Gujarat High Court
Ajitsinh Ramubha Jadeja vs State Of Gujarat & 2 on 12 August, 2016
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SCA/13081/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13081 of 2016
==========================================================
AJITSINH RAMUBHA JADEJA....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
==========================================================
Appearance:
MR VIJAY H NANGESH, ADVOCATE for the Petitioner(s) No. 1
MR.V.R.JANI, AGP for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 12/08/2016
ORAL ORDER
1. Present petition is filed under Articles 226 and 227 of the Constitution of India as well as under the Gujarat Provisions for Disqualification of member of Local Authorities for Defection Act, 1986, and Rules thereunder challenging the impugned order at Annexure-G on the grounds stated in the memo of appeal.
2. Heard learned advocate Shri.Vijay Nagesh for the petitioner. He referred to the provisions of Gujarat Provisions for Disqualification of member of Local Authorities for Defection Act, 1986 (herein after referred to the "Defection Act") and pointedly referred to the background of fact contending that as the respondent no.3 had abstained from voting and remaining absent and as the procedure as provided under the law, partucularily, Rule 3 of the Gujarat Provisions Page 1 of 3 HC-NIC Page 1 of 3 Created On Tue Oct 04 00:28:57 IST 2016 C/SCA/13081/2016 ORDER for Disqualification of member of Local Authorities for Defection Rule, 1987 has not been followed, present petition may be entertained.
3. He has referred to and relied upon the judgment of this High Court in case of Ajitsinh Ramubha Jadeja vs. State of Gujarat, reported in 2011(0) GLHEL-HC 225211, and pointedly referred to the observation made in Paragraph No.6 to support his contention that it is the requirement, as there is no such permission for the prescribed Form-II, the contention by the political party cannot be said to be justified, and therefore, the respondent no.3 invited disqualification, and he therefore, referring to the impugned order and submitted that the order is contrary to the statutory provision. Though this submissions have made, it requires detailed hearing inasmuch as the provisions of Defection Act, particularily Section 3 referred to Disqualification on the ground of Defecation, which would require the happening of the events. Section 4 referred Disqualification on the ground of defection not to apply in case, of Split. When he referred to Section 3 Disqualification on the ground of defection, he referred to Section 3(6) which provides that "if he votes or abstaions from voting in any meeting of a municipal corporation, panchayat or as the case may be, municipality contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf without obtaining in either case the prior permission of such political party, person or authority within fifteen days from the date of such voting or absention."
4. He therefore submitted that as the respondent no.3 abstaions from voting, the disqualification is attracted. Looking to the provisions, Section 3 read with Rule 3(6) is Page 2 of 3 HC-NIC Page 2 of 3 Created On Tue Oct 04 00:28:57 IST 2016 C/SCA/13081/2016 ORDER required to be considered. Section 3(6) referred that where the member belonging to any political party votes or abstains from voting in any meeting of a municipal corporation panchayat or municipality contrary to any direction issued by such political party, person or authority authorised by it in this behalf, without obtaining in either case, the prior permission of such political party, person or authority , meaning thereby, such permission is required. Again the rule provides for condonation in the manner after the expiry of 15 days from the date of voting or abstention by informing the Designated Officer in Form No.II. It therefore, contemplated a different situation and in the facts of the case, as observed in the impugned order that he was prevented by the sufficient cause as referred in Paragraph No.8 of the impugned order, for which, the party has condoned his absence, and therefore, it would attract the disqualification prima-facie appeared to be justified. However, in view of the judgment referred to by the learned advocate for the petitioner reported in 2011(2)G.L.H. 511 and also referred to judgment of this Hon'ble Court passed in Letters Patent Appeal No.957 of 2011 in Special Civil Application No. 2275 of 2011 dated 14.11.2011, the matter is admitted, however, the interim relief is refused.
RULE returnable on 03.10.2016.
(RAJESH H.SHUKLA, J.) Girish Page 3 of 3 HC-NIC Page 3 of 3 Created On Tue Oct 04 00:28:57 IST 2016