Gujarat High Court
Jiviben Gemabhai Pateliya vs A J Shah Or His Successor In Office & 2 on 4 August, 2016
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SCA/9167/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9167 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
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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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JIVIBEN GEMABHAI PATELIYA....Petitioner(s)
Versus
A J SHAH OR HIS SUCCESSOR IN OFFICE & 2....Respondent(s)
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Appearance:
MR PS CHAMPANERI, ADVOCATE for the Petitioner(s) No. 1
MR. V.R.JANI, AGP for the Respondent(s) No. 1
MR PJ KANABAR, ADVOCATE for the Respondent(s) No. 2
MR UM SHASTRI, ADVOCATE for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 4/08/2016
ORAL JUDGMENT
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1. The present petition is filed by the petitioner under Articles 14, 19 and 226 of the Constitution of India as well as under the provisions of the Gujarat Provisions for Disqualification of Members of Local Authorities for Defection Act, 1986 (hereinafter referred to as "the Defection Act") and under the Gujarat Provisions for Disqualification of Members of Local Authorities for Defection Rules, 1987 (hereinafter referred to as "the Defection Rules") and under the provisions of the Gujarat Panchayats Act, 1993 and also under the provisions of the Gujarat Panchayats (Procedure) Rules, 1997 for the prayers inter alia that the impugned order passed by Respondent No.1 - the designated authority dated 6.6.2016 in Dispute Application No. 1 of 2016 filed by Respondent No.2 may be quashed and set aside and also prayed for stay of the operation of the order pending hearing of the petition, on the grounds stated in the memo of petition.
2. Heard learned Counsel Shri P.S.Champaneri for the petitioner, learned AGP Shri V.R.Jani for the Respondent State and learned Advocate Shri P.J.Kanabar for Respondent No.2.
3. Learned Counsel Shri P.S.Champaneri referred to the papers and submitted that as per Section 63 of the Gujarat Panchayats Act, the meeting is required to be called and as the petitioner had fallen sick Page 2 of 12 HC-NIC Page 2 of 12 Created On Sat Aug 06 04:14:15 IST 2016 C/SCA/9167/2016 JUDGMENT on 19.12.2015, he could not remain present. He referred to the mandate (whip) at page 44 of the petition and submitted that though the whip has been given, it has not been served. He submitted that therefore medical certificate at Annexure-A is also available with the petitioner. He also referred to the provisions of the Defection Act. Learned Counsel Shri Champaneri pointedly referred to Section 2 (g) and submitted that the 'Panchayat Party' as defined has reference to the Gujarat Panchayats Act, 1961. He submitted that the 73rd Amendment in the Constitution Part-I was incorporated in the year 1993 which came into force on 4.6.1993. Therefore, referring to Article 243 (h) of the Constitution read with the provisions of Gujarat Panchayats Act, 1993, learned Counsel Shri Champaneri submitted that it came to be enacted by the Gujarat Legislative Assembly on 26.8.1993, and therefore, the Gujarat Panchayats Act, 1993 has not been taken in its sweep by necessary amendment in Section 2 (g) of the Defection Act. He submitted that even the repeal and the saving clause in the Gujarat Panchayats Act, 1993 does not make any such provision. Therefore, the proceedings under the defection laws would be null and void. He also referred to Section 3 of the Defection Act, which provide for disqualification on the ground of defection. However, learned Counsel Shri Champaneri submitted that who can give the Page 3 of 12 HC-NIC Page 3 of 12 Created On Sat Aug 06 04:14:15 IST 2016 C/SCA/9167/2016 JUDGMENT mandate is to be authorized by the political party to whom he can issue such direction. He referred to the application before the designated authority to emphasize about the controversy involved with regard to the breach of any whip and the absence of the petitioner. He also referred to the impugned order and at Annexure-D and submitted that Respondent No.1 authority has failed to appreciate that as the petitioner was not well, he could not remain present. He submitted that the person who can issue a mandate has to be authorized by a political party. Learned Counsel Shri Champaneri referred to the proceedings before the competent authority and submitted that the mandate at page 44 dated 21.12.2015 is the only document which does not bear the signature of the petitioner and therefore it cannot be said that it was served on whom. Further, he submitted that if a person issues a mandate, he has to be authorized by a political party, and therefore, as there is no such authorization by the political party, Section 3 would not be attracted. He therefore submitted that the communication (whip) at page 44 and also the authorization cannot be said to be a legal mandate. He tried to emphasize with regard to the whip and the mandate at page 44 and 42 to suggest that it is not by the person who could be said to be an authorized person. Learned Counsel Shri Champaneri referred to Section 8 of the Defection Act and Page 4 of 12 HC-NIC Page 4 of 12 Created On Sat Aug 06 04:14:15 IST 2016 C/SCA/9167/2016 JUDGMENT submitted that Section 8(4) of the Defection Act provide for the rules and Rule 3 of the 1987 Defection Rules referred to the information to be furnished by a leader of the municipal party or the panchayat party. He submitted that there is non-compliance with this requirement and therefore the order may be quashed and set aside as null and void.
4. Learned Counsel Shri P.S.Champaneri submitted that the defection law is a legislation against the malafide act and not the bona fide act. He again referred to Section 3(1)(b) of the Defection Act and submitted that it provides for condonation of the absence on the explanation being offered. He pointedly referred to Form No.2 and submitted that any explanation for condonation of absence is required to be considered in light of Form No.2. He therefore submitted that the present petition may be allowed.
5. Learned AGP Shri V.R.Jani referred to the impugned order as well as the application before the designated authority at Annexure-C and submitted that the explanation offered by the petitioner as referred to in the application at paragraph 2(b) has been considered that he could not remained present due to illness. He referred to the certificate of the Doctor at Annexure-A and submitted that it was not produced at the relevant time though the petitioner had come out with such an explanation, cannot be accepted. Similarly, Page 5 of 12 HC-NIC Page 5 of 12 Created On Sat Aug 06 04:14:15 IST 2016 C/SCA/9167/2016 JUDGMENT he submitted that though the contention has been raised that the mandate or the whip has not been served as provided under Rule 3 (6) of the Defection Rules is misconceived. Learned AGP Shri Jani pointedly referred to the observations made in the judgment reported in 1995 (1) GLH 599 in case of P.C.Sharma v. State of Gujarat and ors. and submitted that it is the obligation on such candidate to obtain the whip from the party concerned. Therefore, the submission that it was not served upon him is misconceived. Learned AGP Shri Jani has referred to the papers and submitted that Rule 10 of the Defection Rules clearly provide that a candidate who has been so elected on the symbol of a political party has to attend the meeting. He submitted that it is for such candidate to obtain such mandate from the political party or the authorized officer and therefore contention that it has not been served is misconceived.
6. Learned Advocate Shri P.J.Kanabar for Respondent No.3 has referred to the petition and submitted that the petitioner has moved the motion and the competent authority on the basis of the provisions of the Defection Act has passed an order. He submitted that in view of the order of the competent authority the present petition is an abuse of the process of court. He also referred to the judgment of the High Court reported in 2016 (1) GLR 451 in case Page 6 of 12 HC-NIC Page 6 of 12 Created On Sat Aug 06 04:14:15 IST 2016 C/SCA/9167/2016 JUDGMENT of Rajeshriben Vinayakbhai Dave and Ors. v. Designated Officer and others as well as 2011 (0) GLHEL-HC 225667 in case of Naileshbhai Jivlabhai Ahir v. State of Gujarat and pointedly referred to paragraph 9.
7. Learned Advocate Shri P.J.Kanabar referred to the affidavit in reply and submitted that neither the certificate is produced nor it is clear as to whether he is advised to take complete bed-rest and could not remain present. Therefore, when the whip dated 21.12.2015 is not in dispute and the absence of the petitioner has been noted, therefore, the moot question is whether the petitioner has offered any justification, is required to be considered. Learned Advocate Shri Kanabar has also referred to the observations made in a judgment reported in 2016 (1) GLR 451 in case of Rajeshriben Vinayakbhai Dave and Ors. v. Designated Officer and others and also the observations made in paragraphs 20 and 21 and submitted that according to the provisions, the member has to obtain the prior permission from the concerned political party which is admittedly not there. Similarly, he has also referred to and relied upon the judgment reported in 2015 (3) GLR 2453 in case of Laxmiben Parthibhai Karen v. Designated Authority. Learned Advocate Shri P.J.Kanabar submitted that as could be seen from Rule 10 of the Defection Rules, it is the duty of the member Page 7 of 12 HC-NIC Page 7 of 12 Created On Sat Aug 06 04:14:15 IST 2016 C/SCA/9167/2016 JUDGMENT of the panchayat who is elected on a symbol of a political party to ensure and verify whether the mandate has been issued or not. If the mandate is issued by the political party, he has to remain present and therefore the submission that the whip or the mandate was not served is misconceived.
8. In view of these rival submissions, it is required to be considered whether the present petition deserve consideration.
9. As could be seen from the background of the facts, admittedly the petitioner had failed to remain present and therefore the steps have been taken for committing the breach of the whip.
10. The submission made by learned Counsel Shri P.S.Champaneri that the whip has not been served with much emphasis on the communication at page 42 and 44 that it is not authorized is thoroughly misconceived. A close look at page 44 and 42 clearly suggest that the local President of the party at district level has served the mandate and it is at the instance of the party President who has been authorized. The party President seems to have conveyed the same to the local level at a district level, and on the basis thereof, the local office bearer or the district President has served the whip, which is served to Rameshbhai Pateliya. Assuming that it has not been served, it is for the candidate to obtain the whip as observed in the judgment reported in 1995 (1) Page 8 of 12 HC-NIC Page 8 of 12 Created On Sat Aug 06 04:14:15 IST 2016 C/SCA/9167/2016 JUDGMENT GLH 599 in case of P.C.Sharma v. State of Gujarat and ors The provisions of Rule 10 of the Defection Rules, which has been referred to and considered by the High Court in a judgment reported in 2016 (1) GLR 451 in case of Rajeshriben Vinayakbhai Dave and ors. v. Designated Officer and others clearly answers such a contention. It has been clearly observed:
"It is obligatory for member elected on symbol of any political party to ensure whether party has issued any whip / mandate and obtain from party."
In this judgment it has also been made clear that the defence that he was not aware about whip is not available to such a member. A useful reference can be made to the observations made in paragraphs 20, 21 and 22 of this judgment. It has been also observed that prior permission is required from the party and there is no such material placed on record by the petitioner inasmuch as admittedly he has remained absent without any such prior permission. Further, the reference to the medical certificate at Annexure-A that he was not well is also without any justification as emphasized by learned Advocate Shri P.J.Kanabar that there is no reference that he was advised bed-rest which would not enable him to attend the meeting and the same has also not been produced.
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C/SCA/9167/2016 JUDGMENT
Similarly, whether the ground for remaining absent could be said to be valid and justified, is required to be considered.
11. The provisions of the Defection Act particularly Section 3 provide for disqualification on the ground of defection. Section 3 of the Defection Act refers to abstains from voting in a meeting. Again, if he had not been able to remain present for voting, it has to be with prior approval or permission of the political party on whose symbol he has been elected. Moreover, the prior permission of the party or the authority suggest that on the genuine reason or the justification it could be condoned by such a party or the authority. However, the period of 15 days, if provided, as could be seen from the impugned order, the petitioner was afforded an opportunity also by the authority, and even at that stage, the petitioner could have shown the genuineness of the reason. The submissions which have been made referring to the Defection Rules and particularly Form No.2 under Rule 3(6) of 1987 of the Defection Rules, on a closer scrutiny clearly suggest that the it was obligatory for the person like the petitioner to inform after the expiry of 15 days from the date of voting to the designated officer as to whether it has been conveyed by a political party / person or authority or not. Admittedly, it has not been produced by the petitioner, and therefore, the submissions made on this count cannot be accepted.
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C/SCA/9167/2016 JUDGMENT
12.The submissions made by learned Advocate Shri P.S.Champaneri that the reference to the Panchayat Act of 1961 is made and not to the Act of 1993 is misconceived and it cannot take away from its sweep. It is required to be stated that what has been provided is the relevant rule or the law applicable at the time and therefore to say that the defection law would be applicable, but because the earlier Panchayat Act of 1961 is mentioned, and therefore, the Defection Act would apply to that repealed Act and the provisions of Panchayat Act, 1993 is not taken in its sweep for the purpose of Defection, is misconceived.
13. The observations made by the Hon'ble Apex Court in a judgment reported in 2992 Supp (2) SCC 651 in case of Kihoto Hollohan v. Zachillhu and ors. has a clear reference to the modern parliamentary democracy and its complexity, and therefore, to abstain from voting when required by a party to vote, would suggest a degree of unreliability. Therefore, after considering the aspect of defection with reference to the constitutional scheme and the freedom of Members to vote as they please independently of the political party's declaration or a policy has been considered. As it has been observed and quoted from Griffith and Ryle on Parliament Functions, Practice and Procedure (1989 edn., p.119) says:
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HC-NIC Page 11 of 12 Created On Sat Aug 06 04:14:15 IST 2016 C/SCA/9167/2016 JUDGMENT "Loyalty to party is the norm, being based on shared beliefs. A divided party is looked on with suspicion by the electorate. It is natural for Members to accept the opinion of their Leaders and Spokesmen on the wide variety of matters on which those Members have no specialist knowledge. Generally Members will accept majority decisions in the party even when they disagree. It is understandable therefore that a Member who rejects the party whip even on a single occasion will attract attention and more criticism than sympathy. To abstain from voting when required by party to vote is to suggest a degree of unreliability. To vote against is disloyalty. To join with others in abstention or voiting with the other side snaks of conspiracy."
14.Therefore, the present petition cannot be entertained and deserve to be dismissed and accordingly stands dismissed.
(RAJESH H.SHUKLA, J.) JNW Page 12 of 12 HC-NIC Page 12 of 12 Created On Sat Aug 06 04:14:15 IST 2016