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(a) Precedents on Paras 2 to 6 of Sch X examined
24. There was fairly large volume of case laws that the parties relied on and most of the time was dealt on the examination of the decisions that have appeared under para 4(2). It should, therefore, be the time to turn into the relevant laws for how para 4(2) could be understood. All the counsel for the respondents derive their strength from the arguments on the effect of Para 4 as interpreted by this Court through a Full Bench decision in Baljit Singh Bhuller and another Vs. Hon. Speaker Punjab Vidhan Sabha, Punjab Vidhan Sabha and others Vol.CXVII (1997-3) PLR 367. It was a case of lone member of a Communist Party (UCPI) who decided to merge with the Congress-I party in the State Legislature. On a letter given by him that there had been a merger of the Communist Party with the Congress Party, the Speaker acceded to the letter and allowed the merger of the Communist Party with Congress-I legislative party. The Secretary of Punjab State Committee of UCPI approached the Speaker of the assembly that original political party UCPI never passed any resolution with regard to the merger and that the lone legislative party member had joined Congress party on his own and that he had incurred a disqualification to continue as a member of the legislative assembly because of his defection. After setting out the definitions of legislature party, a Full Bench of this Court held that Paragraph 2 provided for disqualification on the ground of defection and according to it, a member of the House belonging to any political party shall be disqualified from being a member of the house if he had voluntarily given up his membership of such political party or if he voted or abstained from voting in such house contrary to any direction issued by the political party to which he belonged. The Full Bench held that Paragraphs 3 and 4 were in the nature of exceptions to Paragraph 2. Para 3 saved the member of a legislative party from incurring disqualification if there was a split in the original party, while Para 4 saved a member from being disqualified if his original political party merged with another political party. Taking the logic to the farthest, the Full bench held on what was important and what support wholly the contention of the respondents as found in para 7 as follows:-

creates a legal fiction by incorporating a deeming provision......"

25. The effect of the Full Bench decision, therefore, would be that Clause 4(2) which provides for a fiction by introducing a deeming clause would make irrelevant any further enquiry. It is perfectly possible that a candidate who represented 2/3rd of the legislative party saved himself of the disqualification by the only fact that he or a group representing 2/3rd of the members of the legislative party declaring that they agreed to the merger by the original political party and the proof of such merger is deemed by the Speaker acting on the representation. If it however, turns out that the representation was not correct and the 2/3rd members had expressed what was against the decision of the original political party, say it did not favour merger, then the deeming has perforce to be reversed. The language of para 4 (2) presumes a decision of merger by the original political party and the 2/3rd members agreeing to such merger. If there was no merger outside, there was no question of saving the disqualification for the members of the legislature party. But that was not how the Full Bench interpreted the provision. The effect to the decision finds expressed in para 11 where the Full Bench ruled that the 2nd respondent being the lone member of the UCPI decided to merge with Congress-I party in the State Legislature his case squarely fell within the scope and ambit of sub paragraph 2 of paragraph 4. The Full Bench went as far as to state in the penultimate paragraph that proceedings before the Speaker were protected from being questioned or challenged on the ground of alleged irregularity of procedure under sub-paragraph 2 of paragraph 6 to Tenth Schedule read with Article 212(1) of the Constitution and purported to apply what was stated by the Supreme Court in Kihoto Hollohon Vs. Zachillu (supra) that these provisions attract an immunity from doing mere irregularities of procedure and if the Speaker had to interpret sub para 2 of para 4, it did not involve any determination of disputed fact. In fact, it is precisely a disputed question that always comes for hearing in an adjudication under para 6. The strength of reasoning of a Full Bench, I would, under normal circumstances, have no power to question but this reasoning found reflected in yet another judgment delivered by the same Full Bench on the same day in Madan Mohan Mittal, MLA Vs. The Speaker, Punjab Vidhan Sabha, Chandigarh and others Vol.CXVII (1997-3) PLR 374 was brought under judicial scrutiny by the Supreme Court in Jagjit Singh Vs. State of Haryana and others (2006) 11 SCC 1 and adversely commented. It should become necessary to examine the facts and the decision in Madan Mohan Mittal (supra).

The Supreme Court was actually finding the judgment in Madan Mohan Mittal's case to have not laid down a correct law, the decision that was in accord with the logic propounded in Baljit Singh Bhuller's case that a lone member in a legislature party could cause a deeming merger of the original political party and that was sufficient by virtue of para 4(2). The Supreme Court applied the reasoning expounded in G. Vishwanathan Vs. Hon'ble Speaker Tamil Nadu Legislative Assembly PANKAJ KUMAR(1996) 2 SCC 353 to dispel the view expressed in Madan Mohan Mittal (supra) to be wrong. It quoted in G. Vishwanathan:-

It observed, after the discussion that the Punjab case (i.e. Madan Mohan Mittal) was not correctly decided. The congruence of the decision of the Legislature Party to an earlier decision of the original political party regarding merger has to be complete and established as such. After all, "A legislature party is not a separate entity. It is only a wing within the original political party" (Ram Bilas Sharma Vs. Speaker, Haryana Vidhan Sabha 1997(4) RCR (Civil) 519, 1997 (3) PLR 318).