Gujarat High Court
Timirkumar Tarangbhai Jayswal vs Designated Authority, State Of Gujarat ... on 11 March, 2019
Author: A.J.Desai
Bench: A.J.Desai
C/SCA/3358/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3358 of 2019
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TIMIRKUMAR TARANGBHAI JAYSWAL
Versus
DESIGNATED Officer, STATE OF GUJARAT AND SECRETARY
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Appearance:
MR CP CHAMPANERI(5920) for the Petitioner(s) No. 1,2,3,4
MR RAKESH PATEL, AGP for the Respondent(s) No. 1
JIGNESHKUMAR M NAYAK(8558) for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 11/03/2019
ORAL ORDER
1. Affidavit-in-reply filed on behalf of respondent No. 2 is taken on record. No affidavit-in-reply is filed on behalf of respondent No.1.
2. However, considering the fact that by impugned order dated 31.01.2019, the petitioners have been declared disqualified for being continuing as members of the Kalol Municipality, the matter is taken up for final hearing.
3. Rule. Mr. Rakesh Patel, learned Assistant Government Pleader as well as Mr. Jigneshkumar Nayak, learned advocate waive service of notice of Rule on behalf of respective respondents.
4. Short facts arise from the record are as under
4.1 That private respondent no. 2 filed a dispute application for disqualifying the petitioners as member of the Kalol Municipality under Section - 3 of the Gujarat Provision for Page 1 of 6 C/SCA/3358/2019 ORDER Disqualification Of Members of Local Authorities for Defection Act, 1986. The said petition was filed on 21.06.2018. Pursuant to notice issued by the Designated Officer, the petitioners approached and requested for time.
The matter was lastly listed for hearing on 31.01.2019. That the petitioners have been told that the Designated Officer is unavailable at 12.00pm and therefore, the matter was rescheduled at 4.00pm. In response to the said, the petitioners requested the Designated Officer to adjourn the matter since the advocates for the petitioners were preoccupied with other matters.
4.2. On the next date i.e. 01.02.2019, when the petitioners went for submission of their reply and for hearing of the matter, they were informed that the Designated Officer has been transferred from the said place. The petitioners insisted for submission of their reply.
4.3. Thereafter, on 14.02.2019, the petitioner received impugned order dated 31.01.2019, by which, the application filed by private respondent no. 2 was allowed.
4.4. Hence, this petition.
5. Mr. Yatin Oza, learned Senior Advocate assisted by Mr.C.P.Champaneri learned advocate appearing for the petitioners, has vehemently submitted that the impugned order dated 31.01.2019 has been passed without giving an opportunity of hearing to the petitioners. He would further submit that the defection proceeding was adjourned time and again at the instance of Designated Officer himself since he was not available for hearing the matter. By taking me through the Rojkam, which has been produced by the private Page 2 of 6 C/SCA/3358/2019 ORDER respondent No.2 herein, he would submit that on most of occasions, the Designated Officer was preoccupied with other work and therefore, the matter was adjourned. He would further submit that the Designated Officer, before whom, the matter was lastly listed on 31.01.2019, was transferred to another department. However, the Designated Officer was re- transferred on the same post on 07.02.2019 and resumed his duty on 08.02.2019. The impugned order dated 31.01.2019 has been dispatched from his office on 14.02.2019 and therefore, immediately, the present petition has been filed by the petitioners challenging the action of Designated Officer.
6. Mr. Oza, learned Senior Advocate for the petitioners, would further submit that the action of the Designated Officer is against the principles of natural justice since the petitioners were not given opportunity of hearing and the order has been passed on 31.01.2019. By taking me through the Rojkam, which was recorded on 31.01.2019, he would further submit that though a request was made on behalf of the petitioners for an adjournment, the Designated Officer has recorded that the matter is fixed for judgment. The matter was decided as if on 31.01.2019, however, the order was dispatched only on 13.02.2019 after resuming the duty. He, therefore, would submit that the impugned order be quashed and set aside and the matter be remanded for fresh consideration.
7. On the other hand, Mr.Rakesh Patel, learned Assistant Government Pleader, would submit that sufficient time was granted to the petitioners, however, no reply was filed before the Designated Officer, though, it is alleged that the reply was submitted by the advocate on behalf of petitioners on 01.02.2019, the same was not officially taken on record. He Page 3 of 6 C/SCA/3358/2019 ORDER would further submit that as per Rule - 8 of the Gujarat Provision for Disqualification Of Members of Local Authorities for Defection Rules, 1987, the Designated Officer has to decide the matter within a period of two months from the date of filing of the application. Since, the matter was filed in the month of June, 2018 and the petitioners were not cooperating for expeditious hearing, the Designated Officer has decided the matter. He, therefore, would submit that the present petition be dismissed.
8. Similar arguments are advanced by Mr. Jigneshkumar Nayak, learned advocate appearing for the private respondent no. 2. He would also submit that the petition be dismissed.
9. I have heard learned advocates appearing for the respective parties. Perused the impugned order. It has been observed in Para - 5 of the impugned order that the matter was adjourned on several occasions. However, if the Rojkam is perused, on most of the occasions, the Designated Officer himself has adjourned the matter since he was preoccupied with other work. Out of 13 adjournments, on 7 occasions, the Designated Officer himself has adjourned matter on the ground of preoccupation with other work. As far as date 31.01.2019 is concerned, there is no denial on the part of the respondent authority and the advocate that the Designated Officer has changed the hearing of the petitioners i.e. from 12.00 pm to 4.00 pm and when a request was made on behalf of the petitioners to adjourn the matter for a period of one day, the same was refused. I am of the opinion that such adjournment should have been granted to the petitioners. It is an undisputed fact that the petitioners had visited the office of the Designated Officer on 01.02.2019 for submission Page 4 of 6 C/SCA/3358/2019 ORDER of their reply and the said aspect has been verified from the file of the respondent No. 1 - Designated Officer. It is true that officially, the reply has not been taken on record. But the submissions made by the advocate for the petitioners that the petitioners had visited the office of the Designated Officer on 01.02.2019 and submitted the reply are required to be accepted.
10. It is also pertinent to note that the Designated Officer was transferred to another department and from 01.02.2019, no Designated Officer was available to deal with the defection application. The Designated Officer was again re-transferred on the same place on 07.02.2019 and resumed his duty on 08.02.2019. If the impugned order, which was sent from the office of respondent no. 1 - Designated Officer is seen, the same is dispatched on 13.02.2019 and there is no denial on the part of other side. If the decision is taken on 31.01.2019, there was no reason for the office of respondent no. 1 - Designated Officer to dispatch the same on 13.02.2019 and the impugned order dated 31.01.2019 should have been dispatched immediately. Even after resuming the duty by the Designated Officer on 08.02.2019, the impugned order dated 31.01.2019 has been dispatched on 13.02.2019.
11. It is true that under Rule - 8 of the Gujarat Provision for Disqualification Of Members of Local Authorities for Defection Rules, 1987, the Designated Officer is required to deal with the matter within a period of two months from the date of filing the defection application. However, in the present case, the matter has been adjourned time and again only on the ground that the Designated Officer was preoccupied with other work. Therefore, I found that the Page 5 of 6 C/SCA/3358/2019 ORDER impugned order dated 31.01.2019 has been passed without giving an opportunity of hearing to the petitioners and there is breach of principles of natural justices and therefore, the present petition requires consideration. Hence, following order:
[i] The impugned order dated 31.01.2019 passed by the respondent No. 1 - Designated Officer is hereby quashed and set aside.
[ii] The matter remanded to the Designated Officer for fresh consideration.
[iii] All the parties are directed to file their reply within a period of one week from today.
[iv] The respondent No. 1 - Designated Officer shall decide the matter in accordance with law and as expeditiously as possible preferably within a period of two months as per Rule - 8 of the Gujarat Provision for Disqualification Of Members of Local Authorities for Defection Rules, 1987.
[v] All the parties are also directed to cooperate for expeditious disposal of the matter.
12. It is hereby made clear that this Court has not gone into the merits of the case.
13. Rule made absolute. Direct service is permitted.
(A.J.DESAI, J) *F.S.KAZI.....
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