Gujarat High Court
Laxmiben Parthibhai Karen vs Designated Authroity - Under The ... on 29 January, 2015
Author: G.B.Shah
Bench: G.B.Shah
C/SCA/14440/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14440 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.B.SHAH
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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, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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LAXMIBEN PARTHIBHAI KAREN....Petitioner(s)
Versus
DESIGNATED AUTHROITY - UNDER THE DEFECTION ACT AND &
3....Respondent(s)
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Appearance:
Appearance:
MR. SHALIN MEHTA, LD.SR. ADVOCATE assisted by MR
DIPEN DESAI, ADVOCATE for the Petitioner(s) No. 1
MR.K.L.PANDYA, AGP, for the Respondent(s) No. 1
MR. B.B.NAIK, LD. SR. ADVOCATE, assisted by MR ASIT B
JOSHI, ADVOCATE for the Respondent(s) No. 2
MR MEHUL H RATHOD, ADVOCATE for the Respondent(s)
No. 3 - 4
MR YV VAGHELA, ADVOCATE for the Respondent(s) No. 3 - 4
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Page 1 of 18
C/SCA/14440/2013 CAV JUDGMENT
CORAM: HONOURABLE MR.JUSTICE G.B.SHAH
Date : 29/01/2015
CAV JUDGMENT
1. By way of this petition, the petitioner has prayed to quash and set aside the impugned order passed by respondent No.1-Designated Authority dated 26.08.2013 in Appeal No.7 of 2013 whereby respondent No.1 has rejected the application filed under Section 3 of Gujarat Provisions for Disqualification of Members of Local Authorities for Defection Act, 1986 (hereinafter referred to 'the Act' for short).
2. Brief facts of the case are that the petitioner is a resident of village Jagana, Taluka-Palanpur, District- Banaskantha. In the month of February 2013, election of District Panchayat, Banaskantha was declared. The petitioner and respondent Nos.2 to 4 contested the said election as the candidates belonging to Indian National Congress being members of the Indian National Congress. In the said election, result of 54 seats was declared on 25.02.2013 and the petitioner and respondent Nos.2 to 4 got elected as members of the District Panchayat, Banaskantha. Out of the said 54 seats, 28 seats went to candidates belonging to Indian National Congress and 26 seats went to candidates belonging to Bhartiya Janta Party. Thereafter, election of one remaining seat was held on 18.03.2013 and in the said election also, the candidate belonging to Indian National Congress got elected. Therefore, out of total 55 seats, 29 seats went to Indian National Congress whereas 26 seats went to Bhartiya Janta Party.
Page 2 of 18 C/SCA/14440/2013 CAV JUDGMENT2.1 The election for the President and the Vice President of Banaskantha District Panchayat was held on 13.03.2013 for which, agenda was issued on 27.02.2013 to file nomination forms on or before 12.03.2013. The petitioner filed nomination form for the post of President as a recognized candidate of Indian National Congress whereas Shri Sanjaykumar Govabhai Rabari filed his nomination form for the post of Vice President by being selected as the recognized candidate of Indian National Congress.
2.2 Shri Zakirhussain Rasulbhai Chauhan, who is the President of Banaskantha District Congress Committee, was instructed by Chairman of the Sangathan and Election Committee vide letter dated 11.03.2013 to issue necessary whip/mandate to the members of District Panchayat belonging to Indian National Congress. Upon the said instructions, Shri Zakirhussain Rasulbhai Chauhan issued mandate on 12.03.2013 to all the elected members of the District Panchayat of Indian National Congress that they have to vote in favour of the petitioner for the post of President and Shri Sanjaykumar Govabhai Rabari for the post of Vice President. The said mandate has been served upon all the elected members of the District Panchayat belonging to the Indian National Congress including respondent Nos.2 to 4 and their signatures have been taken of having received the said whip dated 12.03.2013.
2.3 Thereafter, vide letter dated 13.03.2013, the Chairman of the Gujarat Pradesh Congress Samiti, Shri Arjun Modhvadia, authorised Shri Zakirhussain Rasulbhai Chauhan Page 3 of 18 C/SCA/14440/2013 CAV JUDGMENT to issue mandate/whip to the candidates elected under the banner of Indian National Congress and on the basis of the said authorization letter, mandate dated 12.03.2013 was served upon the elected members on 13.03.2013 i.e. on the date of the meeting and they were made known about the mandate during the meeting.
2.4 The President of the Bharatiya Janata Party also issued instruction/authorization letter to issue mandate in favour of Shri Sukhdevsinh Takhatsinh Sodha for the post of Vice President. However, no instruction was issued at the relevant time for the post of President as it appeared that respondent No.2, Rajendrakumar Dhudalal Joshi was to switch over to BJP and would contest for the post of President with the support of BJP elected members. Respondent No.2 then filed nomination papers for contesting for the post of President with the support of members belonging to BJP and his nomination form was proposed by Hargovanbhai Nanjibhai Joshi, who is a member of BJP and thereby respondent No.2 changed his side and joined BJP. In order to further substantiate that respondent No.2 defected and joined BJP, mandate was issued on 12.03.2013 by the District Bharatiya Janata Party, President of Banaskantha, directing that the members belonging to the BJP shall vote in favour of Rajedrakumar Dhudalal Joshi as President and Sukhdevsinh Takhatsinh Sodha as Vice President.
2.5 Meeting of the Banaskantha District Panchayat was convened on 13.03.2013 and in the said meeting, mandates of both the parties were read over to all the 53 members present in the said meeting. Shri Arjanbhai Khetabhai Solanki of Page 4 of 18 C/SCA/14440/2013 CAV JUDGMENT Indian National Congress remained absent in the said meeting. As per Rule 10, it is the responsibility of the elected members of each Party to ascertain the whip and the said members were informed about the whip issued by both the parties. In the said meeting, respondent No.2-Rajendrakumar Dhudalal Joshi contested for the post of President against the petitioner whereas Shri Sukhdevsinh Takhatsinh Sodha contested against Shri Sanjaykumar Govabhai Rabari for the post of Vice President. Respondent Nos.2 to 4 did not vote in favour of the petitioner and thereby defied the whip of the Congress Party and voted in favour of respondent No.2, whereas, Shri Arjanbhai Khetabhai Solanki remained absent.
2.6 Thus, 26 members belonging to BJP and respondent Nos.2 to 4 voted in favour of respondent No.2-Shri Rajendrakumar Dhudalal Joshi enabling him to secure 29 votes whereas the petitioner secured 24 remaining votes of the other elected members of the Congress Party. In a similar manner, 29 votes were cast in favour of Sukhdevsinh Takhatsinh Sodha including the votes of respondent Nos.2 to 4 whereas Shri Sanjaykumar Govabhai Rabari received 24 votes of the remaining candidates belonging to Congress party.
2.7 Therefore, on the same day i.e. on 13.03.2013, the President of the Banaskantha District Congress committee forwarded a letter to President of the Gujarat State Congress Party Shri Arjun Modhvadia stating that respondent Nos.2 to 4 and Shri Arjanbhai Khetabhai Solanki have defied the whip issued by the Congress Party. On 16.03.2013, the President of the Sangathan and Election committee issued notice to respondent Nos. 2 to 4 as to why action of defection should Page 5 of 18 C/SCA/14440/2013 CAV JUDGMENT not be taken against them for defying the whip. However, it appears that no reply was filed by respondent Nos.2 to 4. Thereafter, the petitioner preferred Appeal No.7 of 2013 before the Designated Authority under section 3 of the Act to disqualify respondent Nos.2 to 4 and Shri Arjanbhai Khetabhai Solanki. Similar other appeals being Appeal Nos.6 of 2013 and 8 of 2013 were filed by another elected member from the Congress Party. The respondents filed reply to the said Appeal to which, the petitioner also filed rejoinder.
2.8 Upon hearing the arguments advanced by the parties, respondent No.1-Designated Officer passed the impugned oder dated 26.08.2013 rejecting the appeal of the petitioner which is giving rise to the present petition.
3. Heard learned Senior Advocate Mr.Shalin Mehta assisted by learned advocate Mr.Dipen Desai, for the petitioner, learned Senior Advocate, Mr.B.B.Naik assisted by learned advocates Mr.Asit B.Joshi for respondent No.2 and M/s Mehul Rathod and Y.V.Vaghela for respondent Nos.3 and 4 and learned AGP, Mr.K.L.Pandya for respondent No.1.
4. Learned Senior Advocate Mr.Shalin Mehta, for the petitioner submitted that impugned order passed by respondent No.1 is illegal, perverse and was passed under political pressure and as such, respondent Nos.2 to 4 have acted as per the wish of the party in power of the State Government. He further submitted that respondent No.1 has rejected the appeal absolutely on flimsy ground that mandate dated 12.03.2013 was issued without authorization from the President of the Congress Party as authorization was given Page 6 of 18 C/SCA/14440/2013 CAV JUDGMENT on 13.03.2013 by the President of the Congress Party which is absolutely bogus and misconceived because even during the meeting dated 13.03.2013, the mandate issued after authorization on 13-3-2013 was read over to the members. He further submitted that as the Congress Party President authorized Shri Zakirhussain Chauhan to issue mandate on 13.03.2013, the mandate issued on 12.03.2013 gets ratified. He then submitted that the designated authority has clearly overlooked Rule 10, which mandates the elected members to obtain the whip and, therefore, a duty was cast on the elected members to obtain the whip.
4.1 Mr.Shalin Mehta, learned Senior Advocate, further submitted that the designated authority has passed the impugned order on a complete misreading of Section 3(1)(b) of the Act. Taking this Court through Section 3(1)(b) of the Act, he submitted that said section clearly states that no person is specified therein to issue a whip or a mandate and it can be either by a political party or any person or authority authorized by it. He also submitted that though Zakirhussain Rasulbhai Chauhan was authorized by State Congress President, Shri Arjun Modhvadia on 13.03.2013, Zakirhussain Rasulbhai Chauhan had authority on 12.03.2013 also as a President of the District Panchayat Congress Committee, however, said authority was ratified by the State Congress President, Mr. Arjun Modhvadia, on 13.03.2013.
4.2 In this connection, he placed reliance on the following decisions:
(i) 2009 (3) GLH 14 in the case of Bhagwatiprasad Page 7 of 18 C/SCA/14440/2013 CAV JUDGMENT Himatlal Joshi and others V/s. Pinakin Pravinchandra Brahmbhatt and Another (Para-
19),
(ii) 2008 (5) GLR 3662 in the case of Pravinji Shakraji Thakore and others V/s. State of Gujarat (Para 25 and 28), and
(iii) (2008) 8 SCC 82 in the case of Sadashiv H. Patil, V/s. Vithal D. Teke and others (Para-21).
4.3 On the point of Section 3(1)(a) of the Act, he placed reliance on the following decisions by submitting that if the said point had not been raised before the designated authority, this Court can consider the same being the legal issue.
(i) AIR 2011 SC PAGE 463 in the case of Kedar
Shashikant Deshpande Etc. V/s. Bhor Municipal
Council,
(ii) AIR 2010 SC PAGE 3817 in the case of Greater
Mohali Development Authority V/s. Manju Jain,
and
(iii) AIR 1979 SC PAGE 1165 in the case of Tarini
Kamal Pandit V/s. Prafulla Kumar Chatterjee.
5. Learned Senior Advocate, Mr.B.B.Naik, drawing
attention of this Court towards page No.99 onwards
submitted that while filling up the form on 12.03.2013, as it was not decided by the Gujarat State Congress Party as to who are going to contest the election for the posts of President and Vice President, no whip was issued. According Page 8 of 18 C/SCA/14440/2013 CAV JUDGMENT to him, for issuing the whip, names of the persons contesting the election are to be determined and, therefore, two documents dated 11.03.2013 and 12.03.2013 respectively at page Nos.52-53 and page Nos.54-55 are concocted afterwards by the petitioner just to bring the proceedings under the Act. He further submitted that there has to be a specific authority in favour of Shri Zakirhussain Rasulbhai Chauhan to the effect that he is authorized to issue whip or mandate to the members and the members are as such to be made aware of the authorization. Shri Balubhai Patel, Chairman, Co- ordination and Election committee has not filed an affidavit to the effect that the letter dated 11.03.2013 was issued by him giving authority to Shri Zakirhussain Rasulbhai Chauhan. He further submitted that neither Shri Arjun Modhvadia nor Shri Balubhai Patel has filed any affidavit before the designated authority supporting the case of the petitioner and therefore, the petitioner has miserably failed to prove that there was a legal and valid whip or mandate and hence, the designated authority was justified in dismissing the appeal of the petitioner more particularly when no authorized whip or mandate has been served upon the members of the party by the President, who is competent to issue the same.
5.1 Mr.B.B.Naik further invited attention of the Court towards Annexure-H page No.62, which is an authorized letter dated 09.03.2013 written by the President addressed to Shri Bharatbhai Rajgor, District In-charge, Banaskantha and submitted that though name of column of President appeared blank, that is the internal decision of the Bharatiya Janata Party and Indian National Congress has nothing to do with the same. He further submitted that except for the whip Page 9 of 18 C/SCA/14440/2013 CAV JUDGMENT issued by the authority to vote for a particular member, the members can vote for anybody and if any member belonging to a political party has acted contrary to the direction of that political party, then only, the member can be disqualified and merely because some other party has not filled up any name for issuance of whip, a member cannot be disqualified and therefore, it is irrelevant if the column of name of President remained blank.
5.2 Mr.Naik further invited attention of the Court to the prayers made in the petition and submitted that the petition has been filed for issuance of Writ of Certiorari and therefore, the basic principle laid down for issuance of the said Writ of Certiorari is required to be looked into. He further submitted that High Court cannot go into the question of facts so far as Writ of Certiorari is concerned and even if there is an error of law apparent on the face of the record and if it does not cause miscarriage of justice, then, Court should not interfere, however, if there is an apparent error of law on the face of the record, the High Court has all powers to interfere under Article 226 of the Constitution of India. So far as the case on hand is concerned, according to him, no apparent error of law has been noticed and therefore, the designated authority has decided on the factual aspects and that too after perusing the papers produced by the petitioner before it and came to the conclusion that there was no legal or valid whip issued by Indian National Congress and accordingly, the provisions of the Act and Rule are not applicable. In this connection, he drew attention of this Court towards para-19 of the impugned order and submitted that said order is based on facts only and hence, this Court may Page 10 of 18 C/SCA/14440/2013 CAV JUDGMENT not exercise its inherent powers under Article 226 of the Constitution of India, however, if the finding of facts recorded by the designated authority is found to be perverse, this Court can certainly exercise discretion under Article 226 of the Constitution of India.
5.3 Mr.Naik further submitted that once Shri Balubhai Patel had issued the authorization letter, there was no question of Shri Arjun Modhvadia again issuing another authorization letter which itself is indicative of the fact that Shri Balubhai Patel had no authority or power to issue authorization letter.
5.4 Mr.Naik then submitted that as held by the Hon'ble Apex Court, in an election matter, neither common rights nor equity has any role to play nor can any presumption be made but it has to be proved before the designated authority by showing cogent and convincing evidence. As far as Rule-10 is concerned, he submitted that the same is applicable only when there is an issuance of legal whip or mandate, which is also required to be served in advance. In this regard, he relied on a judgment of a Division Bench of this Court decided on 29.03.2012 in Letters Patent Appeal No.811 of 2011 more particularly para-4.3 onwards and submitted that the whip/mandate should be read in the meeting and page 55, which is the copy of so-called whip/mandate dated 12.03.2013 issued by Zakirhussain Rasulbhai Chauhan, President of Banaskantha District Congress Committee was read over but no authorization letter was issued in his favour and when there is no legally issued whip/mandate, provisions of the Act cannot be invoked.
Page 11 of 18 C/SCA/14440/2013 CAV JUDGMENT5.5 Mr.Naik lastly submitted that Section 3(1)(a) of the Act cannot be considered at all because it was not contended by the petitioner before the designated authority and therefore, it cannot be permitted to be raised in the present petition even if it is considered to be a legal issue. In this connection, he relied on the following decisions:
i. 1972 (3) SCC 585 in the case of Avery India
Limited V/s. The Second Industrial
Tribunal, West Bengal and others,
ii. AIR 1976 SC 1408 in the case of The Collector
of Customs and others V/s. Pednekar and
Co. (Pvt) Ltd. (in liquidation) and
another,
iii. AIR 1981 SC 866 in the case of The General
Government Servants Co-operative Housing
Society Ltd. V/s. Wahab Uddin and others,
iv. AIR 1984 SC 1870 in the case of Krihsi Utpadan
Mandi Samiti, Kanpur, etc V/s. M/s. Ganga Dal Mill and Co. and others and v. 1997 (2) GLR 1088 in the case of Ahmedabad Co-op. Deptt. Stores Ltd. V/s. Union of India and another.
5.6 Drawing attention on a decision rendered by a Division Bench of this Court on 29-3-2012 in Letters Patent Appeal No.811 of 2011 and allied matters, Mr.Naik submitted that as mentioned therein, the basic condition of invoking and Page 12 of 18 C/SCA/14440/2013 CAV JUDGMENT applying Section 3(1)(b) is that there has to be a direction from the political Party. He further submitted that if at all direction from the President of political party is considered to have been issued, then, the same was issued only on 13-3- 2013 and prior to that, there was no direction given by the political party as required under Section 3(1)(b) of the Act.
Moreover, the moment it is proved that prior to meeting, mandate was brought to the notice of concerned member and/or it was within the knowledge of the concerned member with respect to the whip/mandate issued by the political party to which he belongs or by any person or authority authorized by it and thereafter, he has acted contrary to the said whip/mandate, in that case, he incurs disqualification under Section 3(1)(b) of the Act, however, it cannot be said that the member has a knowledge regarding the authority for issuance of whip given by the President dated 13-3-2013, copy of which is at page 60.
6. I have carefully gone through the decisions relied on by the learned Senior Advocates appearing for the respective parties more particularly the afore referred decision rendered in Letters Patent Appeal No.811 of 2011 heavily relied on by learned Senior Advocate, Mr.B.B.Naik. Referring to copy of Page 13 of 18 C/SCA/14440/2013 CAV JUDGMENT minutes at pages 69 to 78 dated 13-3-2013, it appears that whip was read over by the concerned official in the said meeting. However, it is pertinent to note that none of the members of Congress Party has raised any objection at that time or thereafter at any time till initiation of proceedings more particularly respondent Nos.2 to 4 herein.
7. When a similar issue has come up before this Court in the case of Pravinji Shakraji Thakore & Ors. v. State of Gujarat & Ors. Reported in 2008(5) G.L.R. Page 3662, a learned Single Judge of this Court has observed in paragraph No.25 that language of Section 3(1)(b) of the Act contemplates that number of defectors genuinely believe that mandate is issued by persons who have no authority to issue such mandate, then, such defector is supposed to raise a question as to the authority of the person who issued mandate at the threshold meaning thereby before initiation of the proceedings of the meeting convened. Paragraph No.25 reads as under:
"25.Language of Section 3[1][b] of the said Act contemplates that number of defectors genuinely believe that mandate is issued by a person who has no authority to issue such mandate, then, such defector is supposed to raise a question as to the authority of the person who has issued the mandate at the threshold, meaning thereby, before initiation of the proceedings of the meeting convened. It is contended by the respondent no.3 that the petitioners have conducted Page 14 of 18 C/SCA/14440/2013 CAV JUDGMENT contrary to the directions issued by the political party to which the petitioners belong. Use of expression "or"
should be considered as word significant to appreciate the scheme. The scheme provides that the mandate can be issued by the party itself or can be issued by any person authorized or has authority to issue such mandate. The Indian National Congress [I] is a national party and it has district units in every State and these units are supervised and regulated by the Gujarat Pradesh Congress Committee [GPCC]."
[Emphasis Supplied]
8. So far as the case on hand is concerned, it is not under dispute that letter dated 11-3-2013 on page 52 issued by Shri Balubhai Patel, Chairman, Sangathan and Election Committee and mandate dated 12-3-2013 on page 54 issued by Shri Zakirhussain Rasulbhai Chauhan, President of Banaskantha District Congress Committee, Palanpur, were not served in advance to the members of Congress Party. However, fact remains that they have accepted it and signed it and none has raised any grievance or objection including respondent Nos.2 to 4 prior to or even during the course of meeting held on 13- 3-2013. If they have any grievance or objection against the same, they could have raised the same in advance before the voting takes place, as referred hereinabove by the learned Single Judge of this Court. In the case on hand, respondent Nos.2 to 4, as such, have taken this defense subsequently which has no bearing as it is an after-thought and therefore, there appears no substance in the above submission made by Page 15 of 18 C/SCA/14440/2013 CAV JUDGMENT learned Senior Advocate, Mr.Naik for respondent Nos.2 to 4.
If the mandate issued by the Bharatiya Janata Party on page 62 dated 9-3-2013 is perused, it would appear that name of column of President was kept blank and no satisfactory explanation for the same is forthcoming on record. There appears substance and merit in the submission made by learned Senior Advocate, Mr.Shalin Mehta for the petitioner that a calculative effort has been made by the Bharatiya Janatha Party to have the President of their choice by leaving aside the principle and laws of Defection Act, 1986.
9. From the aforesaid, it becomes clear that it is not the case of the respondent Nos.2 to 4 that they have not received the whip/mandate of the Congress Party before the election was held. It is also not their case that they have raised any objection after getting the whip/mandate issued by the Party but they have accepted, signed and acknowledged the whip which was read over in the meeting. Once they were duly served with the mandate of the Congress Party without raising any grievance or objection at the relevant time either before or during the course of meeting, they cannot act contrary to the whip/mandate issued by the Party nor can they raise the grievance at a later stage. This means that they Page 16 of 18 C/SCA/14440/2013 CAV JUDGMENT have voluntarily given up their membership of such political party and they voted against the direction issued by the Congress Party to which they belong without obtaining prior permission of such political party. Thus, ex-facie, there is a breach of not only of Section 3(1)(b) of the Act but also of Section 3(1)(a) of the Act as far as respondent Nos.2 to 4 are concerned. Therefore, sufficient material on record exists to disqualify respondent Nos.2 to 4 for breach of Section 3(1)(b) of the Act. Therefore, findings arrived at by the designated authority as being improper and illegal require to be interfered with.
10. In view of the above, though this Court in agreement with the principles laid down in the decisions relied on by the learned Senior Advocate, Mr.Naik, they would be of no help to the respondent Nos.2 to 4 as they are found to be not applicable in the facts of the present case.
11. Under the circumstances, the impugned order passed by respondent No.1-designated authority dated 26.08.2013 in Appeal No.7 of 2013 is set aside. This petition is accordingly allowed. Respondent Nos.2 to 4 are thus liable to face the consequences that may follow as they have incurred disqualification under Section 3 of the Act.
Page 17 of 18 C/SCA/14440/2013 CAV JUDGMENT (G.B.SHAH, J.) RADHAN FURTHER ORDER
Learned advocates for the respondent Nos.2 to 4 have requested to stay the implementation of this order as they want to challenge the same before the higher forum. Learned advocate for the petitioner, Mr.Dipen Desai, has objected for the same. Considering their submissions and in the facts and circumstances of the case, implementation of this order is hereby stayed for a period of two weeks.
(G.B.SHAH, J.) RADHAN Page 18 of 18