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SCA/1964/2011 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1964 of 2011
=========================================================
PUSHPABEN
MANUBHAI VANIYA - Petitioner(s)
Versus
KISHORSINH
MANSINH VAGEHLA & 1 - Respondent(s)
=========================================================
Appearance
:
MR
UA TRIVEDI for
Petitioner(s) : 1,
MRM.IQBALASHAIKH for Respondent(s) : 1,
MS
MAITHILI MEHTA, AGP for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 14/02/2011
ORAL
ORDER
1. One Smt.Pushpaben
Manubhai Vaniya is before this Court being aggrieved by an order
passed by respondent No.2 – Shri M.V.Joshi or his successor in
his office of Designated Authority and Settlement Commissioner and
Director, Land Records, State Government dated 07.02.2011, a copy of
which is produced at Annexure-C, page No.60.
2. Learned Advocate
Mr.U.A.Trivedi for the petitioner vehemently submitted that the
authority has committed an error in not answering the contention
raised by the petitioner that, ‘whip in question was not issued by
the authority recognized for the purpose’. In this regard, he relied
upon Clause-(b) of sub-section (1) of Section 3 of the Act, i.e.
Gujarat Provision for Disqualification of Members of Local Authority
for Defection Act, 1986.
3. The very name of the
Act suggests that it is for the purpose of curbing the indiscipline
prevailing in the elected members of all the parties. The very
object of the Act will be frustrated if the matters are decided on
such technical grounds.
3.1 The facts of the
case which are not in dispute are that a whip was issued by the
District President of the Congress Committee. This whip was received
by all other elected members and except the petitioner herein,
everybody obeyed the whip. Taking a plea in the nature of splitting
hair and submit that whip is not issued by the competent authority of
the party should have been brought to the notice of the party office
bearers so that if found substance in that, they could have condoned
the lapse on the part of the petitioner. But, that is not done.
4. Learned Advocate for
the petitioner submitted that the reference to Rule-10 of 1987 Rules
by the Designated Authority is not warranted.
5. The said Rule is
made only with a view to take further, the object of the Act.
By that Rule, an obligation is cast on an elected member to ascertain
the whip and if required, also ascertain the legality and validity
of such whip. The petitioner has chosen not to undertake that
exercise, though she very well knew that whip is issued. It is only
an afterthought that a defence is taken to the effect that the whip
is not issued by the competent authority of the party.
6. Learned Advocate for
the petitioner relied upon a decision of the Hon’ble the Apex Court
in the matter of Sadashiv H.Patil etc. Vs. Vithal D.Teke &
Ors., reported in AIR 2000 S.C. 3044. He invited
attention of the Court to paras-13 and 14 of the judgment and
submitted that the provisions are para-materia. Paras-13 and 14 of
the judgment are reproduced for ready perusal:-
“13. A finding
as to disqualification under the Act has the effect of unseating a
person from an elected office held by him pursuant to his victory at
the polls in accordance with democratic procedure of constituting a
local authority. The consequences befall not only him as an
individual but also the constituency represented by him which would
cease to be represented on account of his having been disqualified.
Looking at the penal consequences flowing from an elected Councillor
being subjected to disqualification and its repercussion on the
functioning of the local body as also the city or township governed
by the local body the provisions have to be construed
strictly. A rigorous compliance with the provisions of the Act and
the Rules must be shown to have taken place while dealing with a
reference under Section 7 of the Act.
14. 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 authorisation 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 authorising 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
authorisation which also goes to show that there was no such
authorisation given. In the absence of proof of the signatories of
the whip having been authorised 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 authorised 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.
7. The Court is not
able to accept the contention raised by the learned Advocate for the
petitioner for the simple reason that the petitioner has not
approached this Court with clean hands. If at all the petitioner was
acting in a bonafide, the moment she learnt about whip, she should
have inquired about the same and she should have ascertain the
things.
8. In the result, the
petition fails and the same is dismissed.
(Ravi
R.Tripathi, J.)
*Shitole
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