Gujarat High Court
Thakrshibhai Shavshibhai Rathod vs A J Shah Designated Officer on 3 August, 2018
Author: M.R. Shah
Bench: M.R. Shah, A.Y. Kogje
C/SCA/16135/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16135 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
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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 or any order made
thereunder ?
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THAKRSHIBHAI SHAVSHIBHAI RATHOD
Versus
A J SHAH DESIGNATED OFFICER
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Appearance:
MR ANSHIN H DESAI, SENIOR ADVOCATE with MR VENU H
NANAVATY(7458) for the PETITIONER(s) No. 1,2
MR KAMAL TRIVEDI, ADVOCATE GENERAL with MR PRANAV
TRIVEDI, ASSISTANT GOVERNMENT PLEADER(1) for the
RESPONDENT(s) No. 1
MR MIHIR JOSHI, SENIOR ADVOCATE with MR DHAVAL D
VYAS(3225) for the RESPONDENT(s) No. 4,5
MR KP CHAMPANERI(5643) for the RESPONDENT(s) No. 2
MR VANDAN K BAXI(5863) for the RESPONDENT(s) No. 3
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Page 1 of 15
C/SCA/16135/2016 CAV JUDGMENT
CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 03/08/2018
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for an appropriate writ, order or direction to quash and set aside the impugned order dated 20/08/2016 passed by the designated Officer, State of Gujarat below application, being Dispute Application No.17/2016, disqualifying the petitioners as Members of the District Panchayat, Ahmedabad in exercise of the powers conferred under the provisions of the Gujarat Provision for Disqualification of Members of Local Authorities for Defection Act, 1986 and Rules, 1987 (hereinafter referred to as "the Act, 1986" and "the Rules, 1987").
[2.0] The facts leading to the present petition in nutshell are as under;
[2.1] Both the petitioners are the elected Members of the Ahmedabad District Panchayat as local authority. Both of them were elected under the symbol of Indian National Congress. An Extraordinary General Meeting of the District Panchayat was convened on 21/03/2016 for which the agenda was issued on 14/03/2016 wherein the agenda items inter alia included the passing of the amended budget for the year 2015- 16 and the budget for the year 2016-17. A whip was issued by one Shri Balubhai, Chairman, Election Coordination Committee Page 2 of 15 C/SCA/16135/2016 CAV JUDGMENT of the Gujarat Pradesh Congress Committee i.e. for and on behalf of the party - Indian National Congress, under whose symbol respective petitioners were elected. Under the whip, all the Members, who were elected on the symbol of the Congress party, were informed to vote in favour of passing of the budget. The meeting was in fact convened on 21/03/2015, as scheduled. However, after discussion on some of the items of the agenda, meeting came to be adjourned to 23/03/2016. On 23/03/2016, when the agenda item of passing of the budget was discussed and put to vote, both the petitioners voted against the whip and against passing of the budget. Thereafter, respondent no.2 herein approached the designated Officer under the provisions of the Act, 1986 and requested to disqualify both of them as Members of the Panchayat. After giving fullest opportunity and thereafter having found that both the petitioners committed the breach of the whip issued and voted against the whip, and therefore, they have rendered themselves liable for disqualification as Members under the provisions of the Act, 1986, thereby by the impugned order dated 20/08/2016 the designated Officer has declared both the petitioners as disqualified as Members of the District Panchayat, Ahmedabad in exercise of powers under Section (3) read with Rule 6 of Rules, 1987.
Feeling aggrieved and dissatisfied with the impugned order passed by the designated Officer under the provisions of the Act, 1986, petitioners have preferred the present Special Civil Application under Article 226 of the Constitution of India.
[3.0] The petitioners being declared disqualified as Members of the District Panchayat, Ahmedabad and the seats Page 3 of 15 C/SCA/16135/2016 CAV JUDGMENT having fallen vacant, the Election Commission issued notification dated 07/11/2016 declaring the programme of by- election in respect of the constituency from where the petitioners were elected, and therefore, by way of amendment, the petitioners have prayed by way of interim relief to stay the notification dated 07/11/2015, during pendency and final disposal of the present petition.
[4.0] Shri Anshin Desai, learned Senior Advocate has appeared on behalf of the petitioners, Shri Kamal Trivedi, learned Advocate General has appeared on behalf of respondent no.1, designated Officer, State of Gujarat, Shri K.P. Champaneri, learned Advocate has appeared on behalf of respondent no.2 and Shri Mihir Joshi, learned Senior Advocate has appeared on behalf of respondents nos.4 and 5, who are supporting the impugned order passed by the designated Officer disqualifying the petitioners as Members of the District Panchayat, Ahmedabad.
[4.1] Shri Anshin Desai, learned Senior Advocate appearing on behalf of the petitioners has assailed the impugned order passed by the designated Officer inter alia on the following grounds;
(i) that the mandate /whip was issued for the meeting dated 21/03/2016, and therefore, the same shall not be applicable with respect to the meeting convened /held on 23/03/2016;
(ii) that the whip dated 19/03/2016, which, as such, was for the meeting dated 21/03/2016 was not individually served upon the petitioners;
Page 4 of 15 C/SCA/16135/2016 CAV JUDGMENT(iii) that the whip was not issued by the competent /authorized person of the party (Congress party);
(iv) that now respondent no.2 herein has filed an affidavit and has stated on oath that he wants to withdraw the main complaint / original application, which was submitted by him before the designated Officer, which was submitted to disqualify the petitioners.
[4.2] Shri Anshin Desai, learned Senior Advocate appearing on behalf of the petitioners has vehemently submitted that even in the impugned order itself the designated Officer has specifically given the finding that no individual mandate was served upon the petitioners. It is submitted that therefore when no individual mandate was served upon the petitioners, the petitioners cannot be declared disqualified for having committed the breach of such mandate /whip. In support of his above submission, Shri Anshin Desai, learned Senior Advocate appearing on behalf of the petitioners has heavily relied upon the decisions of the learned Single Judge of this Court in the case of Sunil Narsinh Hathila Vs. Designated Authority under the Gujarat Provision for Disqualification for Members reported in 2011 (2) GCD 1414 and in the case of Shobhaben Shantilal Kalal Vs. M.V. Joshi reported in 2011 JX (GuJ.) 1586. Relying upon the decision of the Division Bench of this Court in the case of Katara Bhaveshbhai Babubhai Vs. Designated Authority under the Gujarat Provision for Disqualification of Members and Ors. reported in 2012 GLR 4503, it is vehemently submitted by Shri Anshin Desai, Page 5 of 15 C/SCA/16135/2016 CAV JUDGMENT learned Advocate appearing on behalf of the petitioners that the provisions of the Act, 1986 are required to be considered, construed and strict compliance is required to be taken before declaring the Members disqualifying under the Act, 1986.
Making the above submissions and relying upon the above decisions, it is requested to allow the present petitions and quash and set aside the impugned order passed by the designated Officer.
[5.0] Present petition is vehemently opposed by Shri Kamal Trivedi, learned Advocate General appearing on behalf of the respondent no.1. It is vehemently submitted by Shri Kamal Trivedi, learned Advocate General appearing on behalf of respondent no.1 that in fact the meeting dated 21/03/2016 was adjourned to 23/03/2016 with the same agenda, and therefore, as rightly observed by the designated Officer, the whip dated 19/03/2016 shall be applicable. It is submitted that even the whip /mandate dated 19/03/2016 was with respect to a particular agenda, namely, passing of the budget and not with respect to any particular meeting only. It is submitted that therefore the whip dated 19/03/2016 shall be applicable, and therefore, having committed the breach of the whip /mandate dated 19/03/2016, the petitioners are rightly declared disqualified under the provisions of the Act, 1986.
[5.1] Now so far as the submission on behalf of the petitioners that no individual mandate was served upon the petitioners is concerned, it is submitted that, as such, considering Rule 10A of the Rules, 1987, duty is cast upon the Members to get the copy of the mandate. It is further submitted that even otherwise the whip /mandate dated Page 6 of 15 C/SCA/16135/2016 CAV JUDGMENT 19/03/2016 was read over by the District Development Officer, Ahmedabad as the Presiding Officer in the meeting held on 21/03/2016 as well as 23/03/2016, and therefore, all the Members, including the petitioners, were made known the whip /mandate dated 19/03/2016.
[5.2] Now so far as the submission on behalf of the petitioners that the mandate /whip dated 19/03/2016 was not issued by the competent /authorized person who issued the whip on behalf of the party is concerned, it is submitted that in the meeting at no point of time the petitioners raised such an objection, and therefore, it is requested to dismiss the present petition.
[6.0] Shri K.P. Champaneri, learned Advocate appearing on behalf of respondent no.2 - original applicant - original complainant has submitted that now respondent no.2 has filed an affidavit and has stated on oath that he proposes and /or he withdraws the original application, which was submitted by him to declare the petitioners disqualified. It is submitted that therefore he has requested to remand the matter to the designated Officer /authority so as to enable respondent no.2 to withdraw the original application. Shri K.P. Champaneri, learned Advocate appearing on behalf of respondent no.2 has further submitted that even otherwise the impugned order can be said to be in breach of Rule 7 of Rules, 1987 inasmuch as the copy of the petition was not served upon the leader of the party, who issued the whip /mandate, and therefore, there was a procedural lapse, and therefore also, the impugned order deserves to be quashed and set aside. No other submissions have been made.
Page 7 of 15 C/SCA/16135/2016 CAV JUDGMENT[7.0] Shri Mihir Joshi, learned Senior Advocate appearing on behalf of the newly added respondents nos.4 and 5 has in fact reiterated what is submitted by Shri Kamal Trivedi, learned Advocate General appearing on behalf of respondent no.1 - State. On the submission made by Shri Anshin Desai, learned Senior Advocate appearing on behalf of the petitioners and Shri K.P. Champaneri, learned Advocate appearing on behalf of respondent no. 2 - original applicant that now when respondent no.2 withdraws /proposes to withdraw the original application, and therefore, the impugned order be quashed and set aside, it is vehemently submitted by Shri Mihir Joshi, learned Senior Advocate appearing on behalf of respondents nos.4 and 5 that once the order is passed disqualifying the petitioners, on the application submitted by respondent no.2, thereafter respondent no. 2 cannot withdraw his original application. It is submitted that the designated Officer has acted on the application submitted by respondent no.2 and thereafter after holding necessary inquiry, the designated Officer has allowed the said original application preferred by respondent no.2 and has disqualified the petitioners as Members of the District Panchayat, Ahmedabad. It is submitted that therefore thereafter respondent no.2 cannot withdraw the original application. Relying upon the decision of the Hon'ble Supreme Court in the case of Dr. Mahachandra Prasad Singh Vs. Chairman, Bihar Legislative Council and Others reported in (2004) 8 SCC 747, it is submitted that as observed and held by the Hon'ble Supreme Court, in the proceedings of disqualification under the Anti Defection Act , there is no lis between the person moving the petition and the Member of the House who is alleged to have incurred a Page 8 of 15 C/SCA/16135/2016 CAV JUDGMENT disqualification. It is submitted that it is observed and held by the Hon'ble Supreme Court that even if he withdraws the petition it will make no difference as the duty is cast upon the designated Officer to carryout the mandate of the constitutional provision. It is submitted that therefore the subsequent withdrawal of the original application by respondent no.2 shall not make the impugned order bad in law and /or nugatory.
Making the above submissions, it is requested to dismiss the present petition.
[8.0] Shri Anshin Desai, learned Senior Advocate appearing on behalf of the petitioners has submitted that as the newly added respondents have no locus, as they were not the original applicants, this Court may not consider the submission made on their behalf.
[9.0] Heard the learned Advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that both the petitioners contested the election and were elected. They were elected on the symbol of the Indian National Congress. Both of them have been declared disqualified as Members of the District Panchayat, Ahmedabad in exercise of powers under Section 6 of the Act, 1986 having committed the breach of and /or having acted contrary to the whip /mandate issued by the party on whose symbol they fought the election and were elected. The grounds on which the impugned order is assailed are stated hereinabove.
[9.1] The first ground on which the impugned order is assailed is that the whip /mandate dated 19/03/2016 was not Page 9 of 15 C/SCA/16135/2016 CAV JUDGMENT served upon the petitioners individually, and therefore, relying upon the two decisions of this Court in the case of Sunil Narsinh Hathila (Supra) and in the case of Shobhaben Shantilal Kalal (Supra) , it is submitted that the impugned order disqualifying the petitioners deserves to be quashed and set aside. However, it is required to be noted that Rule 10A of Rules, 1987 cast the duty upon the Member of the Panchayat, who is elected on the symbol of a political party, while attending any meeting of the Panchayat should ensure whether any mandate is issued by such political party, he shall obtain such mandate from such political party, or by any person or authority by it. Even similar duty is cast upon Chairperson of the meeting to verify that such a mandate has been issued by the political party, and circulated to the Councilor or Member of the Panchayat, and therefore, as such, it was for the petitioners to inquire and obtain the mandate /whip, if any, issued by the political party on whose symbol he has been elected. At this stage, the decision of the Division Bench of this Court in the case of Naileshbhai Jivlabhai Ahir Vs. State of Gujarat and Ors rendered in Letters Patent Appeal No.733/2011 is required to be referred to. In the aforesaid decision in paragraph 17, the Division Bench after considering Rule 10A of the Rules, 1987 has observed and held as under;
"17. From Rule 10, it will be evident that it will be the duty of the member of the Panchayat who is elected on the symbol of a political party to ensure whether any mandate is issued by such political party. In case any mandate is issued by such political party, it is the duty of the member of the Page 10 of 15 C/SCA/16135/2016 CAV JUDGMENT Panchayat to obtain such mandate from such political party or by any person or authority authorized by such political party. The Chairperson of the Panchayat is only to verify that such mandate has been issued by political party or not. Thus, it will be evident that there was no question of service of any mandate on the appellants but they were to ensure whether the political party to which they belong had issued any mandate/whip and if so, the appellants were required to obtain such mandate from their political party. The question of service of such mandate/whip on them does not arise."
Therefore, merely because the whip /mandate was not served upon the petitioners individually cannot be a ground to set aside the impugned order. At this stage, it is required to be noted that even otherwise the mandate /whip dated 19/03/2016 was read over by the Chairperson of the meeting on 21/03/2016 as well as 23/03/2016, and therefore, as such, the petitioners had knowledge of the whip /mandate issued by their party dated 19/03/2018. There is a specific finding given by the designated Officer to the aforesaid effect and the same is not disputed by the petitioners. Under the circumstances, the decisions relied upon by Shri Anshin Desai, learned Senior Advocate appearing on behalf of the petitioners in the case of Sunil Narsinh Hathila (Supra) and in the case of Shobhaben Shantilal Kalal (Supra) shall not be applicable to the facts of the case on hand. In the case before the learned Single Judge in the case of Shobhnaben Shantilal Kalal (Supra) it has been specifically observed that Page 11 of 15 C/SCA/16135/2016 CAV JUDGMENT nothing is on record that it was brought to the notice of the respective petitioners with respect to any whip/mandate. Even in the case of Sunil Narsinh Hathila (Supra) there was nothing on record to show that the whip issued by the party was read over at the time of election in the meeting. Under the circumstances, on facts, the said decisions shall not be applicable to the facts of the case on hand.
[9.2] Now so far as the submission on behalf of the petitioners that the whip /mandate was issued on 21/03/2016 and not for the meeting on 23/03/2016, and therefore, the mandate /whip cannot be made applicable for the meeting held on 23/03/2016 is concerned, the aforesaid has no substance and is required to be rejected outright. It is required to be noted that as such the whip was issued for a particular agenda item, namely, passing of the budget. The meeting, which was convened on 21/03/2016, was continued /adjourned to 23/03/2016 as all the agenda items could not be taken up for consideration in the meeting held on 21/03/2016. No fresh agenda was issued, and therefore, as rightly observed by the designated Officer, the whip /mandate was required to be implemented with respect to the agenda item of passing of the budget in both the meetings i.e. 21/03/2016 as well as 23/03/2016.
[9.3] Now so far as the submission on behalf of the petitioners that the whip was not issued by the authorized person of the party, and therefore, the same was not binding is concerned, at the outset, it is required to be noted that when the whip /mandate was read over in the meeting, no such objection was raised by the petitioners.
Page 12 of 15 C/SCA/16135/2016 CAV JUDGMENT[9.4] Now so far as the submission on behalf of the petitioners and on behalf of respondent no. 2 - original applicant that as now respondent no.2 - original applicant - complainant proposes to withdraw and /or withdraws his complaint / original application the impugned order be quashed and set aside and /or the matter may be remanded to the designated Officer as requested by the learned Advocate appearing on behalf of respondent no.2 is concerned, at the outset, it is required to be noted that after the impugned order is passed on the original application /complaint made by respondent no.2 and the petitioners are declared disqualified, thereafter it will not be open for respondent no.2 to withdraw the complaint /original application, and therefore, on the ground that now subsequently and after the impugned is order passed by the designated Officer disqualifying the petitioner under Section 6 of the Act, 1986, the impugned order is not required to be set aside on the ground that now respondent no.2 - original complainant /applicant proposes and /or withdraws the original application. At this stage, the decision of the Hon'ble Supreme Court in the case of Dr. Mahachandra Prasad Singh (Supra) is required to be referred to. In the said decision, Hon'ble Supreme Court has specifically observed and held that in a proceeding of disqualification on the ground of defection, there is no lis between the person moving the petition and the member of the House, who is alleged to have incurred a disqualification. It is submitted that it is no adversarial kind of litigation where he may be required to lead evidence. It is further observed that even if he withdraws the petition it will make no difference as a duty is cast upon the Chairman or the Speaker to carryout the Page 13 of 15 C/SCA/16135/2016 CAV JUDGMENT mandate of the constitutional provision viz the Tenth Schedule. Under the circumstances on the ground that now respondent no.2 - original complainant - original applicant proposes to withdraw and /or withdraws the original application /complaint, the impugned order passed by the designated Officer disqualifying the petitioners, Members of the Panchayat, under Section 6 of he Act, 1986 is not required to be set aside.
[9.5] Now so far as the submission made by Shri Champaneri, learned advocate appearing on behalf of respondent no. 2- original complainant that there is procedural lapse on the part of the designated Officer inasmuch as the procedure required under Rule 7 of the Rules, 1987 to serve a copy of the petition upon the political party, who has issued the whip has not been served, and therefore, the impugned order be quashed and set aside is concerned, at the outset, it is required to be noted that how the respondent no. 2 - original complainant whose application is allowed can make such a grievance. The affected party, if any, namely the concerned party has not made any grievance. The person in whose favour an order is passed on the original application submitted by him cannot submit that though he has succeeded, the order in his favour be quashed and set aside on the ground of procedural lapse, if any. It is required to be noted that so far as the petitioners are concerned, they have never raised such a contention.
[10.0] In view of the above and for the reasons stated hereinabove, the impugned order passed by the designated Officer disqualifying the petitioners as Member of the District Panchayat, Ahmedabad cannot be said to be illegal Page 14 of 15 C/SCA/16135/2016 CAV JUDGMENT and /or de hors the provisions of the Act, 1986. Under the circumstances, present petition deserves to be dismissed and is accordingly dismissed. Rule is discharged. Ad-interim relief granted earlier stands vacated forthwith. No order as to costs.
(M.R. SHAH, J.) (A.Y. KOGJE, J.) At this stage and after the order was pronounced, Ms. Nanavaty, learned advocate appearing on behalf of the petitioners has requested to continue the ad-interim relief granted earlier. Shri Champaneri, learned advocate appearing on behalf of respondent no. 2- original applicant has also requested to continue the ad- interim relief granted earlier. We fail to appreciate how respondent no. 2 - original applicant has succeeded before the authority and that too in a petition not filed by him and pray to continue the ad- interim relief granted earlier. Considering the fact that now for the reasons stated hereinabove, we have confirmed the order passed by the designated authority declaring the petitioners as disqualified as Members of the District Panchayat, Ahmedabad under the provisions of the Gujarat Provision for Disqualification of Members of Local Authorities for Defection Act, 1986, necessary consequences shall follow and they cannot be continued as Members of the Panchayat and they have to vacate the seats occupied by them. Hence, the request made by Ms. Nanavaty, learned advocate appearing on behalf of the petitioners to continue the ad-interim relief granted earlier is hereby rejected.
(M.R. SHAH, J.) (A.Y. KOGJE, J.) siji Page 15 of 15