{"id":157957,"date":"2011-04-22T00:00:00","date_gmt":"2011-04-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/whether-vs-designated-on-22-april-2011"},"modified":"2017-11-17T02:05:21","modified_gmt":"2017-11-16T20:35:21","slug":"whether-vs-designated-on-22-april-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/whether-vs-designated-on-22-april-2011","title":{"rendered":"Whether vs Designated on 22 April, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Whether vs Designated on 22 April, 2011<\/div>\n
Author: M.R. Shah,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/4188\/2011\t 11\/ 11\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 4188 of 2011\n \n\n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE M.R. SHAH\n \n=========================================\n \n\t  \n\t \n\t \n\t \n\t\t \n\t\t\t \n\t\t\t\t \n\n1.\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nWhether\n\t\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\t\n\t\t\t \n\t\t\t\t \n\n \n\n\t\t\t\t\n\t\t\t\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\t\t\t\t \n\n2.\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nTo\n\t\t\t\tbe referred to the Reporter or not ?\n\t\t\t\n\t\t\t \n\t\t\t\t \n\n \n\n\t\t\t\t\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\t\t\t\t \n\n3.\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nWhether\n\t\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\t\n\t\t\t \n\t\t\t\t \n\n \n\n\t\t\t\t\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\t\t\t\t \n\n4.\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nWhether\n\t\t\t\tthis case involves a substantial question of law as to the\n\t\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\t\tmade thereunder ?\n\t\t\t\n\t\t\t \n\t\t\t\t \n\n \n\n\t\t\t\t\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\t\t\t\t \n\n5.\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nWhether\n\t\t\t\tit is to be circulated to the civil judge ?\n\t\t\t\n\t\t\t \n\t\t\t\t \n\n \n\n\t\t\t\t\n\t\t\t\n\t\t\n\t\n\n \n\n=========================================\n\n\n \n\nSUNIL\nNARSINH HATHILA & 13 - Petitioner(s)\n \n\nVersus\n \n\nDESIGNATED\nAUTHORITY UNDER THEGUJARAT PROVISION FOR DISQULIF & 1 -\nRespondent(s)\n \n\n=========================================\n \nAppearance : \nMR\nDILIP B RANA for\nPetitioner(s) : 1 - 14. \nMR. PRANAV DAVE, AGP for Respondent(s) :\n1, \nHL PATEL ADVOCATES for Respondent(s) :\n2, \n=========================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE M.R. SHAH\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n:22\/04\/2011 \n\n \n\n \nCAV\nJUDGMENT \n<\/pre>\n
1.\tBy
\nway of this petition under Article 226 of the Constitution of India,
\nthe petitioners have prayed for an appropriate writ, direction and \/
\nor order quashing and setting aside the impugned order passed by the
\nDesignated Officer under the provisions for Disqualification of
\nMembers of the Local Authorities of Defection Act 1986 and Rules,
\n1987 (hereinafter referred to as the “Act & Rules”)
\ndated 24.3.2011 passed in Appeal No.51 of 2010, by which the
\nDesignated Officer has passed an order to disqualify the petitioners
\nunder Section 6 of the Act  r\/w Rule 3(1)(B) and Rule 6 of the Rules,
\n1987 disqualifying the petitioners as member of Jalod Taluka
\nPanchayat.\n<\/p>\n
2.\tThe
\nfacts leading to the present Special Civil Application  in nutshell
\nare as under:\n<\/p>\n
2.1.\tAll
\nthe petitioners were elected as member of the Jalod Taluka Panchayat,
\nelected in an election held on 2.10.2010. The total strength of the
\npanchayat is 35 members out of which 22 members were elected on the
\nsymbol of BJP and 12 members have been elected on the symbol of
\nIndian National Congress and one member is from independent party.
\nThat all the petitioners were elected on the symbol of BJP. That
\nfirst meeting of the panchayat to elect the President of the Taluka
\nPanchayat was to be convened and held on 9.11.2010. It is the case of
\nthe petitioners that so averred in the petition is that Zalod Taluka
\nSankalan Samittee hold meeting on 29.10.2010 and it was resolved to
\nelect petitioner no.2 herein Rameshbhai Bachubhai Damor as President
\nof the Taluka Panchayat and accordingly further steps has taken to
\nelect him. It is the case of the petitioners that Pradesh Pramukh of
\nBJP Shri R.C. Fardu issued mandate \/whip on 7.11.2010 authorizing
\nDistrict President of BJP, Dahod, Shri Maheshbhai Bhuriya, indicating
\nthe members to be elected on the post of President and Vice President
\nof the Panchayat. It is the case of the petitioners that the said
\nwhip was never served on the petitioners and \/ or any of the members
\nof the panchayat who were elected on the symbol of BJP. According to
\nthe petitioners they visited to the Dahod District Party Office to
\nmeet Jilla Pramukh Shri Maheshbhai Bhuriya and inquired about any
\nmandate to vote in the election of President and Vice President of
\nthe Taluka Panchayat, however no information was supplied and the
\npetitioners were informed that the mandate will be served tomorrow by
\nthe authorized person. According to the petitioners, District
\nPresident issued a letter dated 9.11.2010 addressing to Rameshbhai
\nHathila for service of mandate to the elected members of the BJP
\npenal, but the said letter was never served on the elected members
\nbefore the election and the petitioners were not intimated about the
\nmandate and the process of election started at the scheduled i.e.
\n9.11.2010. That meeting for electing the President and Vice President
\nof the Taluka Panchayat started at 12 noon on 9.11.2010 in which one
\none Bhaveshkumar B. Katara secured 8 votes and Rameshbhai B. Damor
\nsecured 26 votes and accordingly the petitioner no.2 was declared as
\nelected President of Zalod Taluka Panchayat and one Sunilbhai N.
\nDatila was declared uncontested as Vice President of Zalod Taluka
\nPanchayat. That thereafter, respondent no.2 approached the Designated
\nOfficer under the Act being Application No.51 of 2010 declaring
\npetitioners to disqualify as member of the Panchayat under the
\nProvision of the Act alleging inter alia that despite the mandate \/
\nwhip issued by the appropriate authorities on dated 9.11.2010, the
\npetitioner no.2 contested the election for the post of President and
\nthe respective petitioners cast their votes in favour of the
\npetitioner No.2 despite the contrary mandate, therefore, it is
\nsubmitted that respective petitioners have incurred disqualification
\nas their act has not been condoned by the party.\n<\/p>\n
2.2.\tThat
\nthe respective petitioners contested the aforesaid application by
\nsubmitting that as such no mandate \/ whip was served upon the
\npetitioners. It was also the specific case on behalf of the
\npetitioners that in fact they tried to get information whether any
\nwhip\/ mandate has been issued with respect to election of President,
\nhowever there was no intimation. It was also the case of the
\npetitioners even no such mandate \/ whip was given to the Presiding
\nOfficer and even it was not read over at the commencement of the
\nmeeting. It was also the specific case on behalf of the petitioners
\nthat in fact one Rameshbha Hathila who was entrusted the work to
\nserve whip and who did not serve whip \/ mandate to the petitioners
\nand other members, was served with the show cause notice by the party
\nof the District President BJP and therefore, it was established that
\nthe whip has not been served upon the members \/ petitioners and
\nothers. Therefore, it is requested to dismiss the said application.\n<\/p>\n
2.3.\tThat
\nDesignated Officer by impugned order dated 24.3.2011 allowed the
\naforesaid application by observing that no efforts were made by the
\npetitioners to get information whether any whip has been issued by
\nthe party or not and nothing has been produced whether the act of the
\npetitioners has been condoned by the party or not and consequently
\nheld that the respective petitioners have acted contrary to the whip\/
\nmandate issued by the Pradesh Pramukh and consequently declared the
\npetitioners as disqualified as member of the Jalod Taluka Panchayat.
\nHence, petitioners have preferred the present Special Civil
\nApplication under Article 226 of the Constitution of India.\n<\/p>\n
3.0.\tShri
\nB.B. Naik, learned Senior Advocate has appeared with Shri Dilip Rana,
\nlearned advocate for the petitioners. Shri Naik, learned Senior
\nAdvocate for the petitioners has vehemently submitted that the
\nDesignated Officer has materially erred in holding that the
\npetitioners have acted contrary to the mandate \/ whip issued  by the
\nJilla President, BJP. It is submitted that as such no whip \/ mandate
\nhas been served upon the petitioners and\/ or any members belonging to
\nthe BJP. It is submitted that as such one Rameshbhai Hathila was
\nentrusted the duty of serving the whip\/ mandate in respect to the
\npost of President of Jalod Taluka Panchayat, however the said
\nRameshbhai Hathila did not serve the whip\/ mandate upon any of the
\npetitioners and\/ or members. It is submitted that in fact President
\nBJP, Dahod District serving show cause notice upon said Rameshbhai
\nHathila dated 11.10.2010 seeking explanation of the said Rameshbhai
\nHathila why the whip \/ mandate has not been served upon the
\npetitioners and the members of the Taluka Panchayat belonging to the
\nBJP, which was replied by the said Rameshbhai Hathila vide
\nexplanation dated 13.11.2010. Therefore, it is submitted that it is
\nprovided that no mandate \/ whip issued by the President BJP and\/ or
\nDistrict President BJP was served upon any of the members of the
\nPanchayat belonging to the BJP. It is submitted that therefore, when
\nadmittedly the whip was not served upon the petitioners there was no
\nquestion of acting contrary to the said whip by the petitioners and
\ntherefore, the petitioners could not have been declared disqualified
\nas member of the panchayat on the ground that the petitioners have
\ncommitted a breach of mandate and\/ or have acted contrary to the
\nmandate of whip.\n<\/p>\n
3.1.\tShri
\nNaik, learned Senior Advocate for the petitioners has further
\nsubmitted that even it was specific case on behalf of the petitioners
\nthat petitioners have even tried to get information on 8.11.2011 from
\nthe District President, BJP, Dahod with respect to any mandate and
\nthe petitioners were informed that till then there is no whip
\nreceived and they will be informed at the time of election which was
\nnever informed to the members belonging to the BJP. It is submitted
\nthat therefore, even the efforts were made by the petitioners to get
\ninformation whether any whip has been issued or not therefore, the
\nobservations made by the Designated Officer that petitioners have not
\neven tried to get necessary information with respect to mandate is
\nfactually incorrect. It is further submitted that even the
\npetitioners sought permission to cross examine the District
\nPresident, BJP, Dahod on the aforesaid. It is further submitted by
\nShri Naik, learned Senior Advocate for the petitioners that even no
\nsuch intimation with respect to any mandate or whip was given to the
\nPresiding Officer. It is further submitted that even no such whip or
\nmandate was read over at the time of election. Therefore, it is
\nsubmitted that the Designated Officer has committed an error in
\nholding that the petitioners have acted contrary to the whip\/ mandate
\nand consequently the Designated Officer has materially erred in
\ndeclaring the petitioners disqualifying as member of the Jalod Taluka
\nPanchayat. Therefore, it is requested to allow the Special Civil
\nApplication  and quashed and set aside the impugned order.\n<\/p>\n
4.\tPetition
\nis opposed by Shri Ashim Pandya, learned advocate  for H.L. Patel
\nAdvocates appearing for the respondent no.2 original applicant and
\nShri Dave, learned AGP appearing on behalf of the respondent no.1. It
\nis submitted by Shri Pandya, learned advocate for the respondent
\nno.2-original applicant that in fact mandate was issued by the
\nPresident BJP on dated 7.11.2010 and the petitioners have acted
\ncontrary to the said whip \/ mandate and their act has not been
\ncondoned by the party and in fact petitioners were served with the
\nshow cause notice by the party and therefore, designated officer has
\nrightly passed the impugned order to disqualify the petitioners as
\nmembers of the Jalod Taluka Panchayat and therefore, it is requested
\nto dismiss the present petition.\n<\/p>\n
4.1.\tIt
\nis further submitted by Shri Pandya, learned advocate for the
\nrespondent no.2 that in fact it was the duty cast upon the
\npetitioners to inquire about any mandate \/ whip at the time of
\nelection and not on the earlier date and therefore, designated
\nofficer has rightly passed an order to disqualify the petitioners by
\nobserving that it was the duty cast upon the petitioners to inquire
\nabout any mandate, which the petitioners have failed and therefore,
\nit is requested to dismiss the present Special Civil Application.\n<\/p>\n
4.2.\tShri
\nDave, learned AGP appearing on behalf of the respondent no.1
\ndesignated officer has submitted that under Order 20 the duty cast
\nupon the concerned members to inquire with respect to any whip\/
\nmandate and nothing was on record whether any such attempt was made
\nand therefore, the designated officer has rightly passed an order
\ndeclaring the petitioners as disqualified as members of the Jalod
\nTaluka Panchayat.\n<\/p>\n
5.0.\tHeard
\nthe learned advocates appearing on behalf of the respective parties.
\nAt the outset, it is required to be noted that it is the case of the
\nrespondent no.2 that whip was issued with respect to the post of the
\nPresident of Jalod Taluka Panchayat by the Pradesh Pramukh of BJP
\nShri R.C. Fardu on dated 7.11.2010 by which it was decided that one
\nMr. Bhaveshkumar B. Katara would contest the election for post of
\nPresident of the Jalod Taluka Panchayat and despite the same the
\nrespective petitioners, more particularly, petitioner no.2 contested
\nthe election for the post of President of the Jalod Taluka Panchayat
\nand the respective petitioners cast their votes in his favour which
\nis just contrary to the whip\/ mandate dated 7.11.2010. Considering
\nthe statement made by the learned advocates for the respective
\nparties and the document on record, it appears that by communication
\ndated 7.11.2010 the Pradesh Pramukh, BJP Shri R.C. Fardu authorized
\nShri Maheshbhai Bhuriya, BJP Dahod to issue the mandate \/ whip as per
\nthe communication dated 7.11.2010. Nothing is on record whether any
\nfurther mandate was issued by the said Shri Maheshbhai Bhuriya. Be
\nthat as it may even treating the said communication dated 7.11.2010
\nas the mandate issued by the party in that case, it appears that said
\nShri Maheshbhai Bhuriya, BJP, Dahod entrusted the work of serving the
\nsaid mandate \/ whip to the members of the Taluka Panchayat belonging
\nto the BJP to one Shri Ramesbhai Hathila and it is an admitted
\nposition that the said Shri Rameshbhai Hathila did not serve any
\nwhip\/mandate to the petitioners and\/or others members Taluka
\nPanchayat, Jalod belonging to the BJP. Not only that even the
\nPresident BJP, Dahod District serving show cause notice upon said
\nRameshbhai Hathila dated 11.110.2010 seeking explanation of the said
\nRameshbhai Hathila why the whip \/ mandate has not been served upon
\nthe petitioners and the members of the Taluka Panchayat belonging to
\nthe BJP, which was replied by the said Rameshbhai Hathila vide
\nexplanation dated 13.11.2010. Thus, it is established that no
\nwhip\/mandate was served upon the petitioners. Even from the reply
\ndated 13.11.2010 by the said Rameshbhai Hathila addressed to Shri
\nMahesh Bhuriya, District President, BJP, Dahod, it appears that the
\nlocal people \/ members were not in favour of Bhaveshkumar B. Katara
\nwhose name was selected for the post of President of Jalod Taluka
\nPanchayat for the reasons stated in the said communication \/ reply
\nand therefore, it appears that the said Rameshbhai Hathila might not
\nhave served the whip\/ mandate upon the members of the Taluka
\nPanchayat belonging to the BJP. Be that as it may, the fact remains
\nthat the whip\/mandate was not served upon the petitioners and when
\nthe whip\/mandate was not served on the petitioners, there was no
\nquestion of any breach by the petitioners and \/ or acting contrary to
\nthe said whip\/mandate. Considering the provisions of the Act, more
\nparticularly Section 3 \/ Rule 3 the mandate \/ whip was required to be
\nserved upon the concerned members. It also appears that even the
\nrespective petitioners have also tried to get information on
\n8.11.2010 from the District President, BJP, Dahod with respect to any
\nmandate and it is the case of the petitioners that they were informed
\nthat no such mandate has been received and the respective petitioners
\nwill be informed at the time of election. Therefore, even the efforts
\nwere made by the petitioners to get information with respect to any
\nmandate issued by the party. Nothing is on record that any mandate
\nwas served upon the petitioners at the time of election and\/ or it
\nwas brought to the notice of the petitioners. Nothing is on record
\nthat copy of any mandate \/ whip   was given to the Presiding Officer
\nat the time of election. Nothing is on record that the mandate \/whip
\nissued by the party of which the breach is alleged, was read over at
\nthe time of election. Considering the aforesaid facts and
\ncircumstances, Designated Officer erred in holding that the
\npetitioners have acted contrary to the whip\/mandate and have incurred
\ndisqualification under the Act. From the impugned order, it appears
\nthat the Designated Officer has observed that it was the duty cast
\nupon the petitioners to inquire from the party whether any mandate
\nwas issued or not and therefore, it is not believable that the
\npetitioners were not aware of any mandate \/whip issued by the party.
\nThe aforesaid finding is on surmise and conjectures. On the other
\nhand it has been found that in fact persons who was entrusted the
\nwork of serving summons has not served whip\/mandate upon the
\npetitioners and other members belonging to the BJP and as stated
\nabove his explanation was also sought. Considering the aforesaid
\nfacts and circumstances of the case, the impugned order passed by the
\nDesignated Officer cannot be sustained and same deserves to be
\nquashed and set aside.\n<\/p>\n
6.\tIn
\nview of the above and for the reasons stated above, petition
\nsucceeds. The impugned order passed by the Designated Officer dated
\n24.3.2011 passed in Appeal No.51 of 2010 disqualifying the
\npetitioners as member of the Jalod Taluka Panchayat under the
\nprovisions of the Act is hereby quashed and set aside. Rule is made
\nabsolute to the aforesaid extent. No cost. Direct service is
\npermitted.\n<\/p>\n
(M.R.SHAH,
\nJ.)<\/p>\n
kaushik<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Whether vs Designated on 22 April, 2011 Author: M.R. Shah,&Nbsp; Gujarat High Court Case Information System Print 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 ========================================= 1. Whether Reporters of Local Papers may […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-157957","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nWhether vs Designated on 22 April, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/whether-vs-designated-on-22-april-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Whether vs Designated on 22 April, 2011 - 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