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SCA/4188/2011 11/ 11 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4188 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
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1.
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2.
To
be referred to the Reporter or not ?
3.
Whether
their Lordships wish to see the fair copy of the judgment ?
4.
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5.
Whether
it is to be circulated to the civil judge ?
=========================================
SUNIL
NARSINH HATHILA & 13 - Petitioner(s)
Versus
DESIGNATED
AUTHORITY UNDER THEGUJARAT PROVISION FOR DISQULIF & 1 -
Respondent(s)
=========================================
Appearance :
MR
DILIP B RANA for
Petitioner(s) : 1 - 14.
MR. PRANAV DAVE, AGP for Respondent(s) :
1,
HL PATEL ADVOCATES for Respondent(s) :
2,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
:22/04/2011
CAV
JUDGMENT
1. By
way of this petition under Article 226 of the Constitution of India,
the petitioners have prayed for an appropriate writ, direction and /
or order quashing and setting aside the impugned order passed by the
Designated Officer under the provisions for Disqualification of
Members of the Local Authorities of Defection Act 1986 and Rules,
1987 (hereinafter referred to as the “Act & Rules”)
dated 24.3.2011 passed in Appeal No.51 of 2010, by which the
Designated Officer has passed an order to disqualify the petitioners
under Section 6 of the Act r/w Rule 3(1)(B) and Rule 6 of the Rules,
1987 disqualifying the petitioners as member of Jalod Taluka
Panchayat.
2. The
facts leading to the present Special Civil Application in nutshell
are as under:
2.1. All
the petitioners were elected as member of the Jalod Taluka Panchayat,
elected in an election held on 2.10.2010. The total strength of the
panchayat is 35 members out of which 22 members were elected on the
symbol of BJP and 12 members have been elected on the symbol of
Indian National Congress and one member is from independent party.
That all the petitioners were elected on the symbol of BJP. That
first meeting of the panchayat to elect the President of the Taluka
Panchayat was to be convened and held on 9.11.2010. It is the case of
the petitioners that so averred in the petition is that Zalod Taluka
Sankalan Samittee hold meeting on 29.10.2010 and it was resolved to
elect petitioner no.2 herein Rameshbhai Bachubhai Damor as President
of the Taluka Panchayat and accordingly further steps has taken to
elect him. It is the case of the petitioners that Pradesh Pramukh of
BJP Shri R.C. Fardu issued mandate /whip on 7.11.2010 authorizing
District President of BJP, Dahod, Shri Maheshbhai Bhuriya, indicating
the members to be elected on the post of President and Vice President
of the Panchayat. It is the case of the petitioners that the said
whip was never served on the petitioners and / or any of the members
of the panchayat who were elected on the symbol of BJP. According to
the petitioners they visited to the Dahod District Party Office to
meet Jilla Pramukh Shri Maheshbhai Bhuriya and inquired about any
mandate to vote in the election of President and Vice President of
the Taluka Panchayat, however no information was supplied and the
petitioners were informed that the mandate will be served tomorrow by
the authorized person. According to the petitioners, District
President issued a letter dated 9.11.2010 addressing to Rameshbhai
Hathila for service of mandate to the elected members of the BJP
penal, but the said letter was never served on the elected members
before the election and the petitioners were not intimated about the
mandate and the process of election started at the scheduled i.e.
9.11.2010. That meeting for electing the President and Vice President
of the Taluka Panchayat started at 12 noon on 9.11.2010 in which one
one Bhaveshkumar B. Katara secured 8 votes and Rameshbhai B. Damor
secured 26 votes and accordingly the petitioner no.2 was declared as
elected President of Zalod Taluka Panchayat and one Sunilbhai N.
Datila was declared uncontested as Vice President of Zalod Taluka
Panchayat. That thereafter, respondent no.2 approached the Designated
Officer under the Act being Application No.51 of 2010 declaring
petitioners to disqualify as member of the Panchayat under the
Provision of the Act alleging inter alia that despite the mandate /
whip issued by the appropriate authorities on dated 9.11.2010, the
petitioner no.2 contested the election for the post of President and
the respective petitioners cast their votes in favour of the
petitioner No.2 despite the contrary mandate, therefore, it is
submitted that respective petitioners have incurred disqualification
as their act has not been condoned by the party.
2.2. That
the respective petitioners contested the aforesaid application by
submitting that as such no mandate / whip was served upon the
petitioners. It was also the specific case on behalf of the
petitioners that in fact they tried to get information whether any
whip/ mandate has been issued with respect to election of President,
however there was no intimation. It was also the case of the
petitioners even no such mandate / whip was given to the Presiding
Officer and even it was not read over at the commencement of the
meeting. It was also the specific case on behalf of the petitioners
that in fact one Rameshbha Hathila who was entrusted the work to
serve whip and who did not serve whip / mandate to the petitioners
and other members, was served with the show cause notice by the party
of the District President BJP and therefore, it was established that
the whip has not been served upon the members / petitioners and
others. Therefore, it is requested to dismiss the said application.
2.3. That
Designated Officer by impugned order dated 24.3.2011 allowed the
aforesaid application by observing that no efforts were made by the
petitioners to get information whether any whip has been issued by
the party or not and nothing has been produced whether the act of the
petitioners has been condoned by the party or not and consequently
held that the respective petitioners have acted contrary to the whip/
mandate issued by the Pradesh Pramukh and consequently declared the
petitioners as disqualified as member of the Jalod Taluka Panchayat.
Hence, petitioners have preferred the present Special Civil
Application under Article 226 of the Constitution of India.
3.0. Shri
B.B. Naik, learned Senior Advocate has appeared with Shri Dilip Rana,
learned advocate for the petitioners. Shri Naik, learned Senior
Advocate for the petitioners has vehemently submitted that the
Designated Officer has materially erred in holding that the
petitioners have acted contrary to the mandate / whip issued by the
Jilla President, BJP. It is submitted that as such no whip / mandate
has been served upon the petitioners and/ or any members belonging to
the BJP. It is submitted that as such one Rameshbhai Hathila was
entrusted the duty of serving the whip/ mandate in respect to the
post of President of Jalod Taluka Panchayat, however the said
Rameshbhai Hathila did not serve the whip/ mandate upon any of the
petitioners and/ or members. It is submitted that in fact President
BJP, Dahod District serving show cause notice upon said Rameshbhai
Hathila dated 11.10.2010 seeking explanation of the said Rameshbhai
Hathila why the whip / mandate has not been served upon the
petitioners and the members of the Taluka Panchayat belonging to the
BJP, which was replied by the said Rameshbhai Hathila vide
explanation dated 13.11.2010. Therefore, it is submitted that it is
provided that no mandate / whip issued by the President BJP and/ or
District President BJP was served upon any of the members of the
Panchayat belonging to the BJP. It is submitted that therefore, when
admittedly the whip was not served upon the petitioners there was no
question of acting contrary to the said whip by the petitioners and
therefore, the petitioners could not have been declared disqualified
as member of the panchayat on the ground that the petitioners have
committed a breach of mandate and/ or have acted contrary to the
mandate of whip.
3.1. Shri
Naik, learned Senior Advocate for the petitioners has further
submitted that even it was specific case on behalf of the petitioners
that petitioners have even tried to get information on 8.11.2011 from
the District President, BJP, Dahod with respect to any mandate and
the petitioners were informed that till then there is no whip
received and they will be informed at the time of election which was
never informed to the members belonging to the BJP. It is submitted
that therefore, even the efforts were made by the petitioners to get
information whether any whip has been issued or not therefore, the
observations made by the Designated Officer that petitioners have not
even tried to get necessary information with respect to mandate is
factually incorrect. It is further submitted that even the
petitioners sought permission to cross examine the District
President, BJP, Dahod on the aforesaid. It is further submitted by
Shri Naik, learned Senior Advocate for the petitioners that even no
such intimation with respect to any mandate or whip was given to the
Presiding Officer. It is further submitted that even no such whip or
mandate was read over at the time of election. Therefore, it is
submitted that the Designated Officer has committed an error in
holding that the petitioners have acted contrary to the whip/ mandate
and consequently the Designated Officer has materially erred in
declaring the petitioners disqualifying as member of the Jalod Taluka
Panchayat. Therefore, it is requested to allow the Special Civil
Application and quashed and set aside the impugned order.
4. Petition
is opposed by Shri Ashim Pandya, learned advocate for H.L. Patel
Advocates appearing for the respondent no.2 original applicant and
Shri Dave, learned AGP appearing on behalf of the respondent no.1. It
is submitted by Shri Pandya, learned advocate for the respondent
no.2-original applicant that in fact mandate was issued by the
President BJP on dated 7.11.2010 and the petitioners have acted
contrary to the said whip / mandate and their act has not been
condoned by the party and in fact petitioners were served with the
show cause notice by the party and therefore, designated officer has
rightly passed the impugned order to disqualify the petitioners as
members of the Jalod Taluka Panchayat and therefore, it is requested
to dismiss the present petition.
4.1. It
is further submitted by Shri Pandya, learned advocate for the
respondent no.2 that in fact it was the duty cast upon the
petitioners to inquire about any mandate / whip at the time of
election and not on the earlier date and therefore, designated
officer has rightly passed an order to disqualify the petitioners by
observing that it was the duty cast upon the petitioners to inquire
about any mandate, which the petitioners have failed and therefore,
it is requested to dismiss the present Special Civil Application.
4.2. Shri
Dave, learned AGP appearing on behalf of the respondent no.1
designated officer has submitted that under Order 20 the duty cast
upon the concerned members to inquire with respect to any whip/
mandate and nothing was on record whether any such attempt was made
and therefore, the designated officer has rightly passed an order
declaring the petitioners as disqualified as members of the Jalod
Taluka Panchayat.
5.0. Heard
the learned advocates appearing on behalf of the respective parties.
At the outset, it is required to be noted that it is the case of the
respondent no.2 that whip was issued with respect to the post of the
President of Jalod Taluka Panchayat by the Pradesh Pramukh of BJP
Shri R.C. Fardu on dated 7.11.2010 by which it was decided that one
Mr. Bhaveshkumar B. Katara would contest the election for post of
President of the Jalod Taluka Panchayat and despite the same the
respective petitioners, more particularly, petitioner no.2 contested
the election for the post of President of the Jalod Taluka Panchayat
and the respective petitioners cast their votes in his favour which
is just contrary to the whip/ mandate dated 7.11.2010. Considering
the statement made by the learned advocates for the respective
parties and the document on record, it appears that by communication
dated 7.11.2010 the Pradesh Pramukh, BJP Shri R.C. Fardu authorized
Shri Maheshbhai Bhuriya, BJP Dahod to issue the mandate / whip as per
the communication dated 7.11.2010. Nothing is on record whether any
further mandate was issued by the said Shri Maheshbhai Bhuriya. Be
that as it may even treating the said communication dated 7.11.2010
as the mandate issued by the party in that case, it appears that said
Shri Maheshbhai Bhuriya, BJP, Dahod entrusted the work of serving the
said mandate / whip to the members of the Taluka Panchayat belonging
to the BJP to one Shri Ramesbhai Hathila and it is an admitted
position that the said Shri Rameshbhai Hathila did not serve any
whip/mandate to the petitioners and/or others members Taluka
Panchayat, Jalod belonging to the BJP. Not only that even the
President BJP, Dahod District serving show cause notice upon said
Rameshbhai Hathila dated 11.110.2010 seeking explanation of the said
Rameshbhai Hathila why the whip / mandate has not been served upon
the petitioners and the members of the Taluka Panchayat belonging to
the BJP, which was replied by the said Rameshbhai Hathila vide
explanation dated 13.11.2010. Thus, it is established that no
whip/mandate was served upon the petitioners. Even from the reply
dated 13.11.2010 by the said Rameshbhai Hathila addressed to Shri
Mahesh Bhuriya, District President, BJP, Dahod, it appears that the
local people / members were not in favour of Bhaveshkumar B. Katara
whose name was selected for the post of President of Jalod Taluka
Panchayat for the reasons stated in the said communication / reply
and therefore, it appears that the said Rameshbhai Hathila might not
have served the whip/ mandate upon the members of the Taluka
Panchayat belonging to the BJP. Be that as it may, the fact remains
that the whip/mandate was not served upon the petitioners and when
the whip/mandate was not served on the petitioners, there was no
question of any breach by the petitioners and / or acting contrary to
the said whip/mandate. Considering the provisions of the Act, more
particularly Section 3 / Rule 3 the mandate / whip was required to be
served upon the concerned members. It also appears that even the
respective petitioners have also tried to get information on
8.11.2010 from the District President, BJP, Dahod with respect to any
mandate and it is the case of the petitioners that they were informed
that no such mandate has been received and the respective petitioners
will be informed at the time of election. Therefore, even the efforts
were made by the petitioners to get information with respect to any
mandate issued by the party. Nothing is on record that any mandate
was served upon the petitioners at the time of election and/ or it
was brought to the notice of the petitioners. Nothing is on record
that copy of any mandate / whip was given to the Presiding Officer
at the time of election. Nothing is on record that the mandate /whip
issued by the party of which the breach is alleged, was read over at
the time of election. Considering the aforesaid facts and
circumstances, Designated Officer erred in holding that the
petitioners have acted contrary to the whip/mandate and have incurred
disqualification under the Act. From the impugned order, it appears
that the Designated Officer has observed that it was the duty cast
upon the petitioners to inquire from the party whether any mandate
was issued or not and therefore, it is not believable that the
petitioners were not aware of any mandate /whip issued by the party.
The aforesaid finding is on surmise and conjectures. On the other
hand it has been found that in fact persons who was entrusted the
work of serving summons has not served whip/mandate upon the
petitioners and other members belonging to the BJP and as stated
above his explanation was also sought. Considering the aforesaid
facts and circumstances of the case, the impugned order passed by the
Designated Officer cannot be sustained and same deserves to be
quashed and set aside.
6. In
view of the above and for the reasons stated above, petition
succeeds. The impugned order passed by the Designated Officer dated
24.3.2011 passed in Appeal No.51 of 2010 disqualifying the
petitioners as member of the Jalod Taluka Panchayat under the
provisions of the Act is hereby quashed and set aside. Rule is made
absolute to the aforesaid extent. No cost. Direct service is
permitted.
(M.R.SHAH,
J.)
kaushik
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