Gujarat High Court
Arjunbhai Ghanshyambhai Khatariya vs State Of Gujarat on 26 February, 2019
Author: A.J. Desai
Bench: A.J.Desai
C/SCA/673/2019 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 673 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J.DESAI Sd/
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India or any
order made thereunder ?
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ARJUNBHAI GHANSHYAMBHAI KHATARIYA
Versus
STATE OF GUJARAT
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Appearance:
MR BHARAT T RAO(697) for the Petitioner(s) No. 1
MR JK SHAH, ASSTT. GOVERNMENT PLEADER/PP(99) for the Respondent(s)
No. 1
MR SIRAJ R GORI(2298) for the Respondent(s) No.
10,11,12,13,14,3,4,5,6,8,9
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,2,7
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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 26/02/2019
ORAL JUDGMENT
[1.0] RULE. Mr. J.K. Shah, learned AGP waives service of notice of Rule on behalf of the respondent No.1 and Mr. Siraj Gori, learned advocate waives service of notice of Rule on behalf of the respondent Nos.3 to 6 and 8 to 14. With the consent of learned advocates appearing for respective parties and since the contesting Page 1 of 9 C/SCA/673/2019 JUDGMENT respondents have also filed affidavit in reply on behalf of the respondent No.10, present petition is taken up for final hearing today.
[2.0] By way of present petition under Articles 14, 19 and 226 of the Constitution of India, following prayers have been made.
"(B) To issue a writ of mandamus or a writ in the nature of mandamus, or a writ in the nature of certiorari, or any other appropriate writ, order or direction, quashing and setting aside order dated 07.01.2019 passed by the respondent no.2 The Designated Authority under The Gujarat Provisions For Disqualification of Members of the Local Authorities for Defection Act, 1986 in Application No.63/2018 pending before him and decide the said application on merits;
(C) Pending admission, hearing and final disposal of the above Special Civil Application, to stay the order passed by R.No.2 on 07.01.2019 in Application No.63/2018 pending before the respondent no. 2 The Designated Authority under the Gujarat Provisions for Disqualification of Members of the Local Authorities for Defection Act, 1986 and direct the authority to proceed with Application No.63/2018, for the reason stated in petition;"
[3.0] The short facts arising from the record are as under:
[3.1] That the election of Rajkot District Panchayat was held in the month of November, 2015. That the Rajkot District Panchayat is constituted of 36 members and out of 36 members, 34 members won the election on symbol of Indian National Congress whereas 2 members got elected on the symbol of another National Party i.e. Bhartiya Janata Party. On completion of first term i.e. after 2 & ½ years from November, 2015, the election of the Vice President was held in the month of June 2018. The present petitioner, who belongs to Indian National Congress party, was elected as the President of Rajkot District Panchayat.Page 2 of 9
C/SCA/673/2019 JUDGMENT [3.2] As provided under the Panchayat Act, several committees were to be constituted and therefore, General Board meeting was scheduled on 27.07.2018. The President of Rajkot District Congress Committee issued a Whip on 27.07.2018 by which it was declared that all the members have to vote in favour of those members in the committee, as decided by the party. It was further mentioned in the said Whip that if any member of the party does not vote or votes contrary to the Whip, it should be treated as breach of Whip and action in accordance with law shall be taken against such members. That the said meeting of General Board was held on 27.07.2018 at 11 O' Clock in presence of the Election Officer. The said meeting was presided over by the competent Officer i.e. District Development Officer, Rajkot. The present petitioner declared the names of various committees whereas the respondent No.10 who is from the same party i.e. Indian National Congress has also disclosed his members of the Committee. That 35 members remained present and one member could not remain present since he was sick. The persons who were nominated by respondent No.10 herein got support from 22 members including 2 members from another party viz. Bhartiya Janata Party. In all committees, 13 persons supported those persons who were nominated by the present petitioner. Having found that 18 members from their own party have voted against the Whip, the party decided to take action against those persons, however while exercising powers under Rule 3(6) of the Gujarat Provisions for Disqualification of Members of the Local Authorities for Defection Rules, 1987 (hereinafter referred to as "Defection Rules"), pardoned six members, however decided to file an application under the provisions of the Gujarat Page 3 of 9 C/SCA/673/2019 JUDGMENT Provisions for Disqualification of Members of the Local Authorities for Defection Act, 1986 (hereinafter referred to as "Defection Act") and accordingly, an application under Section 6 of the Defection Act came to be filed by the present petitioner i.e. the President of Rajkot District Panchayat. The said application was filed in the month of September 2018. Since the application was not decided by the Designated Officer within a period of two months as provided under Rule 8 of the Defection Rules, a petition being Special Civil Application No.18759/2018 was filed by the present petitioner. The said petition was disposed of by this Court vide order dated 05.12.2018 and thereafter corrected vide order dated 26.12.2018 passed under a Note for Speaking to Minutes directing the Designated Authority to decide the petition filed by the petitioner under Section 6 of the Defection Act.
[3.3] Subsequent thereto the private respondents herein filed an application before the Designated Officer requesting him to direct the original applicant to produce certain documents and made several prayers which read as under:
"(A) That this Hon'ble Authority may be pleased to pass appropriate order directing the petitioner to produce the original copies of the documents more particularly documents indicating nonacceptance of Whip as well as documentary evidence indicating mode of attempted service of the Whip to the present applicants;
(B) That this Hon'ble Authority may be pleased to pass appropriate order directing the petitioner to produce and supply the copies of the document indicating nomination made by Indian National Congress as referred to in paragraph no. 6 of the captioned petition;
(C) That this Hon'ble Tribunal may be pleased to pass
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C/SCA/673/2019 JUDGMENT
appropriate order by drawing appropriate inference under the provisions of Section 114 illustration (g) of Evidence Act, 1872 that the present petitioner was not authorised to nominate candidates for the election of the various committees of the Rajkot District Panchayat;"
The said application was opposed by the present petitioner, however by the impugned order dated 07.01.2019, the Designated Officer allowed the said application in terms of paragraph 10(A) and 10(B) of the said application.
Hence, the present petition.
[4.0] Mr. B.T. Rao, learned advocate appearing on behalf of the petitioner has vehemently submitted that the authority has committed grave error in directing the petitioner to produce those documents which are required to be collected by the petitioner before the proceedings begun on 27.07.2018 i.e. the date on which several committees were to be constituted. By taking me through the Whip dated 27.07.2018 issued by the President of Rajkot District Congress Committee, he would submit that a specific direction was issued to the members of the party to elect members of those committees which are decided by the party. Whip was circulated to several persons, however some of the party members including the present respondents have refused to accept the Whip.
[4.1] By taking me through the proceedings recorded by the District Development Officer about the election, he would submit that the Whip was read over by the District Development Officer in presence of all the members and therefore, there is no need to supply the documents which are directed to be produced by the Authority. He would further submit that directing the petitioner to produce documentary evidence indicating mode of attempted service of Whip to the present respondents would amount to by Page 5 of 9 C/SCA/673/2019 JUDGMENT passing Rule 10 of the Defection Rules. He would submit that as per Rule 10 of the Defection Rules, a member who attends the meeting of Panchayat, is bound to ensure whether or not any mandate is issued by the political party from which he has been elected. He is bound to obtain such mandate from the Presiding Officer of such meeting. It was the duty of the private respondents to ask for such mandate on 27.07.2018 and particularly when the same was read over by the Presiding Officer. In support of his submission, he has relied upon the decision of the Division Bench of this Court rendered in the case of Rajashreeben Vinayakbhai Dave & Ors. vs. Designated Officer & Ors. reported in 2016(1) GLR 451 as well as in the case of P.C. Sharma vs. State of Gujarat reported in 1995 (1) GLH 599 and would submit that the order impugned be quashed and set aside.
[5.0] On the other hand, Mr. Siraj Gori, learned advocate appearing for the private respondents has vehemently opposed the present petition and would submit that this Court may not exercise its discretion under Articles 226 and 227 of the Constitution of India with regard to interlocutory order passed by the Designated Authority. It is the case of the private respondents that the socalled mandate was never served upon the respondents and the private respondents were not aware about the names decided by the President of the political party for constitution of various committees of District Panchayat. He would submit that unless and until the documents which are ordered to be produced on record are placed in the proceedings, it would be difficult for the respondents to defend their case. He would submit that the so called Whip dated 27.07.2018 does not disclose the names of the members of various committees which were decided at the instance of Officer of State Level party. The respondents were not aware Page 6 of 9 C/SCA/673/2019 JUDGMENT about the details of Whip and therefore, respondent No.10 proposed various names for different committees, to whom, in all 18 persons from his own party supported the case whereas 2 members from another political party also voted as per the proposal made by the respondent No.10. He would submit that the allegations against the respondents that they have not followed or obeyed the Whip issued at the instance of the party are baseless since there is no documentary evidence produced by the petitioner before the Designated Authority. He would submit that if the documents as ordered by the Authority are not produced on record, the respondents shall have to face serious consequences of defection though they have not committed any fault and have voted in favour of their own party members. He, therefore, would submit that the petition be dismissed.
[6.0] I have heard learned advocates appearing for respective parties and considered the impugned order and gone through the documentary evidence produced on record. Since the petition is arising out of an interlocutory order, the observations made hereinafter are of tentative and of prima facie nature.
[6.1] If the Whip dated 27.07.2018 issued by the President of District Congress committee is perused, it appears that all the members were asked to vote in favour of those members who have been decided to be members of various committees. It is an undisputed fact that the respondents and other members have not put their signature acknowledging the receipt of the said Whip. However, if the minutes of meeting of the said meeting recorded is perused, the Presiding Officer has categorically stated that the Whip dated 27.07.2018 was read over to all the members of Indian National Congress party and a copy of Whip was also given to the District Development Officer / Presiding Officer who had also read Page 7 of 9 C/SCA/673/2019 JUDGMENT the said Whip. The President as well as the Vice President of the District Panchayat had also disclosed about Rule 10 of the Defection Rules and all the members were asked to collect copy of the Whip / mandate and the same is recorded in the minutes. It is the case of the petitioner that out of 34 members of Indian National Congress, only 13 members followed the Whip whereas 20 members supported the respondent No.10.
[6.2] In view of the above background, when it is the case of the petitioner - original applicant that the mandate / Whip as directed by the party President is not followed, he is bound to establish his case. The Designated Authority before whom the defection petition is pending, has to decide the case put forward by the original applicant about the alleged breach of Defection Act as well as Defection Rules. If the original applicant who has filed the defection petition before the Designated Authority, does not produce necessary documents to establish his case, then the Designated Authority is going to take decision accordingly. The original opponents cannot ask / compel the original applicant to produce such documents relying upon which he wants to defend his case. It is needless to say that the original applicant needs to prove his case about serving of mandate issued by the party, whether or not the opponents have refused to accept the Whip issued by the party etc. and therefore, if the original applicant fails to establish the same, he would face the consequences. It is the basic principle of law that a person putting a claim has to establish the same. The Designated Authority has to decide the case on the basis of the material which is available for his consideration.
[6.3] At this stage, for this Court, it is difficult to arrive at a conclusion with regard to the fact whether petitioner has tried to serve the Whip dated 27.07.2018, whether or not the said Whip Page 8 of 9 C/SCA/673/2019 JUDGMENT was served upon the private respondents, whether or not the private respondents had refused to accept the Whip, whether or not the entire Whip was read over by the District Development Officer, is also yet to be examined by the competent authority. Therefore, I find that the Designated Authority has committed error in directing the petitioner to produce the documents referred to in paragraphs 10A and 10B. Hence, the present petition requires consideration.
[7.0] Hence, the petition is allowed. Impugned order dated 07.01.2019 passed by the respondent No.2 - Designated Authority in Defection Application No.63/2018 is hereby quashed and set aside. The Designated Authority shall proceed with the Defection Application No.63/2018 as per the directions issued by this Court in its order dated 05.12.2018 passed in Special Civil Application No.18759/2018. Rule is made absolute accordingly.
[8.0] At this stage, Mr. Siraj Gori, learned advocate appearing for the private respondents has requested to stay the execution, implementation and operation of the present judgment and order for a period of two weeks.
The request made by Mr. Gori, learned advocate for the private respondents is refused in view of the mandatory provisions of the Defection Act.
Direct service is permitted.
Sd/ (A.J. DESAI, J.) Ajay Page 9 of 9