by Shri Salman Rageev was enclosed.

The petitioner gave a reply to this petition on 18th June, 2004, wherein he only raised objection about the maintainability of the petition alleging non-compliance ofsub-rule (6) of Rule 6 of the Rules and prayed for its dismissal under sub-rule (2) of Rule 7 of the Rules. He also prayed for opportunity of personal hearing on the aforesaid points. He sent another letter to the Secretary of the Legislative Council on 19th June, 2004, wherein he reiterated the same grounds. A communication was then sent by the Secretary on 19th June, 2004 informing the petitioner that he should appear in the office of the Chairman at 1. 30 p. m. on 22nd June, 2004 for a personal hearing. The petitioner then addressed a letter to the Secretary on 22nd June, 2004, wherein he again pressed for rejection of the petition under sub-rule (2) of Rule 7 of the Rules and also sought 15 days' time in order to obtain advice from legal experts.

A reply was then sent by the Secretary on 22nd June, 2004 informing him that the Chairman had fixed 1. 30 p. m. on 25th June, 2004 for personalhearing and he should appear in his office at the said time. On 25th June, 2004, the petitioner sent a letter to the Secretary that he had fallen sick and prayed for 10 days' further time. The facts stated above would show that the Chairman of the Bihar Legislative Council had afforded ample opportunity of personal hearing to the petitioner but he himself did not avail of it. Regarding the complaint of non-supply of the copy of the letter sent by Prof.

Arun Kumar, leader of Indian National Congress in Bihar Legislative Council, whereby he had informed that the petitioner Shri Mahachandra Prasad Singh had ceased to be a member of Indian National Congress for violating the party discipline is concerned, the only relevant fact stated therein is that the petitioner had been elected as a member of the Bihar Legislative Council on a Congress ticket but he had contested the parliamentary election as an independent candidate. These facts have never been disputed by the petitioner in his replies, which he submitted before the Chairman of the Legislative Council and have also been admitted in paragraphs 5 and 7 in the present writ petition. Therefore, the non-supply of copy of the letter of the leader of the Congress Legislative Party has no bearing at all as no prejudice can be said to have been caused to the petitioner and consequently in the facts of the presen_t case, no principle of natural justice can be said to have been violated. 20.

The third submission of Shri Mishra has hardly any substance. ln view of explanation (a) appended to sub-paragraph (1) of paragraph 2 of the Tenth Schedule, the petitioner shall be deemed to belong to Indian National Congress Party by which he was set up as a candidate for contesting the election for member of Legislative Council in the year 1998. By contesting the parliamentary election as an independent candidate, he voluntarily gave up the membership of the Congress Party. In G. Viswanathan and Ors. v. Hon 'hie Speaker Tamil Nadu Legislative Assembly and Ors. , (supra), the Bench quoted with approval the observations made in Ravi S. Naik v. Union ofIndia, (supra) in para 11 of the reports that even in the absence of a formal resignation from membership, an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to whicl! be belongs.

On the facts of the present case, it c<innot be said that the finding arrived at by the Chairman ofthe Legislative Council that · the petitioner gave up the membership of the Indian National Congress Party to which he belonged is one whiCh could not reasonably and possibly have been arrived at. 21. For the reasons discussed above, there is no merit in the writ petition and the same is hereby dismissed with costs. CIVIL WRIT PETITION NO. 370 OF 2004 Shiva Nandan Prasad Singh ..... Petitioner v. Hon. Chairman, Bihar Legislative Council and Ors. ... Respondents I. The petitioner was elected as member of Bihar Legislative Council as a candidate of Indian National Congress Party in 1998. He filed his nomination papers for contesting the parliamentary election held in May, 2004 as a candidate of Samajwadi party. The Secretary of the Legislative Council sent a letter dated 19th May, 2004 asking the petitioner to clarify his position.

On 12th June, 2004, another letter was sent to him asking him to submit his explanation on the basis of a petition filed by Shri Salman Rageev on 10th June, 2004. The letter was accompanied by the copy of the petition. The petitioner gave a reply on 18th June, 2004 raising objection regarding noncompliance of Rules 6 and 7(2) of the Rules. The Chairman fixed 22nd June, 2004 for personal hearing, on which date the petitioner appeared and made request for some more time, on which 25th June, 2004 was fixed. Thereafter, the Chairman passed the impugned order dated 26th June, 2004 holding that the petitioner is disqualified for being a member of the House under paragraph 2(1 )(a) of the Tenth Schedule and Article 191(2) of the Constitution and the seat held by him in the Council had become vacant. · 2 No new point has been urged by Shri P. S. Mishra in the present case.

It is admitted in paras 4 and 6 of the writ petition that the petitioner had been elected as member of the Legislative Council in the year 1998 as a candidate of the Indian National Congress party and that he filed his nomination papers for contesting the parliamentary election held in May 2004 as a candidate of Samajwadi Party. This factual position was not disputed by the petitioner in the replies given by him to the Chairman of the House. In such circumstances, there cannot be even a slightest doubt that the petitioner has voluntarily given up his membership of the Indian National Congress party. No exception can, therefore, be taken to the decision taken by the Chairman of the House that the petitioner has incurred the disqualification for being a member of the House under paragraph 2(l)(a) of the Tenth Schedule and Article 191(2) of the Constitution and the seat held by him had fallen vacant. 3. The writ petition lacks merit and is dismissed with costs. K. K. T.

Writ Petitions dismissed.