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3. In the writ petition, being W.P.No.27854 of 2017, the petitioner prayed for issuance of a writ of mandamus directing the first respondent to consider and pass orders forthwith on the petition dated 20.03.2017 filed by him seeking disqualification of respondent No.2 in this petition under Paragraph 2(1)(b) of the Tenth Schedule of the Constitution of India read with Rule 6 of the Disqualification Rules.
4. On 05.12.2016, the former Chief Minister of Tamil Nadu, Ms.J.Jayalalithaa died, after which, Mr.O.Panneerselvam of All India Anna Dravida Munnetra Kazhagam (AIADMK) was elected as Chief Minister of Tamil Nadu. On 05.02.2017, Mr.Panneerselvam resigned from the post of Chief Minister. Thereafter on 16.2.2017, Mr.Edappadi K.Palaniswami was sworn in as Chief Minister. On the same day, i.e., 16.2.2017, the then Governor of Tamil Nadu directed Mr.Palaniswami to prove majority support in his favour by way of floor test.
5. According to the petitioner, a whip was issued under the AIADMK party's seal directing the MLAs of AIADMK party to vote in favour of Mr.Palaniswami. On 18.2.2017, the Tamil Nadu Legislative Assembly was convened for the purpose of floor test. Mr.Palaniswami, the Chief Minister and the Leader of the Legislative Party, moved the motion that this house expresses its confidence on the Cabinet headed by the Chief Minister Mr.Palaniswami. The motion was put to vote and carried by 122 MLAs of the AIADMK who voted in favour of the motion.
25. Mr.Sibal emphasized that the statement in the counter-affidavit of Mr.S.Semmalai is contrary to his own sworn affidavit before the Election Commission of India. Mr.S.Semmalai has thus committed perjury in these proceedings.
26. Mr.Sibal referred to the counter-affidavit of Mr.S.Semmalai filed in W.P.No.27853 of 2017 viz., P.Vetrivel v. P.Dhanapal and others, wherein it is stated:
7.It is submitted that upon the sudden demise of Dr. J.Jayalalithaa, the Chief Minister of the State on 05.12.2016, a Ministry under the head of Mr.O.Panneerselvam was sworn in on 06.12.2016. Thereafter due to various circumstances which are in relation to persons who are not party before this Hon'ble Court, Mr.O.Panneerselvam was forced to resign as the Chief Minister on 05.02.2017. Thereafter, there were attempts made to make Mrs.V.K.Sasikala as the Chief Minister of the State and the said attempts had not fructified. Thereupon Mr.Edappadi K.Palaniswami was elected as the leader of AIADMK Legislative Party at a meeting held on 14.02.2017 at a Resort at Koovathur. The Respondents herein were not present in the said meeting and were not even issued notice for the said meeting. Admittedly the 11 persons mentioned in Paragraph 6 of the petition had not supported the resolution to appoint Mr.Edappadi K.Palaniswami as the Leader of the Legislative Party. Thereupon Mr.Edappadi K.Palaniswami sought to form the government with the support of 122 MLAs only. In fact the Respondents herein had claimed that they were the original AIADMK party in fact even while a whip was allegedly issued to each MLA independently, there was no direction or whip that was received by the Respondent herein from Mr.S.Rajendiran. The 122 MLA's who had supported Mr.Edappadi K.Palaniswami as the leader of the legislative party were bound by the direction whereas the respondents who had not signed the said memorandum or received any direction cannot be claimed to be under a direction from the party.
43. Mr.Sibal argued that mala fides in the action of the Speaker were writ large from the fact that no action was taken on the petition filed by the petitioners for disqualification of the respondent MLAs on 20.3.2017, for voting against the motion of the Chief Minister seeking vote of confidence on 18.2.2017. However, two factions lead by the Chief Minister, Mr.Palaniswami and Mr.O.Pannerselvam merged on 21.8.2017, after which 18 MLAs went to the Governor withdrawing support to the government headed by the Chief Minister, Mr.Palaniswami. The Chief Government Whip presented a petition for disqualification on 24.8.2017. On the same day, the Speaker issued notice to the 18 MLAs.