PANAJI
Goa legislative assembly Speaker Rajesh Patnekar who on Tuesday dismissed the disqualification plea filed by MGP's Sudin Dhavlikar has backed his order citing the provision in para 4(2) of the Xth Schedule of the Constitution which deems it to be a merger of a political party if 2/3rds of the legislature party of the merging party joins.
"It is not in dispute that on 27.03.2019 the strength of the MGP was reduced from 3 to 1 because 2 MLAs that constituted 2/3rd strength merged into the BJP," Patnekar said in his order.
The order cites clause (2) of para 4 of the Xth Schedule and goes on to state: "The above paragraphs, protects the MLAs from disqualification if 2/3rds of the MLAs of a Legislature Party decide to merge with another political party."
Patnekar's order also cited the past judgements of the full bench of Punjab and Haryana High Court and a Division Bench of Guwhati High Court to state: "The above two judgements clearly state that it is not required that the decision of the political party to merge must be proved to give effect to the legal fiction created under para 4 (2) of the Xth Schedule of the Constitution of India."
Giving primacy to the legislator over the political party, Patnekar's order further states: "The elected representatives namely the MLAs express the will of the people as well as the party and the Constitution has given paramount importance to the decision of the elected MLAs and their wisdom as regards merger. I find that once 2/3rd of the MLAs decide to merge, there is nothing further that is required to be proved for the purpose of the Xth Schedule.
“This fact whether there was a decision of merger by the political party (MGP) with BJP required evidence to be led by the parties. Without the evidence and witnesses of the parties this fact (that there was also a merge of the original party) cannot be decided,” Patnekar said in his order.
“I find that the argument of the petitioner regarding the merger of the political party requires oral evidence and cannot be decided without leading evidence. The petitioner has neither led evidence nor requested for leading any evidence. On the contrary the petitioner himself opposed the application of the respondents to lead evidence. The petitioner who claims to be the leader of the party should have been in the best position to lead evidence on this question. Surprisingly the petitioner has chosen not to lead any evidence on this aspect,” Patnekar noted.
“Although the petitioner has vaguely stated in the petition that the bye-laws of the party were not followed at the time of the decision of merger. However during the hearing it was not argued by the petitioner in what manner and which of the bye-laws were not followed. Even the bye-laws are not produced on record. As such this aspect is also not substantiated by the petitioner and cannot be gone into,” Patnekar also said.
“In the absence of any evidence no finding on disputed questions can be given in this case. It is a seriously disputed question whether there is a merger or not in these proceedings. In the absence of any evidence being led it must be held that the petitioner failed to prove this case. Such cases cannot be decided only on pleadings,” the Speaker ruled.
Patnekar on Tuesday had dismissed the two disqualification petitions filed by the Congress and the MGP against their respective MLAs who had switched over to the BJP.
