Gujarat High Court
Shailendrasinh Bhikhusinh Bihola vs State Of Gujarat on 20 February, 2020
Equivalent citations: AIRONLINE 2020 GUJ 206
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
C/SCA/17590/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17590 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 18084 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE VIRESHKUMAR B. MAYANI
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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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SHAILENDRASINH BHIKHUSINH BIHOLA & 1 others
Versus
STATE OF GUJARAT & 2 others
================================================================
Appearance in SCA No. 17590 of 2018 :
MR Y.N.OZA, LD SR. Advocate with MR CP CHAMPANERI(5920) for the
Petitioners No. 1,2
for the Respondents No. 3
MR PK JANI, SR.ADV WITH MS JIRGA JHAVERI, AGP for the
Respondent No. 1
MR HS MUNSHAW for the Respondent No. 2
MR PERCY KAVINA, SR ADV. WITH MR C.B.UPADHYAYA, Advocate
for the Respondent No. 4 to 19
Appearance in SCA No. 18084 of 2018 :
MR Y.N.OZA, LD SR. Advocate with MR Rajesh K Savjani for the Petitioner
for the Respondents No. 3
MR PK JANI, SR. ADV WITH MS.JIRGA JHAVERI, AGP for the
Respondent No. 1
MR HS MUNSHAW for the Respondent No. 2
MR PERCY KAVINA, SR ADV. WITH MR C.B.UPADHYAYA, Advocate
for the Respondent No. 4 to 19
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Page 1 of 69
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C/SCA/17590/2018 JUDGMENT
CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE VIRESHKUMAR B. MAYANI
Date : 20/02/2020
COMMON ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT) 1 Learned counsels for the parties have jointly submitted that as the issue involved in both the matters is identical, both these Special Civil Applications be heard together and accordingly, both the Special Civil Applications were heard together and are being disposed of by this common judgment and order.
It may be noted here that the some of the councilor of the Gandhinagar Municipal Corporation had filed Civil Application No. 1 of 2019 in SCA No. 17590 of 2018 with following prayers :
"para-5:
(A) The Hon'ble Court may kindly be pleased to admit and allow the present petition;
(B) The Hon'ble Court may kindly be pleased to join the Applicants herein as party Respondents in the aforesaid Writ Petition being Special Civil Application No. 17590 of 2018 as party Respondents No. 4 to 19;
(C.) The Hon'ble Court may kindly be pleased to pass such other and further orders as the nature and circumstances of the case may require in the interest of justice."
and this Court on 24.4.2019, passed the following order.
Page 2 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020C/SCA/17590/2018 JUDGMENT "Rule. Ms.Jirga Jhaveri, learned AGP waives service of notice of rule on behalf of the respondent - State. Mr. Champaneri, learned advocate waives service of notice of rule on behalf of the respondent nos.1 and 2. By consent of the counsels, rule is fixed forthwith.
Looking to the averments made in this application, the same is allowed in terms of prayer 5(B) as not objected by the other side. The present applicants are ordered to be joined as party respondent nos.4 to 19 in the main matter i.e. Special Civil Application No.17590 of 2018.
Rule made absolute."
2 The petitioner of Special Civil Application No. 17590 of 2018 - councilor of Gandhinagar Municipal Corporation has approached this Court by way of this petition with following prayers :
"(A) This Hon'ble Court may kindly be pleased to admit and allow the present petition;
(B) This Hon'ble Court may kindly be pleased to issue a writ of mandamus or writ of prohibition or any other appropriate writ order or direction in the nature of same may pleased be issued to quash and set aside the business transacted and resolutions of the meeting of the Gandhinagar Municipal Corporation held on 05.11.2018 at Annexure - A to the present petition.Page 3 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020
C/SCA/17590/2018 JUDGMENT
(C) This Hon'ble Court may kindly be pleased to issue
writ of mandamus or any appropriate writ order or direction in the nature of same and be pleased to declare the business transacted in the meeting of the Gandhinagar Municipal Corporation held on 05.11.2018 at Annexure- A to the present petition, illegal, unlawful, arbitrary and contrary to the provisions of the act.
(D) This Hon'ble Court may kindly be pleased to issue writ of mandamus or any other appropriate writ order or direction in the nature of same and be pleased to direct the respondent authorities to convene the meeting of the Gandhinagar Municipal Corporation a fresh for transacting the business enumerated in the agenda dated 24.10.2018.
(E) This Hon'ble Court may kindly be pleased to order to submit the report commanding the Municipal Commissioner to produce on record the authenticated videography of the proceedings of the meeting dated 05.11.2018. This Hon'ble Court may further be pleased to order to display the videography of the meeting of the Gandhinagar Municipal Corporation held on 05.11.2018.
(F) This Hon'ble Court may kindly be pleased to stay the implementation and operation of the impugned meeting and it's proceedings dated 05.11.2018 till Page 4 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT and pending final disposal of the petition.
(G) This Hon'ble Court may kindly be pleased to order restraining the respondents from taking any policy decision except routine administration till and pending final disposal of the present petition.
(H) This Hon'ble court may kindly be pleased to appoint an officer as administrator to discharge the day to day functions of the Mayor, Deputy Mayor and standing committee of the Gandhinagar Municipal Corporation, till and pending final disposal of the present petition.
(I) This Hon'ble Court may kindly be pleased to grant any other and further relief deemed fit in the interest of justice.
3 The petitioner of Special Civil Application No. 18084 of 2018 - councilor of Gandhinagar Municipal Corporation has approached this Court by way of this petition with following prayers :
"(A) Hon'ble Court may be pleased to issue a writ of mandamus and/or certiorari or any other appropriate writ, order or direction in the nature of mandamus/certiorari quashing and setting aside the proceedings of meeting dated 05/11/2018 of Gandhinagar Municipal Corporation in relation to election of Mayor of Municipal Corporation, Gandhinagar, presided over by Collector, Gandhinagar as in-charge Municipal Page 5 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT Commissioner of Gandhinagar Municipal Corporation.
(B) Pending hearing and final disposal of this petition, Hon'ble Court be pleased to restrain the respondents their servants and agents from taking any further action/decision pursuant to Gandhinagar Municipal Corporation meeting dated 05/11/2018.
(C) Be pleased to grant any other and further relief(s) as think just and proper in the facts and circumstances of the case and in the interest of justice.
Thus, what is essentially under challenge in both the petitions is the business transacted and resolutions of the meeting of the Gandhinagar Municipal Corporation held on 05.11.2018.
4 The facts in brief as could be gathered from the memos of petitions and rival submissions deserve to be set out as under:
4.1 The petitioners are elected councilors of the Gandhinagar Municipal Corporation. The Gandhinagar Municipal Corporation has total seat of 32 councilors out of which, one was to be elected as Mayor and another as the Deputy Mayor. The two major parties namely The Indian National Congress Party and Bharatiya Janta Party had secured equal number of seats i.e. 16-16 each in the Corporation.
4.2 The first General meeting of the Corporation, was to be convened on 06.05.2016 and for the same, agenda were issued to all the Page 6 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT councilors on 27.04.2016. During election of the Mayor and Deputy Mayor, one member elected on the symbol of Indian National Congress Party namely Pravinbhai Dahyabhai Patel allegedly violated the whip of the Indian National Congress Party and contested the elections of the post of mayor against the petitioner no.1 belonging to Indian National Congress Party and said Pravinbhai Patel though was elected on the symbol of Indian National Congress Party, roposed and seconded by the members of elected on symbol of Bharatiya Janata party for the post of mayor.
He contested the election against the petitioner no.1 and polled 17 votes, i.e. one vote of his own and 16 of the members elected on Bharatiya Janta Party. Thus, Pravinbhai Patel, though elected on symbol of Indian Congress Party became mayor with the support of the 16 members of the BJP and petitioner no. 1 lost the elections for the post of mayor by 17:15 votes. Thus, said Pravinbhai Patel had incurred disqualification as per Section 3 of the Gujarat Provision for Disqualification of Members of Local Authorities for Defection Act, 1986, for being holding the post of the members of the Corporation. Accordingly, the petitioner no.1 filed disqualification petition before the Designated Authority and same was rejected by the Designated Authority by holding that there was no valid whip and therefore, it cannot be said that said Pravinbhai Patel has incurred disqualification. Having been aggrieved by the said order, the petitioner no. 1 preferred Special Civil Application No. 22388 of 2017.
4.3 On 3.10.2018 and 26.10.2018, this Court passed an order directing the filing of reply and proceedings in the matter peremptorily. It is the case of petitioner that in the meanwhile, on 24.10.2018, the Page 7 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT agenda for holding the meeting for electing Mayor and Dy Mayor on 5.10.2018 was issued as earlier duo had completed their terms of two and half years. As the outgoing Mayor's right to remain even as councilor itself was under challenge in the Spl.CA no. 22388 of 2017 the petitioners urged the court for interim orders and hearing of the petition. This Court vide order dated 1.11.2018 issued certain direction directing that let the meeting be held voting be cast on 5.11.2018 however, the vote which would be caste by respondent no. 3 shall be separately kept for identification and result shall be kept in a sealed cover till the next date of hearing, which shall be on 22.11.2018. Thus election process was not stayed but the results were ordered to be kept in sealed cover till next date of hearing.
4.4 It is case of petitioner that just prior to holding of the meeting, on 4.11.2018, General Administration Department issued a notification to transfer the Municipal Commissioner, Gandhinagar and on the same day, another notification came to be issued informing the newly appointed Municipal Commissioner, Gandhinagar was on commuted leave because of her illness and therefore, the respondent no. 3 is appointed as incharge Municipal Commissioner, Gandhinagar.
4.5 It is case of petitioner that as there was no majority in the number of councilors elected on the symbol of both the political party, on 4.11.2018 at 10.00 AM, the member of Indian National Congress Party namely Ankit Barot came to be kidnapped by the husband of the candidate for the post of Mayor set up by Bharatiya Janta Party. Accordingly, said person i.e. Ankit Barot has filed Special Civil Page 8 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT Application No. 18084 of 2018.
4.6 In view of said fact, the petitioners along with other members (Councilors) of Indian National Congress Party requested the Presiding Officer to adjourn the meeting for some time or for one day but the same was turned down by respondent no. 3 though he has no power under the Act and Rules.
4.7 It is case of the petitioner that though the meeting was required to be adjourned to ensure free and fair democratic election, however, because of stubborn attitude of respondent no.3, led to verbal and physical fight between the councilors in the meeting hall. The meeting started on 5.11.2018 at 11:35 and ended on 2:00 p.m. Thereafter, at 5:00 pm on 5.11.2018, the petitioner of Special Civil Application No. 18084 of 2018 was set free by the kidnappers. Therefore, said petitioner of Special Civil Application No. 18084 of 2018 went to office of the Superintendent of Police at 5:00 pm and he lodged police complaint at about 7:00 pm. 4.8 The petitioners submit that the entire proceedings of meeting dated 5.11.2018 for election of Mayor had proceeded further in breach of mandatory provisions under the Act and Rules and regulations framed under the Act and the proceeding of meeting dated 5.11.2018 for election of Mayor is per-se illegal, without any authority of law and hence present petitions were filed under Article 226 of the Constitution of India, for the grounds mentioned therein.
4.9 Thus, both the present petitions are filed essentially for challenging the proceedings of meeting of the Corporation dated 5.11.2018 Page 9 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT having agenda of election of Mayor and Deputy Mayor as agenda was circulated on 24.10.2018 on the ground that the entire proceedings of the meeting dated 5.11.2018 was contrary to the provisions of law and in violation of the avowed democracy principles for electing Mayor and Deputy Mayor.
5. Learned counsel for the petitioners contended that the respondents were acting in direction of helping the ruling dispensation candidate to be elected as Mayor and Deputy Mayor. The councilor for the petitioner has submitted that the transfer of the commissioner of Corporation and the newly transferred Commissioner being on leave, assigning charge to the Collector of the District were all for helping the ruling party's candidate to secure the election to the post of Mayor and Deputy Mayor. Learned counsel for the petitioner submitted that arbitrary transfer in a malicious manner of Municipal Commissioner, taking over of the charge allegedly within one day and asking the councilor to continue with the meeting despite the fact that one of the opposition members had been kidnapped, were all part of the design to defeat the candidate of the opposition.
6. Learned counsel for the petitioners thus, contended that the respondent no.3's continuing with the meting despite the fact that he was requested to adjourn and postpone the meeting on account of one of councilor being kidnapped and taking shelter of this Court's order dated 1.11.2018 passed in the proceedings of Special Civil Application No. 22388 of 2017, would be illegal and hence the entire proceedings deserves to be quashed and set aside.
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7. Learned counsel for the petitioner submitted that the meeting dated 5.11.2018 could not have been presided by the Municipal Commissioner or in-charge Municipal Commissioner as it would be contrary to the provisions of Section 453 read with schedule A and chapter II and provisions made there under of the Gujarat Provincial Municipal Corporation Act, 1949 (hereinafter referred to as 'the Act' for short) read with Schedule A, Chapter II, wherein it is clearly mentioned that the corporation's meeting are to be presided over always by the Mayor and in absence thereof by the person and office bearer mentioned thereunder but not by the Commissioner or Incharge Commissioner.
8. The learned counsel for the petitioner thus, assailed the meeting dated 5.11.2018 mainly on two grounds that the meeting could not have been continued for electing the Mayor and Deputy Mayor as per agenda item dated 24.10.2018 as the strength of both the contesting parties were known to all and one member's absence on account of he being kidnapped would have tilted the balance in favour of the ruling party heating the democracy principles harder and therefore, it was required to be postponed or adjourned and secondly on account of the fact that the meeting dated 5.11.2018 was required to be presided over by only the Mayor and in absence thereof by Deputy Mayor by the chapter II Schedule A read with Section 453 of the Act, the in-charge Commissioner being not authorized to preside over the meeting, hence the proceedings of the meeting stood vitiated.
9. The counsel for the petitioner placed heavy reliance upon the decision of this Court in case of Anilbhai Nathbhai Patel Vs. Page 11 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT Jayarj Nathabhai and others, in group of matters being Special Civil Application No. 22379 of 2005 with Special Civil Application No. 22385 of 2005 and allied matters, rendered on 23.2.2006, whereunder this Court in a situation where the balance was sought to be tilted on account of arrest of councilors, held that the election was not in a proper democratic manner and hence, result declared by the concerned Deputy Collector was set aside and the candidates of the other side would have been declared elected. The said decision was pressed into service to indicate fine nuances and marginal difference capable of tilting the balance in favour of the parties and when each vote is of great importance for maintaining the balance and vital, for electing the office bearer. Any attempt to thwart the same undemocratically would result into vitiating the proceedings as it happened in the instant case, as the petitioner of Special Civil Application No. 18084 of 2018 had been kidnapped in the morning of 5.11.2018 and that factum was brought to the notice of the Presiding Officer, who did not accept the request for adjournment under the guise of direction from this Court vide order dated 1.11.2018 passed in the petition being Special Civil Application No. 22388 of 2017.
10. The counsel for the petitioner also placed heavy reliance upon the decision of the Supreme Court in case of Jayrajbhai Jayantibhai Patel Vs. Anilbhai Nathubhai Patel and others, reported in (2006) 8 SCC 200, in which, the judgment of Gujarat High Court rendered in case of Anilbhai Nathuabhai Patel (supra) was subject matter for consideration before the Supreme Court and the Supreme Court also upheld the reasoning of Gujarat High Court and ordered a fresh election and modified the order of Gujarat High Page 12 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT Court only declaring a petitioner from the group of the petitions to have been elected.
11. The counsel for the petitioner placed heavy reliance upon the facts and reasoning of these two judgments and in support of the contention that the Presiding Officer was not justified in presiding with the election process especially when it was specifically brought to his notice that one of the councilor (petitioner of Special Civil Application No. 18084 of 2018) had been kidnapped in the morning.
12. Learned counsel for the petitioner further submitted that the bare reading of the provisions of Sec. 453 in juxtaposition of Chapter-II of Schedule I, of the Act of 1949, would leave no room for permitting any other to hold the meeting of the Corporation and its Mayor and Deputy Mayor or the persons mentioned thereunder can only be permitted to held meeting. The Section 19 provisions also would not change the situation in any manner. He relying the decision of the Supreme Court in case of Raghunath Rai Bareja and another Vs. Punjab National Bank and others, reported in (2007) 2 SCC 230, submitted that the rule for interpretation of statute warrants literal or strict construction. The literal rule of interpretation really means that there should be no interpretation. In other words, we should read the statute as it is, without imputing any words or twisting its language. The meaning of the literal rule of interpretation is simply that we mean what we say and we say what we mean. The emphasis is placed on para 57 and 58 of the decision, to support his contentions that the meeting dated 5.11.2018 in light of the provisions of the scheme and Chapter-II of Page 13 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT the Act could not have been presided over by the incharge commissioner and therefore, the presiding of the said meeting should stand vitiated on that ground.
13. Learned AGP invited Court's attention to the affidavit-in-reply filed by respondent No. 3 in both the matters and submitted that the proceedings of the meeting dated 5.11.2018 was required to be held in consonance with the interim order passed by this Court in the proceedings of Special Civil Application No. 22388 of 2017 and therefore, the petitioner were not justified in contending that the proceedings were required to be adjourned on account of so called kidnapping of petitioner of Special Civil Application No. 18084 of 2018. Counsels for the respondents further submitted that the petitioners are not justified in contending that the proceedings of the meeting of 5.11.2018 were required to be adjourned as there was no police complaint nor was any other documentary evidence produced before the Presiding Officer. It was contended on behalf of the respondent that the case cited at bar in case of Jayrajbhai (supra) are on a different facts where that detention or arrest order were pressed into service, as against that, in the instant case there was no documentary evidences in form of complaint itself indicating therein that the petitioner of Special Civil Application No. 18084 of 2018 had in fact been kidnapped.
14. The learned counsels appearing for respondents further submitted that that the order of the Court passed on 1.11.2018 in the proceedings of Special Civil Application No. 22388 of 2017 if perused closely would leave no room for doubting that there was Page 14 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT no discretion left with the respondent No. 3 for not holding the meeting.
15. Learned counsels appearing for respondents invited Court's attention to the minute of the proceedings of the meeting dated 5.11.2018 to contend that the said proceedings were concluded strictly in accordance with the interim order dated 1.11.2018 issued by this Court in the proceedings of Special Civil Application No. 22388 of 2017 and therefore the petitioners were not justified in contending that the proceedings were required to be adjourned on account of the fact which could not have been substantiated by the petitioners in any manner.
16. The counsel for the respondents invited court's attention to the provisions of Section 19 and also the provision of Section 453 read with provisions of Chapter - II of the Act, 1949 along with the Rules dated 2016 for election to the posts of Mayor and Dy.Mayor to support their submission that the meeting was required to be presided over by the Commissioner /in-charge commissioner only and on that count, the proceedings cannot be said to have been vitiated as it was not presided over by the Mayor as contended by the petitioners. It was further contended by the counsels for respondents that the petitioners cant ignore the interim order dated 1.11.2018 whereunder at their instance the court had ordered results to be kept in sealed cover and vote of the outgoing mayor was ordered to be kept separately.
17. The counsel for the respondents invited the Court's attention to the provisions of Sections 33, 34 and 35 of the Act to contend that the proceedings cannot be said to be invalid on account of so called Page 15 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT deficiency as pleaded by the petitioners. There is a statutory provision validating or rending the procedure to be valid as could be seen from those provisions.
18. Learned counsels for the respondents further contended that the proceeding of the meeting of 5.11.2018 thus being absolutely in consonance with law, could not have been said to be vitiated on account of submission that it was required to be presided over only by Mayor and then it was not adjourned though it was requested to be adjourned as there was clear order of this court directing to conduct the election as per agenda item of 24.10.2018.
19. Learned counsel for the respondents invited this Court's attention to the decision of Supreme Court in case of Union of India Vs. M/s. Chaturbhai M. Patel & Co., reported in (1976) 1 SCC 747, in support of the contention that fraud pleaded must be proved beyond doubt for its acceptance. The counsel placed heavy reliance upon para-7. It was counted that in the instant case, the petitioners have not proved in any manner the allegations qua any bias or malafide on the part of respondent nor have they successfully adduced any evidence to indicate that petitioners of Special Civil Application No. 18084 of 2018 had in fact been kidnapped in the morning of the meeting.
20. Learned counsel for the respondents also relied upon decision in case of Tukaram S. Dighole Vs,. Manikrao ShivajiKokate, reported in (2010) 4 SCC 329 to support their contention that the election petitions will have to be supported by cogent evidence regarding source and the manner of its acquisition and heavy Page 16 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT reliance is placed upon paras 12 and 13 in support of this contention.
21. The counsel for the respondent in view of the above submissions, contended that the petition deserves to be dismissed as petitioners have not made out any case for process of election, which was validly held on 5.11.2018.
22. The Court has heard the learned counsels for the parties and perused the papers of the petitions and annexures.
23. The facts in a chronology deserve to be set out as under, part of the facts, till filing of this petition could be reproduced from the list of dates and events of Special Civil Application No. 17590 of 2018 , which in verbatim reads as under:
April, 2016 The General election of The Gandhinagar Municipal Corporation were held.
The petitioners are elected member (councilor) of Gandhinagar Municipal Corporation. The total strength of the Gandhinagar Municipal Corporation is 32, out of which 16 are elected on the symbol of Indian National Congress Party and 16 are elected on the symbol of Bharatiya Janata Party. 06.05.2016 During the election of the Mayor and Deputy Mayor one member elected on the symbol of Indian National Congress Party namely Pravinbhai Dahyabhai Patel violated the whip of the Indian National Congress party and contested the elections of the post of mayor Page 17 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT against the petitioner no. 1 belonging to Indian national Congress Party. The said Pravinbhai Patel though was elected on the symbol of Indian National Congress party his name was proposed and seconded by the members elected on symbol of Bhartiya Janata Party for the post of mayor. He contested the election against the petitioner no. 1. The Pravinbhai Patel was elected as mayor by 17 votes, one of his own and 16 of the members elected on Bharatiya Janata Party. Thus, the Pravinbhai Patel though elected on symbol of Indian National Congress became mayor with the support of the 16 members of Bharatiya Janata Party and petitioner no. 1 lost the elections for the post of mayor by 17:15 votes.
Pravibhai Dahyabhai Patel had incurred disqualification as per section 3 of The Gujarat Provision for Disqualification Of Members Of Local Authorities For Defection Act, 1986, for holding the post of the member of the corporation.
The petitioner no. 1 therefore filled disqualification petition before the designated authority of the state of Gujarat for declaring him to be disqualified for defection. The application filled by the petitioner no. 1 was rejected by the designated authority holding that there was no Valid whip and therefore it can not be said that the Pravibhai Patel has incurred disqualification.
2017 The petitioner no. 1 being aggrieved and dissatisfied by the said order preferred Special Civil application Page 18 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT no. 22388 of 2017 before this Hon'ble Court. The said petition was admitted. In the meanwhile term of the mayor of two and half year was likely to be over in the month of November, and the said person was again likely to vote in the meeting.
03.10.2018 The advocate of Mr. Pravinbhai Dahyabhai Patel was and time and again seeking adjournments to prolong the 26.10.2018 decision on the same. The petitioner no. 1 wanted the petition to be decided prior to the meeting for electing mayor and deputy mayor for the remainder term and therefore was seeking priority in the matter. The Hon'ble Court on 03.10.2018 and 26.10.2018 passed specific order directing the filling of reply and proceedings with the main matter peremptorily. 24.10.2018 The agenda for holding the meeting on 05.11.2018 was also-issued in the meanwhile on 24.10.2018. 01.11.2018 This Hon'ble Court on 01.11.2018 was pleased to pass an order and issued certain directions in para 5 of the order. The para 5 of the order reads thus:
"Considering the genuine difficulty on the 'part of learned Advocate Mr. Upadhyay, whose daughter is ailing and bearing in mind the urgency expressed by learned advocate Mr. Champanerl for the petitioner for nearly three dates to the past, as the election is to be held on_05.ll.2018, let the voting take place. However, the vote which would be caste by respondent no. 3 shall be separate1y kept for Page 19 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT 'identification (if necessary) and result shall be kept in a sealed cover till the 'next date of hearing, which shall be on 22.11.2018."
04.11.2018 Just a day prior to holding of the meeting, on 04.11.2018 Government of Gujarat, General Administration Department issued a notification to transfer the Municipal Commissioner, Gandhinagar. Government of Gujarat, General Administration Department issued another notification on the same day that the newly appointed Municipal Commissioner, Gandhinagar, is on commuted leave because of her illness and therefore respondent no. 3 is appointed as incharge Municipal Commissioner Gandhinagar. From the entire hurried exercise it becomes crystal clear that how in one day only one person is transferred from the post, how his charge could had been taken on the same day, how the newly appointed officer was on leave and how the charge was given to the respondent no.3 and how the entire exercise could be done in just one day i.e. 04.11.2018, a day prior to the meeting i.e. 05.11.2018. The entire exercise of the respondent no. 1 is arbitrary, capricious and malice in law as well as in facts.
The meeting dated 05.11.2018 was to be held for electing the Mayor and deputy Mayor and Standing committee. There were 16 councilor each elected on Page 20 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT the symbol of both the parties and therefore there was a tie in numbers of the councilors elected on the symbol of both the political parties. The meeting was very interesting and vote of each councilor was very much important in the meeting dated 05.11.2018. 04.11.2018 at There was no majority in the number of councilors 10:00 a.m. elected on the symbol of both the political party and therefore the member of the Indian national Congress Party namely Ankit Barot came to .be kidnapped by the Husband of the candidate for the post of Mayor set up by Bharatiya Janata Party.
05.11.2018 at Petitioners along with other members (Councilors)of 11:00 a.m. the Indian national Congress requested the presiding officer to adjourn the meeting for some time or for one day because one of their members is kidnapped and they were trying to search for them. The said request was turned down by the respondent no. 3 though he had no powers under the act and the rules. The respondent no. 3 strongly objected for such request stating that the High Court has directed to let go the voting that means now the meeting can not be postponed. The respondent no. 3 misinterpreted the order of the Hon'ble High Court and mislead the Presiding officer and started acting as presiding officer of the meeting, which is evident from the perusal of the videography of the meeting dated 05.11.2018.
05.11.2018 One of the members elected on the symbol of Indian 11:35 a.m. To National Congress Party was kidnapped only with a Page 21 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT 1:30 p.m. view to tilt the balance of the majority and, to ensure gain of artificial majority to Bharatiya Janata Party with the aid and assistance of the Government machinery. How each vote was important in the meeting can be culled out from the fact that one of the councilor elected on the symbol of the Bharatiya janata Party namely Jaydev Parmar was critically ill in the hospital suffering from deadly virus was brought to the meeting hall with one doctor, during the meeting he was through out vomiting and even he was injected by the doctor during the meeting. Thus each and every vote was significant-in the meeting. The meeting was therefore required to be adjourned to ensure free and fair democratic election for the post of Mayor and Deputy Mayor and Standing Committee, however the stubborn attitude of the respondent no. 3 led to' verbal and physical fight between the councilors in the meeting hall. As a result one member councilor namely Jitubhai Rayka had received injuries of severe in nature as a result he was required to be operated and he had received 18 stitches at the ankle part as his muscle tissues were torn up completely. In another incidence the lady police personnel had snatched the petitioner no. 2 by tightening her noose. Thus it is apparent that the meeting had became unruly and violent and 100 police personnels including S.P. and I.G. had came to the the meeting hall within short time of starting of the meeting. It was therefore in the Page 22 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT fitness of things that the meeting should be adjourned and postponed to another date. However the respondent no. 3 exhibited the callous attitude and refused to adjourn the meeting and continue to transact the business. The respondent no. 3 was acting as presiding officer though he can not act as the one as per the provisions of the act.
In the midst of the meeting the respondent no. 3 was made the presiding officer of the meeting despite objections, which is apparent from the minutes of the meeting. The respondent no. 3 can not preside the meeting of the corporation and can at the most remain present as per the provisions of the act however he illegally presided and transacted the business at the meeting qua issue no. 2, 3 and 4 of the agenda for holding election of the Mayor, Deputy Mayor and Standing Committee. The meeting was declared over at about 2:00 p.m. 05.11.2018 at The kidnapped member Ankit Barot was thereafter set 5:00 p.m. free by the kidnappers after the meeting time was over at 3:30 pm and therefore he went to the office of the Superintendent of police at 5:00 o'clock where he as asked to lodge the complaint at the respective police station. He therefore lodged a police complaint at about 7 pm with the concerned police station about his kidnap by the husband of the Candidate of Mayor set up by the Bharatiya Janata Party and other accused.
Arbitrary transfer in malicious manner of the Page 23 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT municipal commissioner, taking over of the charge allegedly within one day, appointing municipal councilor as presiding officer, to forcibly continue with the unruly meeting in unhealthy and non democratic manner and not adjourning the meeting despite kidnap of one councilor to tilt the balance of the majority etc.... has rendered the meeting dated 05.11.2018 vitiated by vices and therefore such illegal meeting is required to be set aside and fresh meeting is required to be held in the interest of justice and to follow the democratic principles in it's true letters and spirits.
HENCE PRESENT PETITION The petitioner of SCA No. 18084 of 2018 appears to have filed petition on the same relief on 28.11.2018. The petitioner of SCA No. 18084 of 2018 prior thereto appears to have filed one application being Civil Application No. 1 of 2018 in SCA No. 22388 of 2017, wherein this Court passed the following order dated 26.11.2018:
1. Before this court proceeded to hear the application moved by the applicant, learned advocate Mr. C.B. Upadhyaya appearing for the respondent no.3 in Special Civil Application No. 22388 of 2017 stated that, no attempt was made on the part of the respondent no.3 to base the proceedings of the election on the order of this Page 24 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT Court. He also further urged that, this statement should suffice for the Court not to proceed with the application of clarification as no clarification would be needed after this voluntary statement of his.
2. Learned Senior Advocate Mr. Yatin Oza with learned advocate Mr. Rajesh K. Savjani appearing for the applicant has insisted on clarifying the order on the ground that the petitioner is going to challenge the process of election before the Coordinate bench by tomorrow i.e. 27th November, 2018 and this clarification would be vital as the concerned authorities has based the process of election as if the court has ordered the same on 5th November, 2018.
3. The petitioner of Special Civil Application No. 22388 of 2017 has already moved one substantive petition which is pending before the coordinate bench and which is likely to come up this week for hearing.
4. Let this matter be posted on 29th November, 2018. Learned senior advocate Mr. Yatin Oza shall let the court know of whether the applicant herein has in fact moved any substantive petition or not."
Lets now narrate subsequent events and their Page 25 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT happening after filing of the petitions. The registry of this Court on 8.4.2019, filed detailed note in respect of all these matters, reads as under:
"SUBMITTED TO THE HONOURABLE THE CHIEF JUSTICE:
This is regarding seeking necessary direction for placement of aforesaid matters separately before the appropriate Honourable Court.
In this connection, it is respectfully submitted that while hearing SCA No. 22388/2018 with CA No. 1/2018, the Honourable Court (Coram: Honourable Ms. Justice Bela M. Trivedi) has been pleased to pass order on 13.12.2018 (Flag-A). Thereafter, pursuant to the order dated 13.12.2018 (Flag-A) and Note dated 13.12.2018 (Flag-B) filed by the learned Advocate Mr.R.K. Savjani, Registry has placed Office Note dated 18.12.2018 and Your Lordship has been pleased to pass an administration order dated 18.12.2018 (Flag-C) for placing the aforesaid matters together before the Honourable Court (Coram : Honourable Mr. Justice J.B. Pardiwala).
In this connection, it is further respectfully submitted that, after verification of prayer clauses and averments of the aforesaid matters, it was found that aforesaid matters pertains to "Election category of Local Authorities" and hence, Registry has placed Office Note dated 23.01.2019 for placing the aforesaid matters before the Honourable Court taking up matters Page 26 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT of admission and final hearing matters relating to election matters, pertaining to House of Parliament, State Legislative Assembly & Local Authorities (Excluding Market Committee) and etc. and Your Lordship has been pleased to pass the administration order dated 23.01.2019 (Flag-D) directing to place the matters before the Honourable Court (Coram :
Honourable Mr. Justice S.R.Brahmbhatt and Honourable Mr. Justice A.G. Uraizee), as per relevant roster. Thereafter, in view of administrative order dated 07.03.2019 (Flag-E) the aforesaid matters are being heard together by the Honourable Court (Coram : Honourable Mr. Justice S.R.Brahmbhatt and Honourable Mr. Justice A.G. Uraizee).
In this connection, it is further respectfully submitted that, vide Note dated 03.04.2019 (Flag-F) of Mr.C.B. Upadhyaya, Ld. Advocate has requested to de-tag SCA No.18084/2018 and SCA No.17590/2018 from SCA No.22388/ 2017 and the Advocates on the record have no objection if the matters are de-tagged.
In this connection, it is respectfully submitted that while hearing SCA No. 17590/2018 with SCA No. 18084/2018, the Honourable Court (Coram:
Honourable Mr. Justice S.B. Brahmbhatt and Honourable Mr. Justice A.G. Uraizee) has been pleased to pass following order on 05.04.2019:
"1. Heard learned counsels for the parties.
2. In fact, in this group of matters i.e. Page 27 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT SCA No. 22388 of 2017, SCA 17590 of 2018 and SCA 18084 of 2018, SCA No. 22388 in fact has been argued and heard completely. However, in rest of two matters i.e. in SCA 17590 of 2018 and SCA 18084 of 2018 notice was issued making it returnable on 11.3.2019 and there is no dispute amongst counsels qua same. Therefore, these two matters have been segregated.
3. Unfortunately, this aspect has not been noticed by the office when office note was made on 7.3.2019, which appears to have resulted into clubbing all the matters together.
4. In view of that Shri Upadhyaya, learned advocate appearing in SCA No. 22388 of 2017 has filed a note in the office for segregation of matters i.e. SCA 17590 of 2018 and SCA 18084 of 2018.
5. Shri Oza, learned Senior counsel very fairly submitted that SCA No.22388 of 2017 was heard fully and in SCA 17590 of 2018 and SCA 18084 of 2018, the Court has issued notice. Shri Oza, learned counsel further submitted that in SCA 17590 of 2018 and SCA 18084 of 2018, clients of Shri Upadhyaya are not party.
6. Be that as it may. The office may examine the matters and obtain appropriate orders from the Hon'ble the Acting Chief Justice at the earliest.
7. Shri Oza, learned counsel earnestly urged the Court that let the office place the matters before Hon'ble Acting Chief Justice at the earliest for passing appropriate orders preferably on Monday i.e. on 8.4.2019.Page 28 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020
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1. We are sure that office may do the needful at the earliest. "
In this connection, it is further respectfully submitted that, as per present roster, admission and final hearing of matters relating to election pertaining to House of Parliament, State Legislative Assembly & Local Authorities (Excluding Market Committee) and etc. are allotted to the Honourable Court (Coram :
Honourable Mr. Justice S.R.Brahmbhatt and Honourable Mr. Justice V.B. Mayani).
Under the above circumstances, in view of the aforesaid order dated 05.04.2019 passed by the 'A' Honourable Court (Coram : Honourable Mr. Justice S.R.Brahmbhatt and Honourable Mr. Justice A.G. Uraizee), the papers of SCA No.22388/2017, SCA No.17590/2018 and SCA No.18084/2018 are respectfully placed before Your Lordship for segregation of SCA No.17590/2018 and SCA No.18084/2018 from SCA No.22388/2017 and the segregated matters may be placed separately before the Honourable Court as per present roster.
Your Lordship may, however, be pleased to pass such orders as deemed proper in the matter and action will be taken accordingly."
Date : 06 .04.2019.
RESPECTFULLY SUBMITTED THROUGH REGISTRAR (JUDICIAL):Page 29 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020
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"A "approved
Acting Chief Justice: Date: 08.04.2019 "SUBMITTED TO THE HONOURABLE THE ACTING CHIEF JUSTICE :
This is regarding seeking necessary direction for placement of the aforesaid matters before the appropriate Honourable Division Bench.
In this connection, it is respectfully submitted that the aforesaid SCA No.17590/2018 with SCA No.18084/2018 are filed challenging resolutions of meeting of Gandhinagar Municipal Corporation held on 05.11.2018 under the provisions of the Gujarat Provincial Municipal Corporations Act, 1949 vis-a-vis election of Mayor, wherein the Honourable Court (Coram : Honourable Mr. Justice S.R. Brahmbhatt and Honourable Mr. Justice V.B. Mayani) has been pleased to pass the following Oral Order dated 10.05.2019.
"In these two matters arguments were concluded and they were listed for passing orders. On account of paucity of time, orders could not have been passed. Hence, put up the matters for orders on 10.06.2019.
Registry is directed to keep copy of this order in SCA No. 18084 of 2018."Page 30 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020
C/SCA/17590/2018 JUDGMENT In this connection, it is respectfully submitted that as per present roster, Honourable Mr. Justice S.R. Brahmbhatt sits with Honourable Dr. Justice A.P. Thaker and taking up admission and final hearing matters relating to SCAs relating to Election matters pertaining to House of Parliament, State Legislative Assembly and etc. whereas Honourable Ms. Justice Harsha Devani and Honourable Mr. Justice V.B. Mayani sit in Division Bench taking up admission & final hearing of Criminal Conviction Appeals and etc. Under the above circumstances, the papers of SCA No.17590/2018 with SCA No.18084/2018 are respectfully placed before Your Lordship for placing the same before :
The Special Bench to be constituted comprising 'A' the Honourable Mr. Justice S.R. Brahmbhatt and Honourable Mr. Justice V.B. Mayani and the matters may be placed before the Division Bench who passed the earlier Oral Order 10.05.2019.
OR The Honourable Court taking up the admission 'B' & final hearing of SCA relating to Election matters, as per present roster.
Your Lordship may, however be pleased to pass such order as may be deemed fit and proper in the matter and action shall be taken accordingly.Page 31 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020
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Date : /06/2019
Submitted through Registrar (Judicial):
"A " approved ACTING CHIEF JUSTICE Date:12/06/2019 10.04.2019 This Court disposed of SCA No. 22388 of 2017, operative part whereof reads as under :
para-16 and 17, 18
16. As discussed hereinabove, we are of the view that the facts of case which have been relied upon and facts of present case are different. We do not dwell elaborately upon it. The resultant effect of resignation is that now the petition has become infructuous and therefore, petition is disposed of as having become infructuous.
Rule is discharged. Interim relief is vacated.
17. At this stage Shri Champaneri learned advocate appearing for the petitioner urges the Court that the interim relief granted vide order dated 1.11.2017 by this Court, be continued till further period of 4 weeks. The said request of Shri Champaneri, learned advocate appearing for the petitioner, is strongly opposed by the counsels for the respondents and it was submitted that as per Rule 8 of the Gujarat Provincial Municipal Corporation Rules, the result was even if can kept in sealed cover, then it would not have any material effect and therefore, it is absolutely clear that when the result is clearly capable of being spelt out as it was on account of the admission of the Rules, by raising hands, the continuation of stay would create Page 32 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT serious prejudice to the elected member, who has been elected but not functioning as such, and this situation in any way, not permissible or perpetrated and hence, this Court is unable to accept the request of Shri Champaneri and is of the view that interim relief, cannot be extended, as it would be prejudice to the newly elected party.
18. In view of order passed in main Special Civil Application, no order in Civil Application No. 1 of 2018 and Civil Application No. 1 of 2019 and are disposed of accordingly.
Thus, both these petitions contain challenge to the proceedings of the meeting of Gandhinagar Municipal Corporation held on 5.11.2018 for transacting the agenda business dated 24.10.2018 on the ground mentioned the memo of petitions.
24. The learned counsel appearing for the petitioners placed heavy reliance upon the decision of this Court in case of Anilbhai Nahtubhai Patel Vs. Jayrajbhai (supra) to support his contention that the presiding officer of the meeting was obliged to adjourn the meeting as the factum of kidnapping of the petitioners of SCA No. 18084 of 2018 was brought to his notice but he under the guise of this Court's order of 1.11.2018 passed in proceedings of SCA 22388 of 2017, continued in holding the elections.
25. The facts required to be noted that the order passed by this Court on 1.11.2018 in the proceedings of SCA No. 22388 of 2017 is required to be reproduced for its ready reference and understanding:
Page 33 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020C/SCA/17590/2018 JUDGMENT "1. This Court on 03.10.2018 passed the following order:
"Learned advocate, Mr. P.S.Champaneri has made out an urgency, Let pleadings be completed on or before October 17,2018.
Matter shall peremptorily be proceeded on October 22, 2018.
On 22.10.2018 as there was a leave note of learned advocate Mr. Upadhyaya, matter was kept on 26.10.2018. On 26.10.2018 order was passed as follows:
"1.Learned advocate, Mr.C.B.Upadhyay appearing for respondents requires time to file affidavit in reply.
According to him, the term of Mayour is getting over on November 05, 2018.
2. Learned advocate, Mr.C.P.Champaneri appearing for the petitioner is still maintaining that as he would be eligible to what though incurred disqualification, he is insisting for the early hearing of the matter.
3. Affidavit in reply to be filed on or before November 01, 2018. Affidavit in rejoinder, if any, shall be filed on or before November 01, 2018.
4.Let the matter appear on November
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01, 2018 at 02:30 p.m."
2. Learned advocate Mr. Shyamal Bhimani, junior colleague of learned advocate Mr.C.B.Upadhyaya is before this Court. According to him, daughter of learned advocate Mr. Upadhyaya is hospitalized and he is unable to attend to the Court today. He has, therefore, urged to fix the matter tomorrow. Mr. Champaneri, learned advocate for the petitioner submits that there is unanimous decision of the Bar not to conduct the matter for indefinite period for the cause which the Bar is espousing. Therefore, it is quite unlikely that the matter would be conducted tomorrow.
3. Mr. Bhimani, learned advocate for respondent No.3 has submitted that even otherwise in the matters like this, the elections are always being conducted subject to the final outcome and and, therefore, no specific order would be desirable to put any kind of restrictions on the democratic process.
4. Mr. Champaneri, learned advocate for the petitioner submits that being conscious of the fact that the challenge to the post of President of the Corporation election will be subject to the outcome, in equitable manner, working out of the modalities will be Page 35 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT necessary.
5. Considering the genuine difficulty on the part of learned advocate Mr.Upadhyaya, whose daughter is ailing and bearing in mind the urgency expressed by learned advocate Mr. Champaneri for the petitioner for nearly three dates in the past, as the election is to be held on 05.11.2018, let the voting take place. However, the vote which would be cast by respondent No.3 shall be separately kept for identification (if necessary) and result shall be kept in a sealed cover till the next date of hearing, which shall be on 22.11.2018.
6. S.O. To 22.11.2018.
Direct service is permitted."
26. The counsel for the petitioner has contended that this order cannot be said to be containing any direction and it was only providing for keeping the vote of respondent no. 3 therein separately for identification, if necessary, and result of election was to be kept in sealed cover till next date of hearing, which was 22.11.2018. Therefore, this order could not have been construed as direction to the respondent no. 3 in the present petition for holding the election, as it is stated hereinabove the decision in case of Anilbhai (supra) of this Court is relied upon and its upholding by the Supreme Court in case of Jayrajbhai (supra) is also relied upon.
27. At this stage it would not be out of place to mention that in fact the petitioner of SCA No. 188084 of 2018 did make an application for Page 36 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT seeking clarification being CA No. 1 of 2018 in proceedings of SCA No. 22388 of 2017, wherein, the Court on 26.11.2018 passed the following order :
"1. Before this court proceeded to hear the application moved by the applicant, learned advocate Mr. C.B. Upadhyaya appearing for the respondent no.3 in Special Civil Application No. 22388 of 2017 stated that, no attempt was made on the part of the respondent no.3 to base the proceedings of the election on the order of this Court. He also further urged that, this statement should suffice for the Court not to proceed with the application of clarification as no clarification would be needed after this voluntary statement of his.
2. Learned Senior Advocate Mr. Yatin Oza with learned advocate Mr. Rajesh K. Savjani appearing for the applicant has insisted on clarifying the order on the ground that the petitioner is going to challenge the process of election before the Coordinate bench by tomorrow I.e. 27th November, 2018 and this clarification would be vital as the concerned authorities has based the process of election as if the court has ordered the same on 5th November, 2018.
3. The petitioner of Special Civil Application No. 22388 of 2017 has already moved one Page 37 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT substantive petition which is pending before the coordinate bench and which is likely to come up this week for hearing.
4. Let this matter be posted on 29th November, 2018. Learned senior advocate Mr. Yatin Oza shall let the court know of whether the applicant herein has in fact moved any substantive petition or not."
28. The respondent no. 3 in the present writ petitions has filed affidavit-in-reply and made averment in respect of the order dated 1.11.2018 passed in Special Civil Application No. 22388 of 2017, which is required to be extracted hereinbelow for ready reference :
Para-7 : At this state, (the answering :respondent would like to bring to your kind notice that. the challenged. qua disqualification of member for the election of Mayor conducting in the year of April, 2016 was raised before the competent authority and the order passed by the authority is subject hatter of challenge in the Special Civil Application No: 22388 of 2017 filed before this Hon'ble Court for further adjudication.
Para-8 : That pursuant to the Agenda Notice 'dated 24.10.2018, the present writ applicant has pressed 'to conduct the pending Special Civil Application No. 22388 of 2017. That in Special Page 38 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT Civil Application No. 22388 of 2017, the Hon'ble Court has passed an order on dated 01.11.2018. The para 5 of the order is reproduced for ready reference :
"5. Considering the genuine difficulty on the part of learned advocate Mr. Upadhyaya, whose daughter ailing and bearing in mind the urgency expressed by learned advocate Mr Champaneri for the petitioner for nearly three dates in the past, as the election is to be held on 05.11.2018, let the voting take place. However, the vote which would be cast by respondent No.3 shall be separately kept for identification (if necessary) and result shall be kept in a sealed cover till the next date of hearing, which shall be on 22.11.2018."
It is most humbly stated that the Hon'ble Court has directed to proceed further in continuance of the Agenda Notice dated 24.10.2018, a meeting to be convened on 05.11.2018 for the election of Mayor, Dy. Mayor and 12 Councilors of the Gandhinagar Municipal Corporation, and directed to keep the vote of Respondent No. 3 in the sealed cover. The copy of the Order dated 01.11.2018 passed in Special Civil Application No. 22388 of 2017 is marked and annexed as Annexure R II.
Page 39 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020C/SCA/17590/2018 JUDGMENT So far as the allegation of malafide for transferring the respondent no. 3, has made following averments, which have not been controverted:
para-9 : It is most) humbly stated that as a regular measure of transfer, the State Government, through General Administration Department has made a Transfer of the Municipal Commissioner, Gandhinagar to that effect the notification was published on 04.11.2018. The copy of Notification of Transfer dated 04.11.2018 is marked. And annexed as Annexure R III.
Para 10: It is most humbly stated that the transfer order of Gandhinagar Municipal Commissioner is made on 04.11.2018. As the new Municipal Commissioner Dr. (Ms.) Ratankanvat H. Gadhvicharan, is on Commuted Leave, the Charge of the Municipal Commissioner, Gandhinagar Municipal Corporation is given to Shri S.K. Langa, IAS, Collector, Gandhinagar, appointed to function as Municipal Commissioner, Gandhingar Municipal Corporation, till Dr. (Ms.) Ratankanvar H. Gadhvicharan, IAS assumes duty as Municipal Commissioner, Gandhinagar Municipal Corporation. The copy of the Page 40 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT Notification dated 04.11.2018 is marked and annexed as Annexure - R-IV.
11. It is most humbly stated that the present answering Respondent no. 3 authority, is appointed as a In-charge Municipal Commissioner, Gandhinagar, Municipal Corporation, vide Notification dated 04.11.2018, convened a meeting on dated 05.11.2018 pursuant to the Agenda Notice dated 24.10.2018 and as per the directions issued by this Hon'ble Court by its order dated 01.11.2018 passed in Special Civil Application No. 22388 of 2017. The election of the Mayor, Deputy Mayor and 12 Councilors were conducted in consonance under Section 19 of the Gujarat Provincial Municipal Corporation Act, 1948 & under Section 1(b) of Chapter II of Schedule A of the Chapter of Gujarat Provincial Municipal Corporation Act, 1949. The copy of the minutes of meeting dated 05.11.2018 is marked and annexed as Annexure - R-V. The question paused for consideration is as to whether the respondent No. 3 was acting beyond its authority in conducting and proceedings with the meeting dated 5.11.2018 especially when he was informed about the kidnapping of one of the councilor namely the petitioner of SCA No. 18084 of 2018 especially when the Page 41 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT strength of the rival sides was so crucial as to make huge difference on account of absence of one councilor which was likely to tilt the balance. The reliance is placed on the decision of the Supreme Court, which had an occasion to consider the judgment of High Court in case of Anilbhai (supra), as mentioned by the Supreme Court in case of Jayrajbhai (supra), deserve to be set out as under :
"para-23: There is no denying the fact that in the light of clear stipulation in sub-section 4 of Section 32 of the Act, because of equality of votes the election result had to be decided by draw of lots and this is what the Presiding Officer did. But, the moot question is whether the detention of the two councillors was such a trivial factor in the subject election, which could be overlooked by the Presiding Officer? It is manifestly clear from the material on record that he was made aware of the said development. In the light of some of the circumstances, viz., (i) after arresting councillors Anilbhai Patel and Meenaben Gohil at around 12.30 P.M., just half an hour before the scheduled time for elections, the police officers did not produce them before the Magistrate immediately, but took them around Anand town in the police van and produced them before the Magistrate only at about 5.00 P.M., by which time the elections were already held and the results were also declared; (ii) no circumstance brought on record by the police to show that it would have been Page 42 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT inexpedient to wait till the elections were over before effecting arrest of Anilbhai Patel and Meenaben Gohil. Both the councillors are residents of Anand and their co-accused in the respective offences were released by the police officers themselves after arresting them on 5.11.2005; and
(iii) there was no circumstance to show that the two councillors would have escaped and avoided arrest if they were allowed to go inside the meeting hall for voting at 1.00 P.M. and if they were not arrested till the meeting for electing President and Vice-President was over. We have no hesitation in holding that the detention of the two councillors, a few minutes before the election meeting was a relevant factor which ought to have been taken into account by the Presiding Officer to decide whether to continue with the election or to postpone it and call the meeting on some other day in terms of Rule 10. Failure to do so not only offends against procedural propriety, it makes his decision to go ahead with the election meeting perverse and irrational, a facet of unreasonableness, warranting interference under Article 226 of the Constitution. In this view of the matter, we are of the opinion that the High Court has not committed any error of law and/or jurisdiction in setting aside the election of the appellant as President of the Anand Municipality."Page 43 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020
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29. The peculiar facts indicated that the arrest was a matter of fact before the concerned officer and it was a crucial question of considering the equal strength and in that situation two councilors were arrested and their none production before the Judicial Magistrate were pleaded before the Presiding Officer for assailing the election process, whereas in the instant case, the respondent no.
3 appears to have been informed about the information which other members received qua kidnapping of petitioner of SCA No. 18084 of 2018 but the respondent No. 3 appears to have proceeded along with the procedure without postponing the election on the premise that the Court passed an order for permitting the election to be conducted. In these peculiar facts, question arises as to whether the Presiding Officer was under obligation to postpone the election. This Court is of the considered view that the extracted portion of the order of this Court dated 1.11.2018 was passed only with a view to see to it that balance of convenience maintained by all and no irreparable loss to be caused. The language employed by the Court in para-5 of the order of this Court on 1.11.2018 in SCA No. 22388 of 2017 can be said to be only an enabling order but we must not overlook the fact that it was held out to the respondent No. 3 by all the concerned and in view thereof, when it was pleaded that there is no embargo against conducting the election and when the order, observation and permission of the Court as embedded in para-5 was treated as direction, one cannot be justified in holding the respondent No.3 to be acting malafide. In other words, the respondent no.3 was faced with a situation, where he was to act in conducting of the election in light of the order of this court which in fact permitted conducing the election, The Court hastens to add here that said order could not have been Page 44 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT construed as a direction for mandatorily holding the election on 5.11.2018 as sought to be made out by respondent no. 3, but Court at the same time will also not hold respondent no. 3 to be acting malafide in not adjourning the election as it is expected of the officer not to ordinarily adjourn the proceedings especially when even the Court had not thought it fit to adjourn and said order of 1.11.2018 in SCA 22388 of 2017 was cast for preventing and precipitating irreversible situation. Besides its also required to be noted that oral submission for adjournment were made and in absence of any other cogent documentary or other evidence of lodging of complaint or affidavit etc the officer could not have been expected to postpone election when its general practice and common tendencies not to postpone election proceedings once they are announced.
30. The question arises as to whether in such a situation, respondent no.
3 was under an obligation to adjourn the proceedings and if he has not adjourn, can the same be said to be an act of any malice or design, the answer would be in simple 'NO'. The respondent no. 3 was not expected of interpreting the order of this Court and was rather expected to act on his obligation to conduct the election in absence of any cogent material, placed before the respondent no. 3 warranting adjoining of the meeting, he could not be said to have acted malafide. The attended circumstances and the fact that the party seeking adjournment had not succeeded before the Court in SCA No. 22388 of 2017 in obtaining any prohibitory orders against conducting of election meeting and when the Court had passed an order on 1.11.2018 permitting the holding of election on 5.11.2018, as per the agenda note of 24.10.2018, mere oral submission to the Page 45 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT respondent No. 3 in respect of the information of kidnapping of the petitioner of SCA No. 18084 of 2018, could not have been viewed as so grave a factor as to permit him to use a discretion for postponing the proceedings. It is also not out of place here to mention that the attempt of the petitioner of SCA No. 18084 of 2018 to seek clarification by way of application No. 1 of 2018, did not yield any result, except the Court passing the order on 26.11.2018, though the Court did record that the counsel for the respondent no. 3 there in SCA No. 22388 of 2017 stated that no attempt was made on the part of the respondent no. 3 to base the proceedings of the election on the order of this Court.
31. It is required to be noted that the police arrest could be a matter of record as against this the kidnapping for which the complaint was filed in the evening of 5.11.2018 could not be equated in a fluid situation, where there was an attempt on the part of the party seeking postponement failed before the Court and the Court permitted conducting of the election as per original schedule by safe-a-guarding the parties interest. Therefore, learned counsel for the respondents were not wholly unjustified when they placed reliance upon the decision of the Supreme Court in case of Union of Indian Vs. M/s. Charutbhai Patel (supra) as well as Tukaram S. Dighole (supra) to indicate that there ought to have been appropriate evidence indicating fraud on the part of the concerned to vitiate the election procedure.
32. Having held that no malafide could be attributed to the respondent no. 3, we are of the view that the discretion in the Presiding Officer for postponement of the meeting is unquestionable and in view of Page 46 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT the decision of the Supreme Court in case of Jayrajbhai (supra), it can well be said that in a given case if there is any likelihood of any side taking any disadvantage of the situation, then the Presiding officer is under an obligation to postpone the proceeding in accordance with law. We hastened to add here that the factum of kidnapping alone could have been require to be considered for undoing the procedure of meeting dated 5.11.2018, the same is required to be considered appropriately.
33. The second ground urged in challenging the meeting of 5.11.2018 is the incompetence of the Presiding Officer, respondent no. 3 in conducting the meeting. Learned advocate for the petitioner has placed reliance upon the provisions of Section 453 read with Chapter II and item No. 1(g), to support the contention that the meeting ought to have been presided over by the Mayor only even if he was an outgoing Mayor. Section 453 of the Act reads as under:
Section 453: The rules in [Schedule A] as amended from time to time shall be deemed to be part of this Act.
The relevant portion of Chapter-II, item no. 1 reads as under:
[ SCHEDULE A ] CHAPTER II PROCEEDINGS OF THE CORPORATION, STANDING COMMITTEE, TRANSPORT COMMITTEE, ETC. Proceedings of the Corporation.Page 47 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020
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1. Provisions regulating Corporation's
proceedings, - (a) There shall be in each month at- least one ordinary meeting of the Corporation which shall be held not later than the twentieth day of the month;
(b) the first meeting of the Corporation after general election shall be held as early as conveniently may be on a day and at a time and place to be fixed by the Commissioner, and if not held on that day shall be held on some subsequent day to be fixed by the Commissioner;
(c) the day, time and place of meeting shall in every other case be fixed by the Mayor or in the event of the office of Mayor being vacant, or of the death or resignation of the Mayor or of his ceasing to be a councillor, or of his being incapable of acting, by the Deputy Mayor, or failing both the the Mayor and the Deputy Mayor, by the Chairman of the Standing Committee;
(d) the Mayor or in such event as aforesaid, the Deputy Mayor may, Whenever he thinks fit, and shall upon a written requisition signed by not less than one-fourth of the whole number of councillors or by not less than four members of the Standing Committee,call a special meeting, and every meeting of the Corporation shall, except for special reasons to be mentioned in the notice Page 48 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT convening the meeting, be held in the chief municipal office;
(e) every meeting shall be open to the public, unless a majority of the councillors present thereat decide by a resolution which shall be put by the presiding authority, of his own motion or at the request of any councillor present, without previous discussion, that any inquiry or deliberation pending before the Corporation is such as should be held in private, and provided that the presiding authority may at any time cause any person to be removed who interrupts the proceedings;
(f) if at any time during a meeting it shall be brought to the notice of the presiding authority that the number of councillors present, inclusive of the presiding authority, falls short of one third of the whole number of councillors, the presiding authority shall adjourn the meeting to some other day, fixing such time and place for the same as he shall think convenient, and the business which remains undisposed of at such meeting shall be disposed of at the adjourned meeting, or if the latter meeting should be again adjourned, at any subsequent adjourned meeting, whether there be a quorum present thereat or not;
(g) every meeting shall be presided over by the Mayor, if he is present at the time appointed for Page 49 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT holding the same, and, if the office of Mayor is vacant or if the Mayor is absent, by the Deputy Mayor or, in the absence of the Deputy Mayor, by such one of the councillors present as may be chosen by the meeting to be chairman for the occasion;
(h) atleast seven clear days, notice shall ordinarily be given of every meeting other than an adjourned meeting, but in cases of urgency any such meeting may be called, except for the purpose of considering an annual budget estimate, in pursuance or a written requisition signed by not less than four members of the Standing Committee, upon a notice of not less than three clear days; of adjourned meetings such previous notice shall be given as shall be practicable having regard to the period of the adjournment;
(i) every notice of a meeting shall specify the time and place at which such meeting is to be held and the business to be transacted thereat other than questions under section 44 and shall be given by Municipal Secretary by advertisement in atleast one local newspaper having a substantial circulation and, as far as practicable, a copy of such notice shall be sent by ordinary post to the last known address of every councillor;Page 50 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020
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(j) any councillor who desires at any meeting to bring forward any business, other than any questions under section 44, or to make any substantive proposition which is not already specified in the notice of such meeting, shall give written notice of the same to the Municipal Secretary atleast three clear days before the fixed for the meeting and a supplementary announcement of the business or propositions, of which notice has been so given, shall be given by the said Secretary in a local newspaper not later than the day previous to the meeting;
(k) except at a meeting called on a requisition of urgency or at the discussion at any meeting of a budget-estimate, no business shall be transacted at any meeting other than the business specified in the notice published under clause (j) and any questions asked under section 44 or urgent business not specified in the said notice which the Standing Committee, Transport Committee or the Commissioner deem it expedient to bring before the meeting and no substantive proposition shall be made or discussed which is not specified in the said notice or in the supplementary announcement, if any, published under clause (f) or which is not in support of the recommendation of the Standing Committee, Transport Committee or Commissioner with reference to any urgent Page 51 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT business brought by any of those authorities respectively before the meeting:
Provided that no such urgent business as aforesaid shall be brought before any meeting, unless atleast three-fourths of the councillors present at such meeting, such three-fourths being not less than one-fourth of the whole number of councillors, assent to its being brought forward thereat;
(l) at a meeting called on a requisition of urgency and during the discussion at any meeting of a budget estimate, no business shall be transacted and no substantive proposition shall be made or discussed which does not directly relate to the business for which the urgent meeting was called, or to the budget estimate, as the case may be; and no proposition involving any change in the taxes which the Standing Committee proposes to impose or the fares or charges which the Transport Committee proposes to levy or an increase or decrease of any item of expenditure in a budget-estimate, shall be made or discussed at any meeting at which such budget estimate is under consideration, unless such proposition is specified in the notice of the meeting published under clause (i) or in the supplementary announcement, if any, published under clause (j) Page 52 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT or unless, in the case of an adjourned meeting, each of the conditions mentioned in the proviso to clause (m) has been fulfilled;
(m) any meeting may, with the consent of a majority of the councillors present, be adjourned from time to time to a later hour on the same day or to any other day, but no business shall be transacted and, except as is hereinafter provided, no proposition shall be discussed at any adjourned meeting other than the business or propositions remaining undisposed of at the meeting from which the adjournment took place:
Provided that at any adjourned meeting at which a budget estimate is under consideration a proposition involving any change such as is described in clause
(i) may be made and discussed notwithstanding that such proposition is not one remaining undisposed of at the meeting from which the adjournment took place,if each of the following conditions has been fulfilled, namely: (i) that written notice of such proposition has been given at the meeting from which the adjournment took place;
(ii) that the adjournment has been for not less
than two clear days; and
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(iii) that a special announcement of the
proposition has been given by the Municipal Secretary (who shall be bound to give such announcement) in a local daily newspaper not later than the day previous to the adjourned meeting;
(n) a minute of the names of the councillors present and of the proceedings at every meeting shall, on the day following the meeting or as soon thereafter as may be, be drawn up and kept by the Municipal Secretary in a book to be provided for this purpose and shall be signed at, and by the presiding authority of, the next ensuing meeting;
and the said minute-book shall at all reasonable time, be open at the chief municipal office to inspection by any councillor free of charge and by any other person on payment of a fee of eight annas;
(o) every question other than the question whether the Standing Committee, Transport Committee or Commissioner shall be permitted to bring urgent business before a meeting without notice, shall be decided by a majority of votes of the councillors present and voting on that question, unless otherwise provided in or under this Act, the presiding authority having a second or casting vote when there is an equality of votes;
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(p) a declaration by the presiding authority that a proposition has been carried and an entry to that effect in the minutes-book shall, unless a poll be demanded at the time of such declaration by not less than four councillors, be conclusive evidence of the fact, without proof of the number of votes given for or against the proposition;
(q) when a poll is taken, the vote of each councillor present and voting upon the proposition shall be taken by tellers appointed by the presiding authority and the names of the councillors voting respectively for or against the proposition shall be recorded in the minute-book;
(r) no resolution passed by the Corporation shall be modified or cancelled within three months after the passing thereof, except by a resolution supported by not less than one-half of the whole number of councillors or by such larger number of councillors as may be required by the Act in any particular case and passed at a meeting whereof notice shall have been given fulfilling the requirements of clause (h) and setting forth fully the resolution which it is proposed to modify or cancel at such meeting and the motion or proposition for the modification or cancellation of such resolution."
Page 55 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020C/SCA/17590/2018 JUDGMENT Thus, relying upon this provision, a contention was canvassed that the Presiding Officer of the meeting of 5.11.2018 could have been only Mayor and none else. The said ground though appears to be attractive but required to be viewed very closely in juxtaposition with the relevant provision. Section 19 is also required to be reproduced whereunder the meeting was held. The said section unequivocally provides for the first meeting of the Corporation for electing Mayor and the meeting after two and half years for electing subsequent candidate for the Mayorship. The section 19 is reproduced as under :
"19. (1)The Corporation shall at its first meeting after general elections and at its first meeting 2 [ on expiry of succeeding two and half years] elect from amongst the councillors one of its member to be the Mayor 3 [(1AA) The Corporation shall, at its first meeting after general elections and at its first meeting on expiry of succeeding two and half years, elect from amongst the councillors one of its members to be the Deputy Mayor:
Provided that the term of the existing Deputy Mayor who is holding the post as such on the date of commencement of the Gujarat Provincial Municipal Corporations (Amendment) Act, 2017 shall be two and half years or till the remainder period of duration of the Corporation, whichever is earlier:Page 56 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020
C/SCA/17590/2018 JUDGMENT Provided further that the term of the Deputy Mayor, if any, who may be elected after the expiry of the term of the existing Deputy Mayor, shall be till the remainder period of duration of the Corporation.] [(1A) (a)The office of the Mayor in every Corporation shall be reserved by the State Government for Scheduled Castes, Scheduled Tribes, backward classes and women in the prescribed manner.
(b) The reservation made under clause (a) shall as nearly as may be, in the same proportion as provided in their favour under section 5.] (2)The Mayor and the Deputy Mayor shall hold office until a new Mayor and a new Deputy Mayor have been elected under sub-section (1) 1 [or sub-
section (1AA), as the case may be] and, in a year in which general elections have been held, shall do so notwithstanding that they have not been returned as councillors on the results of the elections.
(3) A retiring Mayor or Deputy Mayor shall be eligible for re-election to either office:
[Provided that Mayor shall be eligible for re- election subject to the provisions of sub-section (1A).] Page 57 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT (4) The Deputy Mayor may resign his office at any time by notice in writing to the Mayor and the Mayor may resign his office at any time by notice in writing to the Corporation.
(5) If any casual vacancy occurs in the office of Mayor or Deputy Mayor the Corporation shall, as soon as convenient after the occurrence of the vacancy, choose one of its member to fill the vacancy and every Mayor or Deputy Mayor so elected shall hold office so long only as the person in whose place he is appointed would have been entitled to hold it if the vacancy had not occurred.
The court is not impressed by the submission of the counsel qua the Mayor being required to be presiding over the meeting, though the counsel of the petitioner has relied upon the decision of the Supreme Court in case of Raghunath Rai Bareja and another (supra) to indicate that no interpretation other than lateral interpretation would be warranted and by this principle, if one reads the provision of Chapter II, one will have to come to the conclusion that the Presiding Officer needs to be Mayor as no other officer is envisaged thereunder.
34. The court is of the view that the peculiar facts of the case under which the rival contentions are being examined, would dissuade the Court from interfering with the proceedings of the meeting for the simple reason that the facts would not warrant such interference. The minutes of the meeting of 5.11.2018 clearly Page 58 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT indicates that there were 31 members present as the petitioner of SCA No. 18084 of 2018 was not present on account of his submission that he was restrained on account of he being kidnapped by the persons named in the FIR. The result as could be seen from the minutes would indicate the following scenario.
35. The minutes of the meeting held are produced on the record indicates that there were 31 members present in the corporation meeting. These 31 members included Pravinbhai Dahyabhai Patel, the person who was sought to be disqualified on account of his action in the first meeting, which was convened after the election of the corporation in the year 2016. The said disqualification petition was rejected by the Designated Authority, meaning thereby, his disqualification was not upheld by the competent authority and said order of Competent Authority was subject matter of challenge in the proceedings of SCA No. 22388 of 2017. The order of the authority was passed on 19.8.2017, by virtue of the said order, one can say that no disability was attached to said gentleman, however, as the challenge to the said order of Designated Authority was under consideration in the proceedings of SCA No. 22388 of 2017, the Court passed an order on 1.11.2018 asking the concerned to keep his vote separately and election result to be kept in sealed cover. Therefore his vote was kept separately. As a result thereof, the 31 members voting indicated that the said gentleman though cast his vote, his vote was kept in a sealed cover, and that gentleman subsequently resigned on 14.2.2019, whereupon the SCA No. 22388 of 2017 was disposed of by this Court on 10.4.2019 declaring that the said petition had become infructuous. In view of this, assuming for the sake of examining Page 59 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT without holding that the said petitioner's vote was of no consequence, as the said vote was not counted and there was no kidnapping of the petitioner of SCA No. 18084 of 2018, the result was to the effect that the respondents have voted in favour of their candidate and there favourable candidate had polled 16 voted, whereas petitioner's supported candidates polled only 14 votes. In this scenario, even if one vote of the kidnapped candidate was added, then it would only make 15, as against the respondent's supported candidates for the respondent's candidate polled 16 clear votes. Therefore, the kidnapping of the petitioner of SCA No. 18084 of 2018, in fact would not change the result in any manner. The Court is of the view that the facts, which have been crystallized in these petition could be summarized as under for appreciating the controversy.
(i) The Gandhinagar Municipal Corporation consisted of 32 Corporators, out of these 32, 16 Corporators belonged to BJP and 16 corporators belonged to Indian National Congress;
(ii) The first general meeting of the Corporation was to be convened on 6.5.2016 for which agenda was circulated to councilor on 27.4.2016.
(iii) The respondent no.3 in the petition being SCA No. 22388 of 2017 was though not recommended or set up by his own party i.e. Indian National Congress for the post of Mayor, he was proposed by one member of BJP and supported by other member of BJP. Both the members, whose names were given in the memos of SCA, were Page 60 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT admittedly a member of BJP and they could not have supported the respondent no.3 in said petition, for the Mayor's post and with the help of other side BJP, the respondent no. 3 was elected as Mayor of Gandhinagar Corporation and therefore, he had defected for which the proceedings were led before the Competent Authority.
(iv) The petition had filed for seeking declaration of disqualification of said gentleman, which was after prolonged time, rejected by the authority vide order dated 19.8.2017, which was subject matter of challenge before this Court in SCA No. 22388 of 2017.
(v) The Gandhinagar Municipal Corporation's members party where scenario would indicate that the BJP had its 16 members intact valid for casting their votes in accordance with law, as against this, a member of Indian National Congress had alleged defected and though the petition for defection was rejected by the Competent Authority the order was under challenge in the petition filed by those who wanted him to be disqualified. And at their behest this court on 1.11.2018 passed order for keeping his vote separate and result of election was ordered to be kept in sealed cover. In this situation petitioners can not approbate and reprobate to say that that outgoing mayor, whose continuation as councilor itself was challenged by them on account of their submissions that he incurred disqualification when he got himself elected as mayor in the first meeting of Page 61 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT corporation now in changed scenario be treated as qualified to vote as if he had not incurred any disqualification despite their own contention in the petition and their prayer for restraining him to act as member councilor of corporation itself. The parties strength thus was reduced only to 15 members, as against this, the respondent's party strength remain intact to 16 members, therefore, one would wonder as to how and in what manner the kidnapping of petitioner's group member would have ever helped any side, in turning the table except providing ground for seeking postponement of election. In this situation, the kidnapped member, even if he had remained present and voted, the voting members strength and the votes would have been 15 instead of 14, as against the private respondents strength being intact of 16, their candidates remain a candidates, who polled higher number of votes. Therefore, the end result was not to be affected in any manner.
36. The learned counsel appearing for the respondents invited this Court's attention to the notification dated 27.4.2016 and submitted that the said notification contains the Rules which are called the Gujarat Provincial Municipal corporation (Conduct of Elections to the offices of Mayor and Deputy Mayor) Rule, 2016. These rules have coming into force at once meaning thereby they are in force from 27.4.2016. The Rule 3, 4, 5, 6, 8, 9 thereof read as under:
"3. First general meeting :- After a general election to a Corporation, the Commissioner shall call Page 62 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT the first general meeting on the Corporation for the election to the offices of the Mayor and Deputy Mayor.
4. Place of Meeting :- The meeting convened for the election to the offices of the Mayor and Deputy Mayor shall be held on such date and at such time and place as may be fix by the Commissioner.
5. Notice of Meeting :- The Commissioner shall cause a notice of such meeting to be given to every councillor of the Corporation at least three clear days before the date of such meeting, stating the date, time and place thereof.
6. Submission of nomination paper :-
(1) The Commissioner or the Presiding Officer as the Commissioner may be order in writing appoint in this behalf shall announce in the meeting that nomination papers for the election to the offices of the Mayor and Deputy Mayor shall be delivered to him within 15 minutes of the announcement.
(2) Any Councillor who intends to contest the election to the said post shall submit his nomination in Form-I appended to these rules to the Presiding Officer in person.
(3) Each nomination paper shall state the name of the candidate in full and be subscribed by one Councillor as proposer and another as seconder.
(4) No Councillor shall propose or second the nomination of more than one candidate.Page 63 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020
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(5) Nothing in these rules shall prevent any
candidate from submitting more than one nomination papers:
Provided that, not more than four nomination papers shall be presented by any candidate.
8. Election procedure and declaration of election result :-
(1) If there is only one valid nomination the presiding authority shall declare such candidate as duly elected candidate to the post of Mayor. (2) If the number of validly nominated candidates is more than one then the presiding authority shall arrange the names of contesting candidates in alphabetical order.
(3) The presiding authority shall announce the name of each contesting candidate in the alphabetical order and shall take voting by show of hands. The names of the councillors who have voted in favour of that candidate shall be recorded in the minutes. (4) The presiding authority shall ensure that, -
(i) every member who desires to cast his vote is given fair and reasonable opportunity of casting his vote and the vote so cast is recored properly against the name of candidate in whose favour the vote is cast.
(ii) the councillor, whose vote is recorded once shall not be allowed to recast or change his vote. (5) The presiding authority shall also record the names of those councillors who abstain from voting. (6) The presiding authority after recording the names of the councillors who have voted or abstained from voting, shall announce the number of votes Page 64 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT secured by each contesting candidate. (7) The presiding authority after declaring the number of votes polled by each contesting candidate shall proceed to declare the result. The candidate who polls highest number or votes shall be declared as duly elected.
(8) In case of equality of votes the presiding authority shall declare that the result of the election shall be decided by drawing lots in such manner as he may determine.
(9) The candidate on whom the lot falls shall be declared to be validly elected to the said post. (10) The presiding authority besides recording the proceedings in writing shall also cause the proceedings to be recorded by way of videography, to ensure free and fair elections.
(11) The Municipal Secretary shall assist the presiding authority in conducting the election process and recording the proceedings of the meeting.
9. Election to the post of Deputy Mayor. - The procedure for the election to the post of Mayor shall mutatis mutandis apply for the election to the post of Deputy Mayor excepting that the newly elected Mayor shall be the presiding authority for the election for the post of Deputy Mayor.
37. The close perusal of the Gujarat Provincial Municipal corporation (Conduct of Elections to the offices of Mayor and Deputy Mayor) Rule, 2016. would clearly indicate that these rules are part of the statute and therefore, they are to be treated as statutory rules having characteristic of statute. These rules leave no Page 65 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT room for any doubt that for the post of election of Mayor and Deputy Mayor, the Presiding Officer is the Commissioner only.
38. The entire controversy now boils down to the limited issue as to whether the meeting of 5.11.2018 could be said to have been vitiated on account of in-charge commissioner presiding over the meeting, the answer is emphatic "no". The counsel of the respondent also heavily relied upon the order of learned Single Judge passed in the proceedings of Special Civil Application No. 22388 of 2017 and submitted that the said order, if perused closely, would clearly indicate that the result of the Mayor's election could be kept in sealed cover and therefore the election was not to be given effect to and hence, there is no scope for Mayor to preside over the meeting in terms of Rule 9 of the Rules.
39. This Court is of the view that the Court needs to be mindful of the fact that the controversy for Presiding Officer is no more in the gray area as sought to be made by the counsel of the petitioners. The rules for the post of Mayor and Deputy Mayor dated 27.4.2016 could be said to be a complete code in itself and artificial distinction sought to be drawn, based upon the provisions of Schedule A, Chapter-II, para-1(g), and on that strength contending that the Mayor only could be the Presiding Officer is untenable in law and therefore, same requires to be rejected.
40. This Court listed the matter on 18.02.2020 for affording opportunity to counsels to articulate their pleadings in respect of the point of Presiding Officer, the counsels requested for keeping the matter on 19.02.2020 and on that day the Counsel for the Page 66 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT private respondents made request for some more time so as to enable them to place on record the reply of the private respondents the said request of the counsel for respondents was strongly opposed and matter was further heard.
41. This Court is the view that the Gujarat Provincial Municipal corporation (Conduct of Elections to the offices of Mayor and Deputy Mayor) Rule, 2016, promulgated on 27.4.2016, if perused closely would clearly indicate that they are complete code so far as the election of Mayor and Dy. Mayor are concerned. As provided therein clearly the Presiding Officer and authority has to be Commissioner and none else and the election of Mayor and Deputy Mayor even if it is after the passage of two and half years time of the general election of the corporation, if the meeting is called for electing Mayor and Deputy Mayor as per the Rules of 27.4.2016, the Presiding Authority has to be Commissioner and none else.
42. It is not out of the place at this stage to bring into notice the provisions of sections 33, 34, 35 which reads as under:
Section : 33. No act or proceedings of the Corporation or of any committee or sub- committee appointed under this Act shall be questioned on account of any vacancy in its body.
Section : 34. No disqualification of, or defect in, the election or appointment of any person acting as a councillor, as the Mayor or the Deputy Mayor or the presiding authority of the Corporation or as the Chairman or a Page 67 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT member of any Committee or sub-committee appointed under this Act shall be deemed to vitiate any act or proceeding of the Corporation or of any such Committee or sub-committee, as the case may be, in which such person has taken part, provided the majority of the persons, who were parties to such act or proceedings were entitled to Act.
Section : 35. Until the contrary is proved, every meeting of the Corporation or of a Committee or sub-committee in respect of the proceedings whereof a minute has been made and signed in accordance with this Act or the rules shall be deemed to have been duly convened and held, and all the members of the meeting shall be deemed to have been duly qualified; and where the proceedings are proceedings of a Committee or sub-committee, such Committee or sub- Committee shall be deemed to have been duly constituted and to have had power to deal with the matters referred to in the minute."
The section 34 clearly provides that the proceeding of the Corporation etc. are not vitiated on account of disqualification of members, thereof and in its substantive part, it provides that no disqualification or defect in the election or appointment of any person acting as councilor, as the Mayor or Deputy Mayor or Page 68 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020 C/SCA/17590/2018 JUDGMENT Presiding Authority of the corporation or a chairman or a member of any committee or sub-committee shall be deemed to vitiate and act or proceedings of the corporation.
43. The aforesaid provisions take care of the situation even if there is some defect. We hastened to add here that assuming for the sake of examining without holding that there was a defect, as pleaded, the same would not vitiate the proceedings on account of Section 34 of the Act.
44. In view of the foregoing discussions, the Court is of the view that petitioners have not made out any case for interference with the proceedings of meeting dated 5.11.2018 and in the result petitions fail. The petitions deserve to be dismissed and are hereby dismissed. Notice discharged in both the matters.
(S.R.BRAHMBHATT, J) (VIRESHKUMAR B. MAYANI, J) P.S. JOSHI Page 69 of 69 Downloaded on : Thu Feb 20 22:43:43 IST 2020