In his petition, Barot has said that, going by the law, the two MLAs should have first split their party, formed a separate group in the House, obtained recognition of the split from the Speaker, and then merged with the Congress. But they directly joined the Congress, without following this procedure, Barot has argued.

Responding to Barot's petition, the Speaker has issued notices to Rajendra singh Patel and Raman Chaudhary, directing them to send their replies by the first week of March. Copies of the notices have been sent to Congress Legislature Party leader Amar singh Chaudhary and BJP leader Keshubhai Patel.

Rajendra singh Patel, who represents Godhra, and Raman Chaudhary, who was elected from Mangrol in Surat district, had met the Speaker, along with senior Congress leaders, including Amar singh Chaudhary, on November 9 and submitted him a joint letter.

The letter reportedly said that they had left the Janata Dal to join the Congress and they be allowed to do so, for they constituted more than one-third of the strength in the four-member JD group in the Assembly, as required under the Tenth Schedule of the Constitution. On the same day, the CLP leader also handed a letter to the Speaker, informing that the two legislators had been admitted into the Congress.

Barot's contention is that the MLAs' action amounted to defection, as defined in the Tenth Schedule and they deserved to be disqualified.

A senior Congress leader admitted that the party did not consult legal experts before admitting the two MLAs. ``It seems we erred'', he said, adding that top lawyers were now being consulted to prepare the replies and argue the case before the Speaker.

According to a constitutional expert, the Tenth Schedule recognises a direct merger only when the breakaway MLAs constitute at least two-thirds of the total strength of the parent party. If the number of break away MLAs is less, but more than one-third, then a formal split must precede the merger. In this case, the number is less than two-thirds of the original strength of the Janata Dal in the State Assembly.