Pravinji Shakraji Thakore And 3 … vs State Of Gujarat And 4 Ors. on 15 May, 2008

JUDGMENT

C.K. Buch, J.

1. I have heard Mr. Yatin N. Oza, learned Sr. Advocate appearing with Mr. Rajesh Savjani for petitioners in both the petitions, Mr. Satyam Chhaya, learned AGP for the respondent State and Mr. Tushar Mehta, learned Counsel appearing for respondent No. 3 in both the petitions.

2. Rule. Mr. Satyam Chhaya, learned AGP, Mr. Pinakin Raval and Mr. Tushar Mehta, learned Counsel waive service of Rule on behalf of the respective respondents. By the consent of the parties, both these petitions are finally disposed of.

3. Both these petitions are filed by 4 members of Gandhinagar District Panchayat, holding their posts as Member of District Panchayat, on account of their victory in the polls conducted by the Election Commission. Two different proceedings have been adjudicated simultaneously by the Designated Officer appointed under the Gujarat Provision for Disqualification of Members of Local Authorities for Defection Act, 1986 [hereafter referred to as “the said Act”] read with provisions of Gujarat Provisions for Disqualification of Members of Local Authorities for Defection Rules, 1989 and Amendment Rules, 2007 [hereafter referred to as “the Amendment Rules, 2007”]. The petitioners are common in both these petitions and they have brought similar factual and legal issues for determination. In Special Civil Application No. 5505 of 2008, the petitioners have challenged the finding recorded by the Designated Officer, dated 24th March, 2008 in Application No. 32 of 2008 filed by Chavda Pratapsinh Laxmansinh, respondent No. 3 in the said petition. In the application submitted before the Designated Officer, the said respondent No. 3 as applicant of the said application, sought for declaration of disqualification of present 4 petitioners on the ground of defection under Section 3 of the said Act and the relevant Rules. It is alleged that Member-Secretary of Gujarat Khadi Gramodhyog Board is appointed as Designated Officer. It is prayed that 4 petitioners herein, be declared as disqualified from the membership of District Panchayat in exercise of powers vested under Section 6 of the said Act. Respondent No. 3 initially had filed a petition invoking jurisdiction of this Court under Article 226 of the Constitution of India with a prayer that the petitioners of both these petitions may be restrained from participating in any meeting of Gandhinagar District Panchayat and for that necessary directions or order may be issued to the respondents of that petition. Reference of filing of substantive petition by the respondent No. 3 being Special Civil Application No. 2595 of 2008 has been made during the course of oral submissions and the same has been referred in the record of the present proceedings. That petition was moved in reference to disqualification Application No. 32 of 2008.

4. In Special Civil Application No. 5740 of 2008, the petitioners have challenged the legality and validity of the very order, i.e. common order passed by the Designated Officer dated 24th March, 2008 in reference to Application No. 33 of 2008. Application No. 33 of 2008 was moved by Kalusinh P. Bihola, one of the elected members of the Gandhinagar District Panchayat and respondent No. 3 of Special Civil Application No. 5740 of 2008. As two different applications were moved by two different members of Gandhinagar District Panchayat against the petitioners of both the present petitions to declare them as disqualified as members of the District Panchayat, the said two applications were heard and decided by the Designated Officer simultaneously and both of them were disposed by common order dated 24th March, 2008.

5. Both these petitions are filed challenging the said common order dated 24th March, 2008 passed by the Designated Officer deciding disqualification Application Nos. 32 of 2008 and 33 of 2008, which were preferred by respondent No. 3 of each of these petitions. It is relevant to note that the parties have expressed their consent before the Designated Officer and have decided to lead/produce evidence in one of the proceedings of one of the two applications preferred before the Designated Officer. However, as both the said applications are different, to avoid technicalities, two different petitions have been filed otherwise, issue brought before this Court for its determination is factually and legally similar. Nature of reliefs prayed for in both the above petitions is identical. The petitioners have prayed for issuance of appropriate writ, order or direction, mainly in the terms that this Court may issue a writ of certiorari declaring the proceedings initiated by respondent No. 3 against the petitioners under the provisions of Gujarat Provisions for Disqualification of Members of Local Authorities for Defection Act, 1986 and Rules, 1987 as not maintainable and the order under challenge dated 24th March, 2008 passed by the D signated Officer is not sustainable in the eye of law and therefore, the same be set aside. Rest of the reliefs in prayer Clauses [B] and [C] in both the petitions are ancillary reliefs.

6. Firstly, basic facts and the controversy brought before the Court may be stated.

7. The State Election Commission conducted elections of Gandhinagar District Panchayat on 27th October, 2007. Gandhinagar District Panchayat consists of 25 elected members. In the said elections, 15 members nominated and posed as candidates, came to be elected under the symbol of Indian National Congress [I] [hereafter referred to as “INC[I]”]. Therefore, 15 members belonging to INC[I] formed party in the body constituted of Gandhinagar District Panchayat. Pursuant to the election results, formal notification was issued by the State Election Commission under Rule 53[3] of the Gujarat Panchayat Election Rules, 1984 read with Section 15[4] of the Gujarat Panchayat Act, 1993. Thereafter, one Mahendrasinh Shankersinh Vaghela was elected as President of Gandhinagar District Panchayat. According to the petitioner, as all the 4 petitioners, along with one more member, namely, Kunvarben Jivraj Chaudhari were not satisfied with the working of the District Panchayat administration, more particularly, Panchayat Party, all the 5 members decided to form a separate group in the name of Gandhinagar Jilla Vikas Manch and all the 5 members, thereafter jointly submitted an application to the District Development Officer on 17th October, 2007 informing him to record split in the original Panchayat Party and requested that they may be recognized as separate group. It is alleged that the group of these 5 members decided to form separate political [Group] party within the District Panchayat on 15.10.2007 or 17.10.2007 and from that day a Panchayat Party came into existence. On that very day, an application was also submitted that the President of District Panchayat should hand over administration of District Panchayat to the general body. Affidavits were also submitted to the District Development Officer. According to the petitioners, they are 5 members, i.e. 1/3rd of the original strength of INC [I] representing that party in the elected body of District Panchayat and a group has come to be formed which requires recognition as Panchayat Party. It is contended by the petitioners that as per Section 4 of the said Act, disqualification on the ground of defection would not apply in case of split and on 17th October, 2007, there was split in INC [I] in Gandhinagar District Panchayat Party. Development Commissioner was thereafter, vide letter dated 20th October, 2007 informed by the District Development Officer about the split in the original party and he was requested to do the needful in the matter. On receipt of the communication by the Development Commissioner, necessary proposal was sent and ultimately, a request was made to grant permission to convene special meeting of Gandhinagar District Panchayat on 23rd November, 2007. The District Development Officer intimated the Development Commissioner that considering the scheme of Section 4 of the said Act, group of 5 members, perhaps cannot be declared as disqualified and therefore, appropriate decision, if need be, may be taken and the separate group, if ordered, may be recognized and the proposal made earlier may be considered. Thereafter, on 29th November, 2007, one of the petitioners, namely, Pravinji Shakraji Thakor forwarded “No Confidence Motion” to the District Development Officer against the President of Gandhinagar District Panchayat and requested the District Development Officer to do the needful in the matter. Letter of moving “No Confidence Motion” in the prescribed form under Rule 20 of the Panchayat [Procedure] Rules, 1997, allegedly signed by group of 15 members was also forwarded. Thereafter, the District Development Officer requested the Development Commissioner to convene the meeting. It is alleged that neither before the meeting nor during the course of the meeting that was convened on 11th J nuary, 2008, whip/mandate was served on the petitioners. It emerges from the record that it was decided that general body meeting may be convened to discuss No Confidence Motion moved by each elected member. Therefore, by issuing whip/mandate, each member of INC [I] in Gandhinagar District Panchayat party was directed to vote in particular way. Stand of the petitioners is that no such whip/mandate was ever served to them. At one place, in the record available with the Court, it emerges that the say of the petitioners at one point of time was that they were not supposed to be served with such whip/mandate nor they were supposed to accept such whip/mandate as they were not the members of the INC [I] in Gandhinagar District Panchayat Party. However, it is contended in the present petitions that the Chairman/President who presided over the general body meeting, even had not cared to inform any of the petitioners about issuance of the whip/mandate by the Indian National Congress [I] Panchayat Party nor they were served with the mandate prior to commencement of the proceedings of the meeting. It is the say of the petitioners that this is clear violation of Rule 10 of Amendment Rules, 2007 and therefore, on this ground, there was no scope to declare any of the petitioners as disqualified from the membership. This is not a case of giving up membership voluntarily. Merely because one of the members, namely Kunverben Chaudhari, who was with the petitioner at the time of forming of a separate group took a sharp “U” turn in her stand, would not make the case of the petitioners either bad or unsustainable. It is alleged that the Designated Officer has ignored relevant provisions of the Act as well as Rules. Application No. 32 of 2008 was required to be dismissed on the technical ground holding that the same is not maintainable in the eye of law for the infirmities in the application itself. But when the parties agreed to deal with both the applications and requested to decide them simultaneously and to produce evidence in one of the applications, it would be difficult for this Court to observe that the Designated Officer ought to have passed order dismissing Application No. 32 of 2008 on the ground of violation of non-compliance of mandatory provisions while filing the application for disqualification and the second application, therefore, could have been dismissed saying that the second application of similar nature against the same members cannot succeed. Either applying the principles of res judicata or under the broad principles of natural justice, successive application of similar nature ought not to have been allowed by the Designated Officer.

8. Undisputedly, in the second application, being Application No. 33 of 2008, when it was presented by respondent No. 3 of Special Civil Application No. 5740 of 2008, there was no technical infirmity. The Designated Officer, therefore, with the consent of the parties, has rightly decided both the applications simultaneously and has disposed of both the applications by common order.

9. At this stage, it would be relevant to reproduce the operative part of the order passed by the Designated Officer. The same is reproduced as under:

xxx I have come to the conclusion that in this particular case, there is no split in original political party. The Section 2[F], Section 3 and Section 4 of the ‘Gujarat Provision for Disqualification of Members of Local Authority for Defection Act, 1986’ have been obtained from the 10th Schedule of Constitution of India para 1[c] and Para 2 and Para 3 for the purpose of disqualification on the ground of defection. The respondents have failed to establish the split in original political party. In the light of aforesaid judgments of the Hon’ble Supreme Court and facts which have appeared from the record of the file, I hereby decide to disqualify all the 4 respondents from the membership of Jilla Panchayat Gandhinagar. Xxx

10. While evaluating the submissions made and the documents produced, the Designated Off cer has discussed the following four points; [i] Is there any split in the original political party? [ii] Is there 1/3rd strength of the separated group? [iii] If it is not so, then, is there any violation of mandate issued by such political party’s authorized person; [iv] Is there any act of voluntarily giving up membership of such political party by the separated group members. Here, it would be relevant to reproduce provision of Section 4 of the said Act. The same reads as under:

Section 4:

Disqualification on ground of defection not to apply in case of Split

[1] Where a councillor or, as the case may be, a member makes a claim that he and any other members of the municipal party or, as the case may be, the Panchayat party constitutes the group representing, a faction which has arisen as a result of a split in his original political party and such group consists of not less than one-third of the councillors of such municipal party or, as the case may be, members of such Panchayat party.-

[a] he shall not be disqualified under Sub-section [1] of Section 3 on the ground,-

[i] that he has voluntarily given up membership of his original party; or

[ii] that he has voted or abstained from voting in the meeting of such municipal corporation, Panchayat or, as the case may be, municipality contrary to any direction issued by such party or by any person or authority authorized by it in that behalf without obtaining the prior permission of such party, person, authority and such voting or abstention has not been condoned by such party, person or authority within fifteen days from the date of such voting or abstention; and

[b] from the time of such split, such faction shall be deemed to be the political party to which he belongs for the purposes of Sub-section [1] of Section 3 and to be his original political party for the purposes of this section.

11. It is held by the Designated Officer that in this case, there is no split in the original political party. Undisputedly, INC [I] is a national level party. There was no evidence before the Designated Officer that there was split at national level nor even at State level in the political party, i.e. INC [I], nor was there any split in that very party at district level. The Designated Officer has considered the ratio of the judgment of the Supreme Court in the case of Jagjit Singh v. State of Haryana and Ors. and Rajendra Singh Rana and Ors. v. Swami Prasad Maurya and the observations made by the Apex Court therein. It emerges from the record that on 17th October, 2007, the application signed by 5 members [4 petitioners + Kunverben Chaudhary] was sent to the District Development Officer which was received by him, but in couple of hours, one of these 5 members, namely, Kunverben Chaudhari addressed and sent a letter to District Development Officer, Gandhinagar contending that she has not signed any letter addressed, forming a separate group nor she is part of Gandhi Jilla Vikas Manch. Affidavit of Kunverben Chaudhari sent along with application dated 17th October, 2007, is of 15th October, 2007. Therefore, on the day on which Kunverben Chaudhari affirmed an affidavit, application dated 17th October, 2007 was not even prepared. Signature on the application dated 17th October, 2007 has been seriously disputed and the Designated Officer, therefore, was authorized to scrutinize the allegations and counter allegations as to genuineness of signature of Kunverben Chaudhari in the application dated 17th October, 2007. The letter written by Kunverben Chaudhari, expresses categorical denial of fact that she was party in moving the application of forming a separate group. She has expressed her ignorance about the letter. It is also declared in the said letter that she has not joined any separate group nor has she signed the application. It is alleged by Kunverben Chaudhari that somebody might have forg d her signature to create a document. She has also declared that she is loyal to the INC [I] and will remain with INC [I] party.

12. The Designated Officer has considered the subsequent conduct of Kunverben Chaudhari, and her immediate conduct is found consistent with the letter that she had written to the responsible officers including District Development Officer. Even during the general body meeting, namely, in the requisition meeting convened to discuss No Confidence Motion move, she acted as loyal member of Congress [I] party.

13. Mr. Oza,learned Sr.Advocate has argued at length and has taken me through the entire case,relevant part of the statutory provisions and other factual matrix.Submissions of Mr.Oza, can be summarized as under.

[1] Finding of the Designated Officer only on the point of split is improper and has resulted into serious prejudice to the petitioners and the authority ought to have held that there was split in the Panchayat Party.

[2] Disqualification under Clause [b] of Sub-section [1] of Section 3 is bad, illegal and unsustainable, because, there was no whip [Dandak] in the Panchayat Party of Indian National Congress [I] and mandate ought to have come from the national level. There was no evidence to the suggestion of the Designated Officer that President of Gandhinagar District Congress Committee was authorized to issue mandate.

[3] There is no evidence to show that mandate was ever served or had reached to the petitioners or any one of them.

[4] Mode of service of whip is well discussed by the judicial pronouncements and there is no evidence to show that whip was ever served or conveyed to the petitioners. Mere instruction or communication to cast vote in particular manner cannot be concluded with the word “whip” or “mandate” or “direction” binding on a member of the political party, more particularly in free democratic society.

[5] This is a clear case of violation of Rule 10 of the Amendment Rules, 2007, as Chairman has failed in serving whip prior to commencement of the proceedings, so also it is necessary to quash the finding recorded by the Designated Officer and the Court should hold that for want of service of whip, disqualification could not have been ordered. Mode of service and other aspects of whip have been discussed by the Apex Court and there was no evidence before the Designated Officer that the same was served accordingly. Even then, the petitioners have voted against the interest of the political party to which they belong.

[6] The word “Secretary” of government department signifies that a person who is enjoying the post of Secretary or any higher position in the administration of the government only can be conferred with powers of Designated Officer as per the scheme of Section 6 of the Act. It is not the case of any of the respondents that Mr. Sanehi was at relevant point of time Secretary of particular department or was enjoying any higher position, that is, of Secretary. Therefore, Mr. Sanehi had no jurisdiction, authority or power to deal with the Reference. Mr. Jasubha Rana, President of District Panchayat was not authorized to issue any direction. At the most, he could be said to have issued instructions. Elected member can ignore instructions conveyed by the District Party President. Mr. Rana was never authorized to issue mandate to the members of the District Panchayat, Gandhinagar, by resolution passed by national level party nor is there any evidence to show that national level party had ever decided that all district heads of the party shall be entitled to give directions or mandate to the elected members of each Panchayat or Municipalities functioning in that district.

14. Of course, Mr. Oza, in response to the query raised by the Court has fairly accepted that if the Court is of the view that there was no split in the party in view of the judgment of the Apex Court in the case of Jagjit Singh [supra], then, he would not be able to argue much as the Supreme Court has crystallized the law in this regard.

15. Submissions of Mr. Tushar Mehta, appearing for the respondent No. 3 are mostly as per the affidavits submitted by the respondent No. 3, i.e. first affidavit in reply and second affidavit in reply. He has mainly placed reliance upon two decisions of the Apex Court in the case of Jagjit Singh v. State of Haryana and Ors. and other two decisions, i.e. in the case of Kihoto Hollohan v. Zachilihu and Ors. reported in 1992 Supp [2] Supreme Court Cases 651 and in the case of Ravi S. Naik v. Union of India and Ors. . However, he has fairly accepted that these decisions were considered by the Apex Court in subsequent two decisions relied upon by him.

16. I have considered the contents of the application, order under challenge as well as affidavit in reply filed by respondent No. 3. It is not necessary to discuss other details about the admission hearing that had taken place before one learned Single Judge [Hon’ble Ms. Justice Abhilasha Kumari] on 1st April, 2008 and the subsequent order passed on 2nd April, 2008 by the said learned Single Judge. But the fact remains that the petitioners have not been granted any interim protection by this Court. Anxiety of Mr. Yatin N. Oza, learned Senior Advocate appearing with Mr. Rajesh K. Savjani, appearing for the petitioners is that this Court should hear and decide the petitions as expeditiously as possible otherwise publication of notification of bye-election treating the post of the petitioners as vacant may result in to serious prejudice to the petitioners.

17. I have heard Mr. Yatin N. Oza, learned Sr. Advocate appearing with Mr. R.K. Savjani for the petitioner, Mr. Tushar Mehta, learned Counsel appearing for the respondent No. 3 and Mr. Satyam Chhaya, learned Asstt. Govt. Pleader appearing for the respondent State.

18. Mr. Chhaya, learned AGP appearing for the respondent State has submitted that the finding recorded by the Designated Officer is in accordance with law and the State Government has appointed Designated Officer by publishing notification and that the Court may decide the matter on strength of the submissions made by the contesting party, mainly, the petitioners and respondent No. 3. It is provided by Section 6 of the Act that when any question arises where a member of a Panchayat has become subject to disqualifications under the Act, the question should be referred to the Chief Secretary to the State Government or to such officer not below the rank of Secretary of any Department of the State Government as may be designed by the State Government and the decision of such officer shall be treated as final. So, proceeding under Section 6 of the Act are initiated by the respondent No. 3 of both the present petitions contending that the petitioners be disqualified as they have voluntarily decided to organize their own political party in the name and style of Gandhinagar Jilla Vikas Manch and that the provisions of Section 4 of the Act have been wrongly interpreted by the petitioners. In response to the query raised by the Court, Mr. Oza, learned Sr. Advocate has submitted that if the Court ultimately reaches to a conclusion that the finding recorded by the Designated Officer holding that this is not a case of split in Panchayat Party and that the formation of separate group by the petitioners, i.e. Gandhinagar Jilla Vikas Manch is not result or reflection of “split” within the meaning of Section 4 read with Section 6 of the Act, then, the ultimate finding recorded in the Reference Application would go against the petitioners. But if the Court reaches to a conclusion that the conduct of Kunverben Chaudhari, one of the 5 members who had sworn an affidavit and written a letter dated 17th October, 2007 jointly, is nothing but an afterthought of that member, then, it is possible for the Court to conclude that there was a split in Panchayat Party within the meaning of Section 4 of the Act and the order of disqualification of the petit oners under challenge can be quashed and should be quashed. I have considered the application dated 17th October, 2007 and the affidavit dated 15th October, 2007 attached with the said application. The said application dated 15th October, 2007 is two days prior to the application dated 17th October, 2007 on which day it came to be prepared, signed and dispatched.

19. I have considered the date of purchase of stamp papers on which the affidavits came to be typed out, places where the same were affirmed before the different Notaries public and the controversy as to the genuineness of the signature of Kunverben in the letter dated 17th October, 2007 vis-a-vis her subsequent conduct in couple of hours. I have also considered the conduct pointed out by the learned Counsel for the parties, mainly by Mr. Tushar Mehta, learned Counsel appearing for the respondent No. 3, the time and the requisition meeting called to discuss the No Confidence Motion move allegedly moved by 15 members. Though there is no reference in the minutes drawn of the meeting, which are otherwise required to be drawn by the Secretary of the general body, that whether any attempt was made to serve the mandate/whip to any of the 4 petitioners or at the place of meeting whether anybody had attempted to serve the mandate to the petitioners or any of them, but the version of Kunverben Chaudhari examined by the Designated Officer positively helps the case placed by the the respondent No. 3 i.e. applicant before the Designated Officer. Whether absence of any such attempt if was made, would have any impact or effect on the ultimate finding, can be discussed later but what was the strength of the members who formed alleged separate group on 17th October, 2007 is a crucial question before the Designated Officer. The Designated Officer, on plain reading of the order under challenge appears to have reached to the right and logical conclusion. The finding is based on the ratio of the decision of the Apex Court in the case of Jagjit Singh v. State of Haryana and Ors. . In this cited decision, the Apex Court was dealing with the petitions challenging the legality of the orders passed by the Speaker of Haryana Legislative Assembly disqualifying the petitioners from being members of the Assembly. The orders passed by the Speaker were passed under the powers conferred on the Speaker under the Tenth Schedule to the Constitution of India. The challenge of the order of disqualification was on various grounds. The common ground in all the said petitions was violation of principles of natural justice. It was contended on behalf of the petitioners in that case that the orders of disqualification were made in utter haste and that would deprive them of their vote on 26th June, 2004 with a view to help the Chief Minister whose son was a candidate in the election to the Rajya Sabha. It is not necessary to reproduce the relevant parts of the above cited decision cited by Mr. Tushar Mehta. This Court has carefully gone through paragraphs 65, 66, 68 to 70 and 72. However, it would be relevant to reproduce relevant paragraphs 69 and 70 of the above judgment.

Apart from the above, the acceptance of the contention that only claim is to be made to satisfy the requirements of paragraph 3 can lead to absurd consequences besides the elementary principle that whoever makes a claim has to establish it. It will also mean that when a claim as to split is made by a member before the Speaker so as to take benefit of paragraph 3, the Speaker, without being satisfied even prima facie about the genuineness and bonafides of the claim, has to accept it. It will also mean that even by raising a frivolous claim of split of original political party, a member can be said to have satisfied this stipulation of paragraph 3. The acceptance of such broad proposition would defeat the object of defection law, namely, to deal with the evil of political defection sternly. We are of the view that for the purposes of paragraph 3, mere making of claim is not suff cient. The prima facie proof of such a split is necessary to be produced before the Speaker so as to satisfy him that such a split has taken place.

In the present case, the Speaker has held that the petitioner has failed to satisfy that split in the original party, namely, NCP had taken place. According to the petitioner, he had formed/joined a new political party on 20th December, 2003 having been elected on the ticket of NCP in February 2000. On 20th December, 2003, a new political party by the name of Democratic Congress Party of Haryana was formed. The petitioner voluntarily gave up membership of NCP on 20th December, 2003 and joined this newly formed party. On these facts, the disqualification of voluntarily giving up membership NCP stands attracted subject to the claim of the petitioner under paragraph 3. The petitioner had to prove that the stipulations of paragraph 3 are satisfied. The Speaker has held that no valid proof or evidence was placed on record to show that split had indeed taken place in NCP on 20th December, 2003 or at any other time. It has further been noted by the Speaker that several times the respondent had been asked the names and addresses of the office bearers of well as the names and addresses of the office bearers of the original political party at the National and State level as NCP who attended the meeting in which resolution dated 20th December, 2003 was passed. The petitioner, despite opportunity, did not give any satisfactory response or reply in this regard. The Speaker further held that it is only in the original party of NCP, the split had to be proved and not in the Legislative Party of Haryana. The complainant had specifically taken the plea in the complaint that no such split in NCP had taken place. The reply of the petitioner to the said assertion is that he is only claiming that a split was caused by the party workers in the original political party on 20th December, 2003 and that information had been sent to the Speaker as well as to the Election Commission of India. The Speaker, on the basis of material on record, has come to the conclusion that the petitioner was wanting to treat his own defection allegedly supported, according to the petitioner, by some party workers at local level as a split in his original political party. Such a plea was not accepted by the Speaker. We think the Speaker is right. Such a split, if held to be valid for the purposes of paragraph 3, would defeat the very purpose of the law. The requirement is not the split of the local or State wing of original political party but is of original political party as defined in paragraph 1(c) of the Tenth Schedule read with the explanation in paragraph 2(1) to the effect that ‘an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such Member’.

Ratio of the above judgment is that in case of split, 1/3rd members of the State Legislature in a political party must form a group to make split effective within the State Legislature, but it does not lead to a conclusion that the Parliament intended to treat the said union of a political party as separate entity for the purpose of the benefit of para-3. The Apex Court has referred one decision in the case of G. Viswanathan v. Hon‘ble Speaker T.N. Legislative Assembly and has ultimately held as under:

On the facts of the present case, the Speaker was justified in coming to the conclusion that there was no split in the original political party of the petitioner Jagjit Singh (Writ Petition 287/2004). Likewise, in Writ Petition 292/2004, the Speaker on consideration of relevant material placed before him came to the conclusion that there was no split as contemplated by paragraph 3 of the Tenth Schedule. The finding of the Speaker cannot be faulted. In fact, letter of the petitioner dated 17th June sent to the Speaker itself shows that what was claimed was that the Haryana unit of the Republican Party of India effected a split in the original party o 21st December, 2003. The finding that the claim of split was made as an afterthought to escape disqualification under paragraph 2(1)(a) of the Tenth Schedule cannot be held to be unreasonable or perverse. The Speaker was justified in coming to the conclusion that despite various opportunities, no valid proof or evidence was placed on record by the petitioner to show that indeed a split had taken place in the original political party, i.e., Republican Party of India on 21st December, 2003.

It is possible to infer for this Court that on 17th October, 2007, perhaps there were only 4 members and after swearing an affidavit on 15th October, 2007, Kunverben Chaudhari may have decided not to join the rebellion. Each person in the political field thinks for the political stability and progress in the field. Everybody in his respective life does so. There was no need for the Designated Officer to send documents to handwriting experts. Reasonable scrutiny is permissible and there is no reason for this Court to differ with the finding recorded by the Designated Officer in this regard, because, this Court has reason to believe that the authority must have taken all care in dealing with sensitive issue/controversy as to genuineness of signature of Kunverben Chaudhari and when the conclusion is found recorded on sound good reasons, then, the Court should not record different finding unless the finding recorded by the Designated Officer is patently found illegal, perverse and contrary to the principles of natural justice or arbitrary. The order for disqualification was prayed by the applicants for two different reasons and the decision under challenge is mainly based on the first ground that the petitioners have incurred disqualification as they have decided to leave INC [I] in Gandhinagar District Panchayat Party though there was no split in the original national party either at national level or state level or at district level. It was, therefore, prayed that the Designated Officer should declare that the petitioners are disqualified as member of Gandhinagar District Panchayat as the case of the petitioners falls in the category of Section 4[a][i] of the Act. Number of documents, even the letter-pad used by one of the petitioners indicates that 4 members had decided to form separate group and thereby they had given up their membership as member representing INC [I] in Panchayat Party.

The present petitioners were supposed to meet with two different impeachments made in the applications preferred before the Designated Officer under the Act. Section 3 of the Act reads as under:

Section3:-Disqualification on ground of defection.-

[1] Subject to the provisions of Sections 4 and 5, a councilor or a member belonging to any political party shall be disqualified for being a councilor or a member;

[a] if he has voluntarily given up his membership of such political party; or

[b] if he votes or abstains from voting in any meeting of a municipal corporation, Panchayat or as the case may be, municipality contrary to any direction issued by the political party to which he belongs or by any person or authority authorized by it in this behalf without obtaining in either case the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention.

Explanation-

[1] For the purpose of this section

[a] a person elected as a councilor or, as the case may be, a member shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such councillor or member.

[b] An appointed councillor or member shall,

[i] where he is a member of any political party on the date of his appointment as such councillor, or as the case may be, member be deemed to belong to such political party;

[ii] In any other case, be deemed to belong to th political party of which he becomes, or, as the case may be, first becomes a member of such party before the expiry of six months from the date on which he is appointed as such coouncillor, or as the case may be, a member.

[2] An elected councillor, or as the case may be, member who has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a councillor or, as the case may be, a member if he joins any political party after such election.

[3] An appointed councillor or, as the case may be, member shall be disqualified for being a councillor or, as the case may be, a member if he joins any political party after the expiry of six months from the date on which he is appointed as such councillor or member.

[4] Notwithstanding anything contained in the foregoing provisions of this section, a person who on the commencement of this Act, is a councillor, or, as the case may be, a member [whether elected or appointed as such councillor or member] shall

[a] where he was a member of a political party immediately before such commencement, be, deemed for the purposes of Sub-section [1] to have been elected as a councillor or, as the case may be, a member as a candidate set up by such political party;

[b] in any other case, be deemed to be an elected councillor or, as the case may be, member who has been elected as such otherwise than as a candidate set up by any political party for the purpose of Sub-section [2] or, as the case may be, deemed to be an appointed councillor or, as the case may be, a member for the purpose of Sub-section [3].

20. As per the scheme of Section 3 of the Act, first impeachment is that the petitioners should be disqualified as they have voluntarily given up membership of “Panchayat Party” by sending written intimation and thereafter by their conduct. Formation of separate group, meaning thereby, a political party obviously was not a circle within circle. The language used in the first intimation sent on 17th October, 2007 and thereafter subsequent correspondence made by one of the petitioners, namely, Pravinji Shakraji Thakore on his letter-pad makes it clear that he had claimed that group of 5 members may be recognized as separate “political group” and that group should be recognized as Gandhinagar Jilla Vikas Manch. More than one documents show that in reality, perhaps they were 4 but they were claiming to be 5 in number. For the sake of argument, even if it is accepted that on 15th October, 2007, or even on 17th October, 2007, 5th member, i.e. Kunverben Chaudhari may have been with them, but before formal letter reaches to the Designated Officer/Competent Officer, she was legitimately entitled to change her mind. It appears that original applicants have decided not to pray to disqualify Kunverben Chaudhari. It is not even argued before this Court nor was submitted before the Designated Officer by preferring an application under Section 3 read with Section 6 of the said Act that this Kunverben Chaudhari may be declared as disqualified by any other “Pahchayat Party” member of Indian National Congress [I]. As stated vide letter dated 17th October, 2007 group of Gandhinagar Jilla Vikas Manch was not recognized as separate political group excepting Kunverben as one of the members of that group. Therefore, it is alleged that as there was no split contemplated under Section 4 referred to herein above in Panchayat Party of the members elected on sponsorship of INC [I] and declared elected and accordingly, vide notification published in the month of October, 2005 in form 31A under Rule 63[3] of Gujarat Panchayat Election Rules, 1994 [column 7 of relevant form at page 110 of Special Civil Application No. 5505 of 2008], the petitioners be declared as disqualified as members of the District Panchayat.

21. Second impeachment is that all the 4 petitioners had refused to accept the party mandate and ultimately voted against the party mandate in the special gener l meeting called to discuss and pass appropriate resolution of No Confidence Motion moved against the President of the District Panchayat.

22. It is not a matter of dispute that for the purpose of Section 3 read with Section 6 of the said Act respondent No. 3 of both the petitions herein and applicants before the Designated Officer were members of the District Panchayat and the petitioners were also members individually as a person elected as member or councillor deemed to belong to particular political party, i.e. INC [I] against the mandate issued by a political party to which they belonged.

23. Language of Section 3[1][b] of the said Act contemplates that number of defectors genuinely believe that mandate is issued by a person who has no authority to issue such mandate, then, such defector is supposed to raise a question as to the authority of the person who has issued the mandate at the threshold, meaning thereby, before initiation of the proceedings of the meeting convened. It is contended by the respondent No. 3 that the petitioners have conducted contrary to the directions issued by the political party to which the petitioners belong. Use of expression “or” should be considered as word significant to appreciate the scheme. The scheme provides that the mandate can be issued by the party itself or can be issued by any person authorized or has authority to issue such mandate. The Indian National Congress [I] is a national party and it has district units in every State and these units are supervised and regulated by the Gujarat Pradesh Congress Committee [GPCC]. It is satisfactorily established that as such, there is no challenge that Jasubha P. Rana is the President of Gandhinagar District Congress Committee. Though Mr. Oza has argued that this Jasubha P. Rana cannot be treated as person authorized to issue mandate or direction to cast vote in particular manner. Indian National Congress [I], being national party, mandate ought to have come from national level, or the Head of State level Unit. The petitioners ought to have produced satisfactory documentary evidence that Indian National Congress [I] as Panchayat Party has its own constitution and no formal whip [Dandak] has been appointed or elected. No documentary evidence has been produced that the national level party itself resolved that how State Unit of Indian National Congress [I] as political party would regulate its administration up to grass root level. According to Mr. Oza, mere production of some documents empowering Jasubha P. Rana as person authorized to issue whip/mandate or direction, ought not to have been accepted as sufficient evidence to disqualify the petitioners as contemplated under Section 3[1][b] of the said Act. Mr. Oza has placed reliance on certain decisions and mainly on the observations made by the Apex Court in this regard, because, ultimate impact would be against the elected person and before ousting the elected member, the Court cannot take casual approach in dealing with sensitive issue. Mr. Oza has drawn attention of this Court to the following portion that had taken place at the time when 73rd Amendment Bill was being discussed in the Parliament.

As far as disqualification is concerned, as provided that if the member is disqualified for the purpose of election to the legislature of the State, then, he will also be disqualified for this purpose. I do not know whether it will also attract the Anti-defection law. As far as Anti-defection law is concerned, a member is also disqualified to become a member of the State legislature and also Parliament. If this is attracted, then there will be different problems as far as these local bodies are concerned. Of course, in Maharashtra, the Anti-defection law has been introduced in the local bodies also. But I do not know whether that is the intention of the farmers of this Bill. Moreover, it has been provided further that if there is any dispute as far as the disqualification is concerned; then the authority is to be appointed by law to decide those dispute. I do not know what kind of disputes can be referred to this authority. If a Member is disqualified for being elected as a Member, then at the stage of the filing of the nomination itself that will have to be decided and it is decided by the returning officer. Afterwards, if anybody disputes after the election saying that a particular Member was not qualified to be a Member under a particular provision, then generally there are election petitions and some court is to hear those election petitions. So, I think, this provision is redundant. What authority has has to be established for what purpose? If at the time of nomination it is to be decided, it will be decided by the Returning Officer. If afterwards it is to be decided, it will naturally be decided by the judicial authority which will hear the election petition because it can be decided only by way of an election petition. So, second thought may be given as far as this provision is concerned.

24. According to Mr. Oza, order of disqualification passed by the Designated Officer under Section 3[1][b] of the said Act is bad. There is no system of a Speaker in the local self-government like Municipality or Panchayat and therefore, the Designated Officer is authorized/empowered to enter into an inquiry and decide the issue that whether a member in particular, has incurred disqualification. In the meeting called to discuss No Confidence Motion move which was to be presided over by the Vice President being the Chairperson of the meeting, Vice President/Chairperson had not cared to follow the scheme of Rule 10 of the Amendment Rules, 2007.

25. Rule 10 of the Amendment Rules, 2007 relied upon by Mr. Oza reads as under:

Rule 10: A Councillor of Municipal Corporation or the Municipality or a member of the Panchayat who is elected to the symbol of political party shall while attending any meeting of Municipal Corporation or the Municipality or a Panchayat ensure whether any mandate is issued by such political party and if any mandate is issued by such political party, he shall obtain such mandate from such political party, or by any person or authority authorized by it. The Chairperson of any meeting of Municipal Corporation or the Municipality or a Panchayat shall verify that such a mandate has been issued by the political party, and circulated to the councillor of Municipal Corporation or the Member of Municipality or a member of the Panchayat.

26. There is no reference in the proceedings of general body meeting that members including the petitioners had ever attempted to ascertain whether any mandate by any political party has been issued and if issued, whether it has reached to each member representing that particular political party. In absence of service of such mandate or direction given by a political party to any member representing that particular party, the person presiding over the meeting should serve mandate to the member at the threshold as per Rule 10. While developing the argument in reference to the second impeachment, Mr. Oza has mainly taken two stands that mandate was not issued by the person authorized nor there was any evidence to show that the mandate allegedly issued by the Indian National Congress [I] had reached any of the petitioners prior to commencement of the proceedings of the meeting. There are two main affidavits filed by the respondent No. 3, first is at page 218 and another is at page 346 of the petition. Agenda of the meeting that was convened at 12.00 noon on 11th January, 2008 is of 29th December, 2007. So, in the meeting of 11th January, 2008, No Confidence Motion move was to be discussed. Copy of the mandate issued and signed by Jasubha Rana prepared in respect of 4 members is at Annexure:G [at page 267 and 270 of the petition]. Gandhinagar District Congress Committee, in the meeting dated 11th January, 2008, had resolved that the mandate may be affixed at the residence of all the four petitioners if they refuse to accept the mandate. Formal panchnama was drawn and it shows hat in the forenoon at about 4.00 p.m. and thereafter, the mandate was affixed at the residence of four petitioners. These panchnamas were before the Designated Officer as a piece of evidence duly verified by the applicant-respondent No. 3. Vice President was requested to see that the mandate issued to the members representing Indian National Congress [I] is served on 11th January, 2008 and there is sufficient evidence to show that Vice president who was supposed to preside over the meting was requested to read over the mandate to the members, more particularly, all the 4 petitioners. This letter is at page 180. True it is that there is no reference in the minutes drawn that the Vice President had attempted to serve mandate to all the 4 petitioners nor mandate was read over to them. But it is on record to show that such attempt was made. What weightage should be given to the such oral version of the persons who were present in the meeting including the Vice President in absence of necessary reference in the minutes drawn, is also a question to be considered. But the Court is of the view that ultimately, minutes are drawn by the Secretary. While signing the minutes, the person presiding over the meeting may not have noticed this aspect or may have ignored this aspect because, ultimately that procedure was in reference to a particular political party having its representation in the elected body and that formality has to be observed by the presiding person prior to actual initiation of the proceedings of the meeting for the purpose of which the same was called. In reference to the query raised by the Court, Mr.Oza has fairly accepted that there is no evidence to show that any of the petitioners had ever attempted to know from the Vice President, the person presiding over the meeting as Chairman, that whether any mandate is issued by their political party. Rule 10 casts an obligation on both sides and the person elected on the symbol of a political party, while attending any meeting shall have to ascertain whether any mandate is issued by the political party to which he represents and if any mandate is issued by such political party and if it found that the mandate is issued by a party, then, he shall have to obtain such mandate from his party or through any person authorized by that party. This obligation is graver which requires to be discharged by the Chairperson of such meeting. It is the duty of the Chairperson to ascertain whether members of a political party which has issued a mandate have received mandate or not and if the same is not found received, then, the Chairperson should serve such mandate to that unaware member. Crucial question is that a member who fails to ascertain whether political party that he represents in the House has issued any mandate for the meeting convened, more particularly to discuss the No Confidence Motion against a person who is otherwise elected on the symbol of his party or under the sponsorship of his own political party, whether can legitimately raise a grievance against the Chairperson, and any such member or group of members can be believed that Chairman had failed in his duty in serving the mandate as provided under Rule 10. Conduct of the petitioners, thus, clinches the issue and the facts pointed out by Mr. Mehta, learned Counsel for the respondent No. 3 automatically become more relevant.

27. According to Mr. Mehta, none of the petitioners had taken this factual contention before the Designated officer and the same has been placed before this Court for the first time. The question of fact unless is raised before the competent authority, the petitioner cannot place reliance on such plea based on facts simplicitor. Mr. Mehta has drawn attention of the Court to para 3[9] of the reply [page 348] submitted to the Designated Officer by the present petitioners. Relevant portion thereof reads as under:

3[9] The contents of paragraph 3[9] are not correct and denied. It is stated that no information was given to the respondents about issuance of any such direc ion at the relevant poit of time and the congtress party is not likely to have done so as they knew very well since long that the respondents and Smt. Chaudhari had already become a separate political party and therefore they could not have validly issued such a mandate to them. It is stated that right from 17.10.2007 the petitioner and Congress party had not treated the members of new group as persons belonging to their party as can be noticed from their conduct.

28. Thus, the case of the petitioners before the Designated Officer was not that of non-service of mandate or some inaction on the part of the Chairperson in reference to Rule 10 of Amendment Rules, 2007. As such contention was never raised before the Designated Officer, the Designated Officer, obviously has not discussed the details of the documents tendered in support of the compliance about the service of the mandate including the authority of the person who had signed and issued the mandate. The Designated Officer had no opportunity to adjudicate upon such contention. On the contrary, stand taken by the petitioners before the Designated Officer makes them disentitled to raise the point that mandate was not properly issued nor was the same served and violation of Rule 10 would twilt the balance in favour of the petitioners. Therefore, the petitioners had incurred disqualification under both the Clauses [a] and [b] of Sub-section [1] of Section 3. Conduct of the each of the petitioners was required to be appreciated by the Designated Officer while evaluating the stand taken by respondent No. 3 and for that, sufficient documentary evidence was available including the affidavits of the original applicant-respondent No. 3. Affidavit of Jasubha Rana, president of Gandhinagar District Congress Committee was also available on record with the Designated Officer. Conduct of Kunverben Chaudhari, i.e.Vice President who had allegedly signed the letter of 17th October, 2007 also has been appreciated by the Designated Officer, because, two letters addressed to the President, Gandhinagar District Congress Committee by Kunverben Chaudhari were available before the Designated Officer. The said two letters dated 20th October, 2007 are on record at Annexure:D. Notice of No Confidence Motion was supplied along with the letter dated 17th October, 2007. The same was received by the District Development Officer on 18th October, 2007. This aspect is not in dispute. Even for the sake of argument if it is accepted that Kunverben Chaudhari had signed the notice of No Confidence Motion as per norms and in a form prescribed, but her conduct during the meeting of 11th January, 2008 and much prior to that since 20.10.2007 was sufficient for the Designated Officer to conclude that as such, there was no split in the Panchayat Party within the meaning of Section 4. The “Panchayat Party” is defined in Section 2[h] of the Act. Similarly, “original political party” is defined under Section 2[f]. Mr. Tushar Mehta has pointed out that scheme of Tenth Schedule is practically adopted for the purpose of the Act and he has submitted comparative table to assist the Court which is similar from word to word. The case of the petitioner does not fall in the category of the case of merger. In this fact situation, it is difficult for the Court to observe that finding of Designated Officer is either illegal or perverse or bad. The Designated Officer has also held that why and in which circumstances Kunverben Chaudhari is not to be declared disqualified as member and while confirming stand taken by Kunverben Chaudhari. In the disqualification proceeding under 3[1][b] of the Act, the Designated Officer, in para-3 of the order under challenge has considered the documents and other evidence submitted in the nature of affidavits, panchnama etc. Of course, finding of the Designated Officer is that the petitioners have incurred disqualification as they have voluntarily given up a political party or at the point of defiance of whip issued to him. But according to me, the day on which the petitio ers decided to form a separate group and requested the authority to recognize them as separate group and thereby considered them as Panchayat Party and continued with that conduct makes them disentitled to the membership from the date of 17th October, 2007. Perhaps, their pattern of vote and non-insistence since 17.10.2007 to recognize them as separate group may have saved the petitioners. Above-referred para 3[9] of the reply given by the petitioner to the Designated Officer had left no scope for the Designated Officer to hold that the petitioners had voluntarily given up membership of Panchayat Party and in that way, they had incurred disqualification contemplated under Section 3[1][a] of the Act irrespective of disqualification under Section 3[1][b] of the Act.

29. I have considered the discussion made by the Apex Court of the facts and observations made in reference to the facts that were brought before the Apex Court in the case of Rajendra Singh Rana and Ors. v. Swami Prasad Maurya , more particularly, the facts stated in paras 3,7, 10 and 12. In this decision, conduct of the members of the Legislative Assembly was under scrutiny. The Apex Court, while considering the controversy brought before it has observed that from the conduct of the members of ruling party meeting the Governor accompanied by General Secretary of the party in opposition and the submission of a letter requesting the Governor to invite the leader of that opposition party to form government as against the advice of the Chief Minister belonging to their original party to dissolve the Assembly, an irresistible inference arises that members have clearly given up their membership of BSP and no further evidence or inquiry is needed to find that their action comes within paragraph 2[i][a] of Tenth Schedule. It would be relevant to reproduce para-2 of the Tenth Schedule here, the same reads as under:

2. Disqualification on ground of defection.[1] Subject to the provisions of paragraphs 4 and 5, a member of a House belonging to any political party shall be disqualified for being a member of the House-

[a] if he has voluntarily gives up his membership of such political party; or

[b] if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorized by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention.

Explanation.–For the purpose of this sub-paragraph,–

[a] an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member;

[b] a nominated member of a House shall,–

[i] where he is a member of any political party on the date of his nomination as such member, be deemed to belong to such political party;

[ii] in any other case, be deemed to belong to the political party of which he becomes, or, as the case may be, first becomes, a member before the expiry of six months from the date on which he takes his seat after complying with the requirements of Article 99 or, as the case may be, Article 188.

[2] An elected member of a House who has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a member of the House if he joins any political party after such election.

[3] A nominated member of a House shall be disqualified for being a member of the House if he joins any political party after the expiry of six months from the date on which he takes his seat after complying with the requirements of Article 99, or, as the case may be, Article 188.

[4] Notwithstanding anything contained in the foregoing provisions of th s paragraph, a person who, on the commencement of the Constitution [Fifty-second Amendment] Act, 1985, is a member of a House [whether elected or nominated as such shall,–

[i] where he was a member of political party immediately before such commencement, be deemed, for the purposes of sub-paragraph [1] of this paragraph, to have been elected as a member of such House as a candidate set up by such political party;

[ii] in any other case, be deemed to be an elected member of the House who has been elected as such otherwise than as a candidate set up by any political party for the purposes of sub-paragraph [2] of this paragraph or, as the case may be, deemed to be a nominated member of the House for the purposes of sub-paragraph [3] of this paragraph.

30. It also provides for disqualification on the ground of defection. It would be more proper to put both these schemes of para -2 of Tenth Schedule and Section 3 of the Act in tabular form to appreciate the facts of the present case and the ratio of the judgment in the case of Rajendra Singh Rana[supra]

31. Para 2 of Tenth Schedule- Disqualification on ground of defection Section 3 -Disqualification on the ground of defection.

[1] subject to the provisions of paragraph 4 and 5, a member of a House belonging to any political party shall be disqualified for being a member of the House –

 

[a] if he has voluntarily given up his membership of such political party or 
 xxx      xxx      xxx
 

 [1] Subject to the provisions of Sections 4 and 5, a councilor or a member belonging to any political party shall be disqualified for being a councillor or a member:
 

[a] if he has voluntarily given up his membership of such political party; or
 xxx      xxx      xxx 
 

32. The Apex Court in the above referred decision observed in paras 44,45, 48 and 49 as under:
   

44. Normally, this Court might not proceed to take a decision for the first time when the authority concerned has not taken a decision in the eyes of law and this Court would normally remit the matter to the authority for taking a proper decision in accordance with law and the decision this Court itself takes on the relevant aspects. What is urged on behalf of the Bahujan Samaj Party is that these 37 MLAs except a few have all been made ministers and if they are guilty of defection with reference to the date of defection, they have been holding office without authority, in defiance of democratic principles and in such a situation, this Court must take a decision on the question of disqualification immediately. It is also submitted that the term of the Assembly is coming to an end and an expeditious decision by this Court is warranted for protection of the constitutional scheme and constitutional values. We find considerable force in this submission.

45. Here, the alleged act of disqualification of the 13 MLAs took place on 27.8.2003 when they met the Governor and requested him to call the leader of the opposition to form the Government. The petition seeking disqualification of these 13 members based on that action of theirs has been allowed to drag on till now. It is not necessary for us to consider or comment on who was responsible for such delay. But the fact remains that the term of the Legislative Assembly that was constituted after the elections in February 2002, is coming to an end on the expiry of five years. A remand of the proceeding to the Speaker or our affirming the order of remand passed by the High Court, would mean that the proceeding itself may become infructuous. We may notice that the question of interpretation of the Tenth Schedule and the question of disqualification earlier raised in regard to members of the prior assembly of this very State, which led to the difference of opinion between two of the learned Judges of this Court and which stood referred to a Constitution Bench, was, disposed of on the ground that it had become infructuous i view of the expiry of the term of the Assembly. Paragraph 3 of the Tenth Schedule has also been deleted by the Parliament, though for the purpose of this case, the scope of that paragraph is involved. Considering that if the 13 members are found to be disqualified, their continuance in the Assembly even for a day would be illegal and unconstitutional and their holding office as ministers would also be illegal at least after the expiry of six months from the date of their taking charge of the offices of Ministers, we think that as a Court bound to protect the Constitution and its values and the principles of democracy which is a basic feature of the Constitution, this Court has to take a decision one way or the other on the question of disqualification of the 13 MLAs based on their action on 27.8.2003 and on the materials available.

48. The act of giving a letter requesting the Governor to call upon the leader of the other side to form a Government, itself would amount to an act of voluntarily giving up the membership of the party on whose ticket the said members had got elected. Be it noted that on 26.8.2003, the leader of their party had recommended to the Governor, a dissolution of the Assembly. The first eight were accompanied by Shivpal Singh Yadav, the General Secretary of the Samajwadi Party. In Ravi Naik (supra) this Court observed:

A person may voluntarily give up his membership of an original political party even though he has not tendered his resignation from the membership of that party. Even in the absence of a formal resignation from the 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 which he belongs.

49. Clearly, from the conduct of meeting the Governor accompanied by the General Secretary of the Samajwadi Party, the party in opposition and the submission of letters requesting the Governor to invite the leader of that opposition party to form a Government as against the advise of the Chief Minister belonging to their original party to dissolve the assembly, an irresistible inference arises that the 13 members have clearly given up their membership of the BSP. No further evidence or enquiry is needed to find that their action comes within paragraph 2(1)(a) of the Tenth Schedule. Then the only question is whether they had shown at least prima facie that a split had occurred in the original political party on 26.8.2003 and they had separated from it along with at least 24 others, so as to make up one-third of the legislature party.

33. Here, all the four petitioners, undisputedly were party in signing the notice of No Confidence Motion and its dispatch to the authorized Officer whereby No Confidence Motion was moved and ultimately, the meeting was ordered to be convened on 11th January, 2008. Therefore, the correspondence referred to herein above on the letter pad of one of the petitioners, namely, Pravinji Shakraji Thakor and their stand before the Designated Officer, while filing reply to the application submitted, obviously goes against the present petitioners. Therefore, it is possible for the Court to dismiss the present petition observing that the finding of the Designated officer is absolutely legal considering the scheme of Section 3[1][a] read with Section 6.

34. So far as the disqualification on the other ground, that is, on account of defiance of whip issued is concerned, the Designated Officer could have held the petitioners disqualified, because, there was sufficient evidence produced by the applicants before the Designated Officer in the form of documents as well as affidavits in support of the contents of the application. Here also,the stand taken by the petitioners would not help them as discussed herein above in reference to scheme of Rule 10 of Amendment Rules, 2007. Similarly, the above referred para 3[9] of the reply submitted before the Designated Officer also would go against them. On one hand, the say of the pet tioners before the Designated Officer was that as they were no more members of Indian National Congress [I] and had claimed to be separate Panchayat Party forming group of 5 members, there was no reason for the Congress Party to issue mandate to them. This by itself, would estop them from taking fresh factual plea before this Court that Gandhinagar District Congress Committee President was not authorized to issue mandate and on that count, they [petitioners] had refused to accept the mandate. National level party, obviously is authorized to decide the modus as to how the party would operate up to the grass root level. There is no need to have straight-jacket formula for the purpose. Such expectation would neither be legal nor proper, more particularly in democratic format of the Constitution of India as well as each of the political party of the country. Ultimately, it is the policy of the party and when it is not the say of the petitioners that the State level unit of the party, at relevant point of time was of the different view than decision taken by the District President of Gandhinagar District Congress Committee. On the contrary, on facts, the Designated Officer has reached to the conclusion that there was no split in the party at any level including district level and that too, in a national level party. Therefore, the petitioners could have been held disqualified also as per the scheme of Clause [b] of Sub-section [1] of Section 3. The nature of objections placed before the Court by Mr. Oza for the first time on factual aspect also mainly relates to procedural things. Logic placed by Mr. Oza does not sound well considering the ratio of the Apex Court in the case of Rajendra Sinh Rana [supra] and also on account of the observations made by this Court in the case of Pratapbhai Manshibhai Vanariya v. P.V. Trivedi or successor in office [Special Civil Application No. 9003 of 2007 decided on 28th March, 2008 [Coram: C.K.Buch, J.], wherein it is observed that Rules 5, 6 and 7 of the rules are procedural and directory in nature. Of course, in the present case, the Court is not concerned with the relevant Rules 5,6 and 7 of the Rules. But plain reading of Rule 10 relied upon by the petitioners and discussed at length by the learned Sr. Advocate Mr. Oza and thereafter by Mr.Tushar Mehta, learned Counsel appearing for the respondent No. 3, takes the Court to a conclusion that this Rule also is of directory nature which would not render the proceedings of the entire meeting either bad or illegal and/or its proceedings inadmissible in evidence. The same has been rightly appreciated by the Designated Officer.

35. One more point advanced by the learned Sr. Advocate Mr. Oza is that the decision under challenge requires to be quashed as the inquiry was conducted and has been concluded by the Officer, who could not have been legally empowered with the authority to conduct and conclude the disqualification proceedings. According to Mr. Oza, such sensitive proceedings should not be handed over to anybody in the State merely because the officer was once upon a time in the Secretariat and was holding the post of Secretary of one of the departments. A person may be very senior in cadre of the officers enjoying the position of Secretary of the State in the government department, but if the officer on the day on which he has been empowered to conduct the proceedings under the Act, he must be the Secretary or officer of some higher rank than that of Secretary. Mr.Oza submitted that in the present case, the officer, who has conducted the inquiry is Mr.S.C.Sanehi, I.A.S., who was simply Member-Secretary in Gujarat Khadi Gramodhyog Board, Ahmedabad. He could not have been delegated this power, or authority ought not to have been conferred on him as he was mere Secretary in a government department. In response to the query raised by the Court, Mr.Oza, of course, has fairly accepted that Mr. Sanehi is a very senior officer and he has enjoyed the post of Secretary of government department and is in higher position than that of the S cretary in the State administration. But the day on which he was authorized and asked to entertain the proceedings initiated under the Act, he was on an insignificant post compared with Secretary of a government department and therefore, the order is without jurisdiction and therefore, the same requires to be quashed. Of course, this point was raised as a preliminary objection, but Mr. Oza has covered this point as third major point taken up by the petitioners. In response to the above submission, Mr. Tushar Mehta, learned Counsel appearing for respondent No. 3 has rightly argued that the petitioners have never challenged the authority of the officer when they submitted to the jurisdiction of the officer. Along with the affidavit submitted by respondent No. 3 Shri K.P. Bihola on 15th April, 2008, certain documents are produced, wherein, one document is in reference to the authority to issue whip given by the Gujarat Pradesh Congress Committee [GPCC] to Jasubha Rana, President of Gandhinagar District Congress Committee. Other documents are correspondence between the District Development Officer and the Development Commissioner in response to the argument advanced by Mr. Oza to dislodge the theory of split in Panchayat Party, but the document produced at page 373 gives clear answer to the submissions made by Mr. Oza. This is the notification published in the extraordinary gazette of Government of Gujarat, whereby the Panchayat, Rural Housing and Rural Development Department has issued a notification on 28th July, 2006 published on that very day i.e. on 28th July, 2006 Friday. The Notification is in the name of Governor of Gujarat. Merely because the officer of the rank of Secretary or officer enjoying any higher rank is on deputation with any other department of the State or its instrumentality would not place that officer to the rank inferior than the rank he was actually enjoying in the Secretariat. But the scheme of Section 6 is very clear which provides that on receipt of the application, question as to disqualification on the ground of defection has to be referred to the Chief Secretary to the State Government or to such officer not below the rank of a Secretary of any Department as may be designated by the State government and in this behalf…. Mr. Sanehi was the Designated Officer and the day on which he was appointed as Designated Officer, he was not an officer who could be said to be an officer below the rank of Secretary of any government department. Where he is working, what type of work he has been entrusted is not relevant at all if Section 6 is read and interpreted. When Mr. Oza has accepted that Mr. Sanehi is Senior Officer and has enjoyed position of Secretary and even higher position in the govt. department, then, the very officer can be conferred with the power as Designated Officer to deal with the reference made under Section 6. As discussed above, the officer if he is deputed to some other department or other instrumentalities of the State would not drag an officer to any inferior rank or insignificant rank or position. This argument, thus, is not found convincing.

36. The petitioners have raised this contention of jurisdiction or authority of Mr. Sanehi, which has been replied by respondent No. 3 in affidavit submitted on 15th April, 2008. I have considered the contents of the affidavit, more particularly at page Nos. 357 to 364. However, it would be relevant to reproduce some part of this affidavit which reads as under:

I respectfully state and submit that when Vivad Application No. 32/08 and Vivad Application No. 33/08 were being heard together, the present petitioners never raised the said contention regarding the jurisdiction of the Designated Authority on any score whatsoever and it is apparent on the perusal of the reply filed by them. As a matter of fact, vide application dated 13th March, 2008 filed before the Designated Authority, the present petitioners requested the authority that they would move the High Court for deciding both the Vivad Application No. 32 of 2008 and Vivad Application No. 33 of 2008 together. Even during the course of oral arguments, the entire matter was argued on length only on merits and the said question was not raised. It is thus clear that the petitioners have taken a chance to succeed in the proceedings and after having failed on merits, the said contention is raised for the first time while challenging the order passed by the Designated Authority. The present petitioners have acquiesced with the jurisdiction and proceedings conducted by the Designated Authority appointed under Section 6 of the Act and such a contention at this stage is barred by the doctrine of acquiescence and waiver.

37. It appears that the argument advanced as to the authority and power of Mr. Sanehi is nothing but an afterthought. It is not possible for this Court to observe that Mr. Sanehi had no jurisdiction or authority to deal with the reference made on the strength of the averments made for the purpose to declare that the petitioners have incurred disqualification and thus, they have lost membership of Gandhinagar District Panchayat.

38. Conduct of the petitioners as discussed herein above is relevant for the purpose of reliefs prayed for by the petitioners. Conduct of each of the petitioners prior to 17th October, 2007 and the conduct of continuing with the stand of split in the Panchayat Party till date of meeting and its conclusion of the proceedings of that meeting, are sufficient to hold that the petitioners have incurred disqualification and the finding under challenge is not required to be disturbed. Similarly, it has come on record to the satisfaction of the Court that mandate was issued by the competent person duly authorized by the national party and the same was duly issued and that the petitioners were aware or they were made aware about the mandate issued by the party. The fact that the petitioners have defied the mandate issued by the party is sufficient to declare them disqualified under Clause [b] of Sub-section [1] of Section 3 and thus, on evaluation, the order under challenge requires to be sustained/confirmed.

39. Mr. Oza has placed reliance on the decision of the Apex Court in the case of Sadashiv H. Patil v. Vithal D. Teke and Ors. . Facts of the said decision are materially different. Mr. Oza has taken me through the facts of the cited decision by reading paras 9 to 15. For the sake of convenience, it will be proper for the Court to reproduce the relevant paras- 12 and 15 hereunder.

A meeting of Janta Aghadi Councillors of Vita Municipal Council was convened to take place at 4 p.m. On 16.12.1997. The appellant, Sadashiv Hanmantrao Patil was elected as “Paksha Pratod”, i.e., Party Spokesman. It is not disputed that the meeting was attended by Vithal Dhondiram Teke,Badshah Akbar Tamboli and Smt. Lakmibai Waman Chothe,respondent Nos. 1, 2 and 3. It was resolved that Nandkumar Baburao Patil shall be the official candidate of Janta Aghadi for the post of President and the appellant, Sadashiv Hanmantrao Patil shall fill in the nomination form as a substitute candidate. In spite of such resolution Vithal Dhondiram Teke, respondent No. 1, filed his own nomination for the post of President proposed by Badshah Akbar Tamboli, respondent No. 2. Nandkumar B. Patil and Sadashivrao H. Patil also filed their nominations as the primary and substitute candidates for the post of the President as resolved in the meeting of Municipal Party of Janta Aghadi. On 15.12.1997, two directions, popularly known in the political parlance as whip, were issued. One direction was issued to Vithal Dhondiram Teke, respondent No. 1 and Badshah Akbar Tamboli, respondent No. 2 asking them to withdraw the nomination and the proposal respectively for candidature of the respondent No. 1 for the post of President as having been filed in violation of the resolution passed at the meeting of Municipal Party of Janta Aghadi. This direction bears the signatures of one Hanumant Rao who claims to be leader of the political party known as Janta Aghadi, Vita. It is also signed by Sadashiv Patil, the appellant in the capacity of Janta Aghadi Chief/Leader of Municipal Party. Another direction (whip) dated 15.12.1997 was issued to all the Municipal Councillors of Janta Aghadi directing them to remain present at the meeting of Vita Municipal Council scheduled to be held on 16.12.1997 and to cast vote in favour of the authorised candidate nominated by Janta Aghadi, namely, Nandkumar Baburao Patil. This whip is signed by the appellant, Sadashiv Hanumantrao Patil in the capacity of party leader, Janta Aghadi, Vita. These whips were served on all the 12 Councillors belonging to Janta Aghadi. Copies of the whips were served on the Sub-Divisional Officer who was to conduct the elections in question and were also pasted on a Board placed at the entrance of the meeting hall. The validity of the nomination filed by respondent No. 1 was objected to on the ground of defiance of the whips issued by Janta Aghadi but the objection was overruled. The election was held. Nandkumar Patil, the official candidate of Janta Aghadi received 9 votes as against 10 votes received by Vithal D. Teke, the respondent No. 1. He was declared elected as President of the Municipal Council. The respondent Nos. 1, 2 and 3voted for the respondent No. 1. A meeting of Janta

Aghadi was held on 19.12.1997. It was unanimously resolved not to condone the defiance of whip by respondent Nos. 1, 2 and 3. The appellant and two other members of Janta Aghadi made a reference for disqualifying respondent Nos. 1, 2 and 3 from the membership of the Municipal Council under Section 3 of the Act. After affording the respondent Nos. 1, 2 and 3 an opportunity of hearing and holding an enquiry as contemplated by the Act and the Rules, the Collector declared the respondent Nos. 1, 2 and 3 disqualified under the provisions of the Act. The three respondents preferred three writ petitions before the High Court which have been heard and disposed of by a common order impugned in these appeals. The High Court has allowed the writ petitions and quashed the order dated 22.6.1998 passed by the Collector.

In Civil Appeal Nos. 6266-6268/98 no rules or regulations of Janta Aghadi are shown to have been filed with the Collector. The record does not show that any such rules or regulations exist. Had they been there an effort could have been made to find out authorization to issue whip having been provided therein. During the course of hearing we asked the learned Counsel for the appellant to show any resolution of Janta Aghadi authorizing the signatories of the whip to issue the whip. No such resolution was filed before the Collector or the High Court and not even shown to us. The contents of the whip do not also contain any recital spelling out the existence of any such authorization which also goes to show that there was no such authorization given. In the absence of proof of the signatories of the whip having been authorized by the Janta Aghadi to issue the whip the violation thereof would not attract the applicability of Section 3(1)(b) of the Act. May be that the party, Aghadi or front had resolved to sponsor a particular persons candidature at the election. Acting contrary to such resolution, howsoever strongly worded, may render its member liable to disciplinary proceedings at the party level. But to incur disqualification under the Act there must be a direction issued and such direction must be either by the party, Aghadi or front to which the Councillor proceeded against belongs or be by any person or authority authorized in this behalf. Mere resolution is not a substitute for direction. On this single ground alone the judgment of the High Court deserves to be maintained.

40. Technically, this Court could have observed differently and in different language considering the structure of the application, i.e., Application No. 32 of 2008, but in view of the fact that the parties have agreed to deal with the applications jointly and to lead e idence in one of the applications and when ultimate finding recorded by the Designated Officer is found absolutely legal and proper, both the present petitions can be simultaneously dismissed.

41. Considering the totality of the facts and circumstances of the case and in view of the aforesaid discussion, both the above petitions are dismissed with costs, the same are quantified at Rs. 5,000/- in each petition. Rule is discharged in each of the petition.