Gujarat High Court
Shardaben vs Settlement on 10 May, 2011
Author: S.J. Mukhopadhaya
Bench: S.J. Mukhopadhaya
Gujarat High Court Case Information System
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LPA/506/2011 10/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 506 of 2011
In
SPECIAL
CIVIL APPLICATION No. 2534 of 2011
With
LETTERS
PATENT APPEAL No. 507 of 2011
In
SPECIAL CIVIL APPLICATION No. 2533 of 2011
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ? -
YES
2
To
be referred to the Reporter or not ? - YES
3
Whether
their Lordships wish to see the fair copy of the judgment ? - NO
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 ? - NO
5
Whether
it is to be circulated to the civil judge ? - NO
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SHARDABEN
PREMJIBHAI MAKWANA
Versus
SETTLEMENT
COMMISSIONER & DIRECTOR OF LAND RECORDS & ORS
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Appearance :
Mr
N.D.Nanavaty, Sr Advocate for M/s NANAVATY
ADVOCATES for the Appellant
Mr P.K. Jani, Government Pleader for
Respondent(s) : 1,
MR PV HATHI for Respondent(s) : 2,
HL PATEL
ADVOCATES for Respondent(s) :
3,
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CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 10/05/2011
COMMON
CAV JUDGMENT
(Per : HONOURABLE MR. JUSTICE J.B.PARDIWALA) As common questions of facts and law arise in both these appeals, they are disposed of by this common judgment and order.
1. The appellants - original writ petitioners seek to challenge common judgment and order passed by the learned Single Judge dated 3rd March 2011 in Special Civil Application No.2533 of 2011 and Special Civil Application No.2534 of 2011 whereby the learned Single Judge dismissed both the writ petitions.
2. Brief facts relevant for the purpose of deciding this appeal can be summarised as under:-
3. Letters Patent Appeal No.506 of 2011 is preferred by writ petitioner of Special Civil Application No.2534 of 2011. Appellant of Letters Patent Appeal No.506 of 2011 is the ex Vice President of Bhesan Taluka Panchayat. Her challenge before the learned Single Judge was to the order passed by the Designated Officer and Settlement Commissioner and Director of Land Records, State of Gujarat, passed in Application No.53 of 2010, by which the appellant was ordered to be disqualified as member of Bhesan Taluka Panchayat under Section 3(1)(b) of the Gujarat Provisions for Disqualification of Members of Local Authorities for Defection Act, 1986 (hereinafter referred to as 'the Act of 1986') read with Rule 6 of the Gujarat Provisions for Disqualification of Members of Local Authorities for Defection Rules, 1987 (hereinafter referred to as 'the Rules of 1987').
4. In the same manner, the appellant of Letters Patent Appeal No.507 of 2011 is the original writ petitioner of Special Civil Application No.2533 of 2011. He is the ex President of Bhesan Taluka Panchayat. He also challenged the same order as referred to above in paragraph 3 whereby the appellant has been disqualified as the Member of Bhesan Taluka Panchayat under Section 3(1)(b) of the Act of 1986 read with Rule 6 of the Rules of 1987.
5. As neat questions of law have been raised in both the appeals, we are not referring to the facts in detail as the same can be gathered from the common judgment and order passed by the learned Single Judge.
6. The principal contentions raised on behalf of the appellants are as under:-
6.1 It is submitted that if any question arises as to whether a Councilor of a Municipal Corporation, a member of the Panchayat or a Councilor of Municipality has become subject to disqualification under the Act of 1986, then, the question has to be referred to the Chief Secretary of the State Government or to such Officer not below the rank of a Secretary of any Department of the State Government, as may be designated by the State Government in this behalf, and his decision shall be final. It is submitted that in the present case the order of disqualification was passed by the first respondent, who is a Settlement Commissioner and Director of Land Records, State of Gujarat and he is not an officer of the rank of the Secretary. It is submitted that there is nothing to suggest that the Officer, who passed the order, was empowered under Section 6 of the Act of 1986.
It appears that this contention was raised before the learned Single Judge and the learned Single Judge answered the same by observing that the contention/objection was never raised by the appellant before the Designated Officer i.e. respondent No.1, otherwise, the same would have been dealt with by the respondent No.1. Learned Single Judge further observed that this contention was taken up only by way of amendment and the point was not elaborately taken up in the main petition.
6.2 Since the issue relates to power and jurisdiction of the authority to pass the order under Section 6 of the Act of 1986, we thought fit to look into the issue little closely more particularly when a quasi judicial power vested in an authority by the Statute must be exercised by the person holding the office and no other. This is expressed by saying that 'judicial duties' cannot be abnegated. We, therefore, passed an order directing the respondents to state as to whether the first respondent i.e. Settlement Commissioner and Director of Land Records, State of Gujarat is an Officer of the rank of the Secretary of the State of Gujarat and whether he has been delegated with the power under Section 6 of the 1986 Act. We also directed the respondents to adduce evidence in support of such statement to show that the first respondent is an officer of the rank of the Secretary. In this regard, respondent No.1 has filed an affidavit stating as under:-
"I say and submit that the impugned order dated 07.02.2011 passed by respondent No.1 is passed by an officer of the rank of a Secretary. The State Government vide Notification dated 13.09.2010 in exercise of powers conferred under the Gujarat Provisions for Disqualification of Members of Local Authorities for Defection Act, 1986 appointed Shri M.V. Joshi, IAS, Settlement Commissioner and Director of Land Records, Gujarat State, Gandhinagar as a Designated Officer for the cases of Panchayats, Rural Housing and Rural Development for the purpose of Section 6 of the said Act. Annexed hereto and marked as ANNEXURE-R-1 is a copy of the Notification dated 13.09.2010. Annexed hereto and marked as Annexure-R-II is a copy of the Notification No.AIS/35.2010/17/G whereunder respondent No.1 as Ex Officio Additional Secretary to Government, Tribal Development Department, Sachivalaya, Gandhinagar is promoted to Supertime Scale of IAS (Rs.37,400-67,000 Pay Band-4, Grade Pay Rs.10,000/-) and appointed as Settlement Commissioner & Director of Land Records, Gandhinagar relieving Shri A.Bhattacharya, IAS of the additional charge of that post. The said office order reflects designation of respondent No.1 as Additional Secretary to the Government. I thus say and submit that respondent No.1 is of the rank of a Secretary and thus the impugned order dated 07.02.2011 passed by respondent No.1 is an order passed within his jurisdiction."
Along with the affidavit, the notification has also been produced which reads as under:
"Gujarat Provisions for Disqualification of Members of Local Authorities for Defection Act, 1986.
No.KP/18 of 2010/ELC/1097/808(Part-FIle)/G: In exercise of the powers conferred by Section 6 of the Gujarat Provisions for Disqualification of Members of Local Authorities for Defection Act, 1986 (Guj.23 of 198), the Government of Gujarat hereby appoints Shri M.V. Joshi, IAS, Settlement Commissioner and Director of Land Records, Gujarat State, Gandhinagar as "Designated Officer" for the cases of the Panchayats, Rural Housing and Rural Development Department for the purpose of Section 6 of the said Act.
By order and in the name of the Governor of Gujarat."
6.3 Respondent No.1 has made the position very clear and therefore there is no difficulty in deciding this issue by holding that respondent NO.1 was empowered to pass the order of disqualification against the appellants under Act of 1986.
The second contention which has been raised by the learned counsel is with regard to non-compliance of Section 3(1)(b) of the Act of 1986. Section 3(1)(b) of the said Act reads as under:
"3. Disqualification on ground of defection:- (1) Subject to the provisions of sections 4 and 5, a councillor or a member belonging to any political party shall be disqualified for being a councillor or a member,-
(a) xxxx (b) if he votes or abstains
from voting in any meeting of a municipal corporation, panchayat or as the case may be, municipality contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf without obtaining in either case the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention.
Explanation.-
(1) For the purposes of this section.-
(a) a person elected as a councillor or, as the case may be, a member shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such councillor or member,
(b) an appointed councillor or member shall,-
where he is a member of any political party on the date of his appointment as such councillor, or as the case may be, member be deemed to belong to such political party;
in any other case, be deemed to belong to the political party of which he becomes, or, as the case may be, first becomes a member of such party before the expiry of six months from the date on which he is appointed as such councillor, or as the case may be, a member."
It is submitted that as per Section 3(1)(b) of the Act of 1986 direction/whip/mandate issued by the political party to which a member belongs to or by any person or authority authorised in this behalf is actually required to be served upon the concerned member and unless and until any direction/whip/mandate is served upon the concerned member, no proceedings can be initiated against such a member in case if he or she acted contrary to such mandate/whip under the provisions of Act of 1986. In this regard, the record reveals that the President, District Bharatiya Janata Party, Junagadh issued a whip dated 10th November 2010, which is at page 23 (Annexure-D) to the main petition. The language of the whip is also plain, clear and unambiguous and there is a reference of the names of the appellants also beneath the whip to whom the whip has been served. The appellants have been shown at serial No.1 and 7 respectively. Further, the record reveals that the whip issued by the party was in fact read over at the commencement of the meeting dated 10th November 2010 in which the respective appellants were also present. Record further reveals that before the concerned members submitted their forms, the whip was read over and the same is also reflected in the minutes of the meeting. Most importantly, this fact is not denied by the appellants. The contention before the learned Single Judge was to the effect that the whip was not earlier served upon the respective appellants and therefore there is no sufficient compliance of Section 3(1)(b) of the Act of 1986. Learned Single Judge considered this contention and rejected the same, very rightly to our mind, by observing as under:-
"On fair reading of Section 3(1)(b) as such it does not provide that how and in what manner the direction issued by the political party to which he belongs or by any person or authority authorized in this behalf is to be served upon the concerned member. Section 3(1)(b) of the Act, 1986 provides that if a member votes or abstains from voting in any meeting of the Corporation, Panchayat or as the case may be, contrary to the direction issued, such a member incurs disqualification. Therefore, what is required to be proved by the aggrieved party is that such member had a knowledge of the direction/whip/mandate and that still he has voted and/or abstained from voting contrary to such a direction/whip/mandate. Therefore, what is required is the knowledge of the concerned member with respect to whip/mandate issued by the political party to which he belongs or by any person or authority authorized by it in that behalf. The moment it is proved that prior to the meeting it was brought to the notice of the concerned member and/or it was within the knowledge of the concerned member with respect to the whip/mandate issued by the political party to which he belongs or by any person or authority authorized by it and thereafter he has acted contrary to such a whip/mandate in that case, he incurs disqualification under section 3(1)(b) of the Act, 1986."
We are in complete agreement with the reasoning assigned by the learned Single Judge in this regard.
6.4 The third contention, which has been raised is with regard to breach of sub-rule (6) of Rule 3 of the Rules of 1987. Sub-rule (6) of Rule 3 of Rules of 1987 reads as under:-
"3. Information to be furnished by leader of municipal party or panchayat party :-
(6) Where a member belonging to any political party votes or abstains from voting in any meeting of a municipal corporation pancha- yat or municipality contrary to any direction issued by such political party or by any person or authority authorised by it in this behalf, without obtaining in either case, the prior permission of such political party, person or authority, the leader of the municipal party or panchayat party concerned or where such member is the leader, or as the case may be, the sole member of such municipal party, or panchayat party, such member, shall as soon as may be after the expiry of fifteen days from the date of such voting or abstention, and in any case within thirty days from the date of such voting or abstention inform the designated officer in Form 1 whether such voting or abstention has or has not been condoned by such political party, person or authority.
Explanation.-A member may be regarded as having abstained from voting only when he, being entitled to vote, refrains from voting."
The contention is to the effect that the concerned person/authority who issued the whip did not inform the Designated Officer in form-II after the expiry of 15 days from the date of such voting or abstention and in any case within 30 days from the date such or abstention inform the Designated Officer where such voting or abstention has not been condoned by the political party, person or authority. There is no substance in the interpretation, which is sought to be put before us in this regard. On plain reading of sub-rule of Rule 3 of the Rules of 1987 it is evident that the duty is cast upon 'such a member', who is alleged to have acted contrary to the whip/mandate issued by the political party he belongs to or by such person or authority authorised by it to inform the Designated Officer in form-II within stipulated time saying whether his act is condoned or not. It is for the concerned member who is alleged to have acted contrary to the whip to inform the Designated Officer in form-II and not the person/authority who has issued the whip, as contended, as it is that member who will be submitting before the Designated Officer that he has not rendered any disqualification as his act has been condoned. On this aspect also we are in complete agreement with the view taken by the learned Single Judge holding that there is no breach of sub-rule (6) of Rule 3 of the Rules of 1987.
7 In light of what has been discussed in the judgment, we summarise our findings as under:-
(a) Respondent No.1 - Settlement Commissioner and Director of Land Records, State of Gujarat is an Officer of the rank of Secretary of the State of Gujarat and has been delegated with the power under Section 6 of the Gujarat Provisions for Disqualification of Members of Local Authorities for Defection Act, 1986,
(b) There is complete compliance of Section 3(1)(b) of the Act of 1986 and we are convinced that the whip was served upon the respective appellants and they had knowledge about the same much before the election took place.
(c) The interpretation put forward by the appellants as regards non-compliance of sub-rule (6) of Rule 3 of the Rules of 1987 is not true and correct. As per sub-rule (6) of Rule 3 duty is cast upon such a member (in the present case the appellants) who is alleged to have acted contrary to the whip/mandate issued by the political party he or she belongs to or by such person or authority authorised by it to inform the Designated Officer in form-II within the stipulated time therein whether his act is condoned or not. It is for the concerned member who is alleged to have acted contrary to the whip to inform the Designated Officer in form-II and not the person/authority who has issued the whip.
8. In this view of the matter, we find no merit in these appeals. Both the appeals fail and are ordered to be dismissed with no order as to costs.
(S.J. Mukhopadhaya, CJ.) (J.B.Pardiwala, J.) *mohd Top