Gujarat High Court
Shailendrasinh Bhikhusinh Bihola vs State Of Gujarat on 10 April, 2019
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt, A.G.Uraizee
C/SCA/22388/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 22388 of 2017
With
CIVIL APPLICATION (FOR CLARIFICATION) NO. 1 of 2018
In R/SPECIAL CIVIL APPLICATION NO. 22388 of 2017
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 22388 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
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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 ?
================================================================
SHAILENDRASINH BHIKHUSINH BIHOLA
Versus
STATE OF GUJARAT & 2 others
================================================================
Appearance in SCA 22388 of 2017 :
MR YATIN OZA, SR. ADVOCATE WITH MR CP CHAMPANERI(5920) for the
Petitioner(s) No. 1
MR PK JANI, LEARENED AAG WITH ASSISTED BY MR AMIT BAROT,
AGP for the Respondent No. 1
DS AFF.NOT FILED (R)(71) for the Respondent(s) No. 1,2
MR ANSIN DESAI, SR. ADVOCATE WITH MR C B UPADHYAYA(3508) for
the Respondent(s) No. 3
Page 1 of 32
C/SCA/22388/2017 JUDGMENT
Appearance in CA 1 of 2018 :
MR YATIN OZA, SR. ADVOCATE WITH MR RAJESH K. SAVJANI for the
Applicant (s) No. 1
MR PK JANI, LEARENED AAG WITH ASSISTED BY MR AMIT BAROT,
AGP for the Respondent No. 2 & 3
MR ANSIN DESAI, SR. ADVOCATE WITH MR C B UPADHYAYA(3508) for
the Respondent(s) No. 4
MR CP CHAMPANERI, for Respondent no. 1
Appearance in CA 1 of 2019 :
MR GAUTAM JOSHI, LEARNED COUNSEL WITH MR ADITYA J. PANDYA
for the Applicant (s) No. 1
MR PK JANI, LEARENED AAG WITH ASSISTED BY MR AMIT BAROT,
AGP for the Respondent No. 2 & 3
MR ANSIN DESAI, SR. ADVOCATE WITH MR C B UPADHYAYA(3508) for
the Respondent(s) No. 4
MR CP CHAMPANERI, for Respondent no. 1
================================================================
CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 10/04/2019
COMMON ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT)
1. The petitioner - councillor of Gandhinagar Municipal Corporation and applicant in Dispute Application No. 12 of 2016 before the Designated Authority under the provisions of The Gujarat Provision for Disqualification of Members of Local Authorities for Defection Act, 1986, wherein, the disqualification of respondent no.3 hereinabove was claimed and which application was rejected, 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;Page 2 of 32
C/SCA/22388/2017 JUDGMENT
(B) This Hon'ble Court may kindly be pleased to issue
a writ of mandamus or any other appropriate writ order or direction in the nature of same and be pleased to quash and set aside the impugned judgment and order dated 19.08.2017 passed in Reference Application No. 12 of 2016 passed by the respondent no. 2 at Annexure- A to the present petition;
(C) This Hon'ble Court may kindly be pleased to issue a writ of mandamus or any other appropriate writ order or direction in the nature of same and be pleased to declare the respondent no. 3 disqualified under Section 3 of The Gujarat Provision for Disqualification of Members of Local Authorities For Defection Act, 1986;
(D) This Hon'ble Court may kindly be pleased to grant any other and further relief deemed fit in the interest of justice;"
Thus, being aggrieved and dissatisfied with the order dated 19.8.2017 passed by the Designated Authority under The Gujarat Provision for Disqualification of Members of Local Authorities for Defection Act, 1986, present petition is filed under Articles 226 and 227 of the Constitution of India, on the ground mentioned in the memo of petition.
2. The facts in brief as could be gathered from the memo of petition and rival submissions deserve to be set out as under:
Page 3 of 32C/SCA/22388/2017 JUDGMENT 2.1 The petitioner was an elected member (Councillor) of the
Gandhinagar Municipal Corporation. The Gandhinagar Municipal Corporation has total seat of 32 members, out of which, one is to be elected as Mayor and another as the Deputy Mayor. The two major parties namely The Indian National Congress Party and Bhariya Janta Party and secured equal number of seats i.e. 16-16 each in the Corporation and petitioner and respondent no. 3 both belonged to The Indian National Congress Party.
2.2 The first General meeting of the Corporation, was to be convened on 06.05.2016 and for the same the agenda were issued to all the members (Councillors) on 27.04.2016.
2.3 The Indian National Congress Party issued a whip to the members of the Corporation elected on it's symbol to remain present in the meeting and to vote in favour of the present petitioner for the post of Mayor and to vote in favour of other persons for the post of Deputy Mayor and members of the standing committee. Each and every elected municipal Councillor (Corporator) was served with a copy of the whip/mandate.
2.4. The petitioner has contended that there was a clear whip issued by the petitioner's party for enjoining upon their elected members to remain present in the meeting and cast votes in favour of the parties for the post of Mayor and Deputy Mayor as set up by the party. This whip was received by all the elected members.
Page 4 of 32C/SCA/22388/2017 JUDGMENT 2.5. It is submitted that there was first General meeting of The Gandhinagar Municipal Corporation, to be convened on 6.5.2016 and for the same the agenda was issued to all the members (Councillors) on 27.04.2016. The Indian National Congress Party issued a whip to the members of the Gandhinagar Municipal Corporation elected on it's symbol to remain present in the meeting and to vote in favour of the present petitioner for the post of Mayor and to vote in favour of other persons for the post of Deputy Mayor and members of the standing committee.
2.6. It is submitted that as per the provisions contained in Rule 10A of the Defection Rules members of the Gandhinagar Municipal Corporation elected on the symbol of the political party while attending any meeting of the Gandhinagar Municipal Corporation has to ensure whether any mandate has been issued by such political party and if any mandate has been issued, he or she shall obtain such mandate and vote according to the mandate. However, each and every elected municipal Councillor (corporator) was served with a copy of the whip/mandate. All members had also acknowledged their receipt of whip/mandate by putting the endorsement of the receipt. It is pertinent to mention that the respondent no. 3 had also received the whip/mandate, however, he refused to put endorsement of the receipt despite gentle request.
2.7. It is submitted that so far as the election for the post of Mayor was concerned the mandate/whip was issued and the same was circulated amongst the members elected on the symbol of Page 5 of 32 C/SCA/22388/2017 JUDGMENT Indian National Congress party and all such members were served with the copy of the mandate/whip. The provisions contained in Rule 10A governs the field and therefore it becomes crystal clear that it is the duty of each member (Councillor) to obtain the copy of the mandate/whip after making due inquiry. The petitioner therefore, submits that no member (Councillor) of the Gandhinagar Municipal Corporation can raise any dispute with regard to knowledge about the mandate /whip and with regard to receiving a copy of the whip/mandate of the Indian National Congress Party.
2.8. It is submitted that after obtaining the copies of the mandate/whip all the members (Councillors) of the Gandhinagar Municipal Corporation elected on the symbol of Indian National Congress Party were required to vote in accordance with the whip issued and served to them. The petitioner was the candidate selected by the Indian National Congress Party to fill up the post of Mayor of the Gandhinagar Municipal Corporation and therefore Ankitbhai Barot proposed the name of the petitioner for the post of Mayor by filling up the nomination and the same was supported by the Jayrajsinh Vaghela.
2.9. It is submitted that name of respondent no. 3 was proposed for the post of Mayor by one Nitinbhai Somnath Patel and the same was supported by one Dhirubhai Gandabhai Dodiya. It is pertinent to note here that both Nitinbhai Somnath Patel and Dhirubhai Gandabhai Dodiya are municipal Councillor elected on the symbol of Bhariya Janta Party i.e. the rival political party to which the petitioner belongs. The respondent no. 3 also agreed to hold the post if he gets elected, by filing an affidavit just below the Page 6 of 32 C/SCA/22388/2017 JUDGMENT nomination form.
2.10. It is submitted that the candidature of the respondent no.3 was contrary to the directions issued in the mandate/whip by The Indian National Party, however the respondent though elected on the symbol of the Indian National Congress Party, intentionally chose to act contrary to the mandate/whip of the political party. The respondent no.3 contested the election for the post of Mayor contrary to the directions issued in the mandate/whip of the Indian National Congress Party and also against the candidate set up for the post of mayor by the Indian National Congress Party, and also voted in his own favour for the post of Mayor contrary to the directions issued in the mandate/whip of the Indian National Congress party. The respondent no. 3 remained neutral in the voting for the post of Deputy Mayor and did not vote in favour of members of the committee. The respondent no. 3 has therefore acquired disqualification to hold the post of member (Councillor) of the Gandhinagar Municipal Corporation in view of the provisions contained in Section 3 of the Defection Act. That the minutes of the meeting dated 6.5.2016 will make it crystal clear that the respondent herein has acted contrary to the directions issued and votes contrary to the whip/mandate.
2.11. It is submitted that the whip/mandate was issued by the competent authority of the Indian National Congress Party. The authorized representative of the party had handed over the copy of the whip / mandate to the presiding officer of the meeting and the said presiding officer had permitted the reading of the mandate/whip issued by the party, before the meeting commenced.
Page 7 of 32C/SCA/22388/2017 JUDGMENT The whip/mandate was read exactly at 11:36:11 A.M. And after reading the mandate / whip the candidates were given time to withdraw nomination form however, neither petitioner nor respondent No.3 withdraw their nomination form and contested the election for the post of Mayor. It is also pertinent to note that the proceedings of the entire meeting dated 6.5.2016 was video graphed and perusal of the Compact Disc prepared by the videographer appointed by the government officials makes it crystal clear that abovementioned facts are true and correct narration of the incidences which took place in meeting dated 6.5.2016. The petitioner had requested the competent authority to provide the official copy of the Compact disc in which the meeting dated 6.5.2016 was video graphed, and the authority was pleased to supply the same to the petitioner. The petitioner was the candidate selected by the party however, the respondent no. 3 continued and contested the election in contravention with the directions issued by the Indian National Congress Party.
2.12. It is stated that the respondent no. 3 is elected member (Councillor) of the Gandhinagar Municipal Corporation, elected on the symbol of Indian National Congress Party and therefore he was supposed to act as per the directions issued by the political party and to vote as per the whip/mandate issued and served to him, however, he chose to vote contrary to the whip/mandate and therefore the candidate selected by the Indian National Congress Party for the post of Mayor, Deputy Mayor and Standing Committee could not win the election by the deciding vote of the respondent no.3.
Page 8 of 32C/SCA/22388/2017 JUDGMENT 2.13. It is submitted that the respondent no..3 had not sought any permission prior to acting and voting contrary to the directions issued in mandate/whip of the political party to which he belonged and his voting contrary to the mandate/whip has not been pardoned by the Indian National Congress Party, till date in any manner.
2.14. It is stated that the petitioner therefore filed reference petition for declaration of disqualification before the respondent no. 2 on 31.5.2016 and before filing the petition the petitioner has satisfied himself that there are reasonable grounds for believing that a question has arisen as to whether respondent no.3 has become subject to disqualification under the Act and the rules and thereafter only is filing the present petition. The petitioner has along with the application produced all documentary evidence relied by and the same has been supplied by the competent authority as well as the Court which issued the mandate/whip and the same are either originals or the true copies of it's originals.
2.15. It is stated that the petitioner has filed the petition before the respondent no.2 on 31.05.2016 however the concerned section officer as the higher officers refused to accept the same and put an endorsement of copy received. The advocate of the petitioner therefore was compelled to file the petition with the registry dispatch counter wherein the endorsement of the receipt was affixed on the copy of the petitioner. The advocate of the petitioner thereafter again on 16.06.2016 went to request the respondent no.2 personally to do the needful in the matter and issue notice at that time, respondent Page 9 of 32 C/SCA/22388/2017 JUDGMENT no.2 had replied that yes that file is yet pending at his table he has seen the same and he will probably issue notice fixing the date of hearing within 3-4 working days. The advocate at that time replied that sir more than two weeks has passed from the date of filling still you have not seen the file and not issued notice which is unfair and arbitrary at that time it was assured by the respondent no.2 that don't worry I will do the needful stay rest assured.
2.16. It is stated that the petition for disqualification filled by the petitioner before the respondent no.2 fulfilled all the requisite conditions mentioned in rule 6 of the rules. The procedure prescribed in rule 7 of the rules is that the respondent no.2 has to consider whether the petition complies with the requirement of rule 6 or not and if does not comply with the same he may dismiss the petition and intimate the petitioner accordingly. If the petition complies with the requirement of rule 6 then the respondent no.2 shall issue notice and cause copies of the same to be served to the respective Councillor in relation to whom the petition is made.
2.17. It is stated that that in the present case the petition fulfills all the requirements of rule 6 and therefore the respondent could not pass any order of dismissal of the petition till date. However, the respondent no.2 has arbitrarily acted by not issuing the notice to the respondent no.3 for a long period.
Page 10 of 32C/SCA/22388/2017 JUDGMENT 2.18. It is stated that as per the unamended Rule 8 it was provided that every petition under Rule 6 shall be decided expeditiously and within a period of six months from the date on which the petition is made. The said Rule 8 came to be amended further and the legislator looking to the seriousness of the issue involved in the petition of the nature of rule has though it fit to provide for final decision on the petition within a period of sixty days from the date on which it is filled.
2.19. The petitioner had filed petition more than 45 days back and the same as per rule ought to have been decided within 60 days as per rule 8 however in the instant case the same was pending awaiting issuance of it's notice fixing the date of hearing which can only be termed as inaction of the respondent no.2 in arbitrary manner with malafide intentions and ulterior motive.
2.20. It is stated that due to illegal inaction of the respondent no.2 the petitioner was constrained to approach this Court challenging such illegal inaction of the respondent no.2. The petitioner had preferred Special Civil Application No.12758 of 2016.
2.21. It is stated that the said petition came up for hearing before this Court on 04.08.2016, at the time of hearing learned GP has made a statement on instructions that "within a week the authority concerned shall appoint and or give the charge of the designated authority, if it is already not made. Thereafter within four weeks, the authority concerned shall proceed Page 11 of 32 C/SCA/22388/2017 JUDGMENT further and finally decide the aspect of disqualification of the respondent no.3. "In view of the statement made this Court passed the order and directed that "In view of the statement, learned advocate Shri Champaneri for the petitioner does not press this petition. The present stands disposed of, as not pressed, however, liberty is reserved to move in case of difficulty.".
2.22. It is stated that despite the statement made by the respondent no.1 upon instruction the respondent no.2 did not issued a notice fixing the date of hearing till the period so stated had expired. The said act is in sheer willful disobedience of the direction issued by this Court pursuant to the statement made before this Court.
2.23. The petitioner has narrated the grievance in respect of matter being not heard in para nos. 3.23 to 3.38. It is stated that after prolonging the matter and hearing, the respondent no.2 ultimately, passed an order on 19.8.2017 and recorded the finding that there was no whip and it was not served by the person authorized and therefore, the respondent no. 3 cannot be declared disqualified, which rise the present petitioner to file aforesaid Special Civil Application under Articles 226 and 227 of the Constitution of India on the grounds mentioned therein and for aforesaid reliefs.
3. The counsel for the petitioner invited this Court's attention to the provisions of The Gujarat Provision for Disqualification of Members of Local Authorities for Defection Act, 1986 (hereinafter referred to as 'the Defection Act' for short for the sake of convenience) and submitted that development of incidents, which Page 12 of 32 C/SCA/22388/2017 JUDGMENT are almost undisputed, would clearly indicate that respondent no. 3 in violation of clear mandate, offered his candidature and contested the election for the post of Mayor with support of the opposition and got himself elected. This fact on its own strength is sufficient to bring home the factum of respondent no.3's disqualification without any further aid, assistance and submission in this behalf.
4. Learned counsel for the petitioner further submitted that plain and simple perusal of the provision of Section-3 would clearly indicate that member has to act in accordance with the mandate issued and when the said Act of defiance or disobedience is not contained by the mandate issuing party on whose symbol the member was elected, he is rendering himself disqualified without any further overt or additional act. Now it is well settled law that the defection is incurred on the day when the deficiency is perpetrated and in the instant case, the very fact that the respondent no. 3, who had not been named as candidate for the post of Mayor by the party setting up him, could not have opted for contesting Mayor's election, that too, with the support of opposition party. As these facts are so glaring, it can well be said that defection incurred by the respondent no. 3 was not warranting any further probing or was not in any gray area so as to leave any room for any other probing or examination.
5. Learned counsel for the petitioner has invited this Court's attention to the fact that mandate at page-65 and page-66 is the communication, which was an accompaniment of the page-65 mandate. In other words, page-65 and 66 constituted the mandate and on a plain and simple reading thereof, would leave no doubt qua its mandatory requirement, which would clearly indicative that the party, which set up the respondent no. 3, had issued mandate Page 13 of 32 C/SCA/22388/2017 JUDGMENT for casting vote for the candidate, which they have nominated for the post of Mayor i.e. present petitioner and one more person for Deputy Mayor's post. The respondent no. 3 despite having been elected on the symbol of the party, could not have defy the mandate with impunity. Not only that, he has offered his candidature for the post of Mayor but his Councillor got supported by opposite party, which ultimately resulted into he being elected as a Mayor defying the mandate of the party. This situation occurred because Gandhinagar Municipal Corporation is consisting of 32 members and both the major posts have equal number of elected candidates. When such a crucial condition, as prevalent, the post of Mayor and Deputy Mayor and Standing Committee members assumes a different importance and therefore, in terms of the provisions of the Defection Act, the duty which is cast under Rule-10 of Defection Rules, could not have been ignored by the member. The duty was cast upon the member not only to inquire with the party in respect of the member but obtain a copy and act in accordance therewith. The duty in casting upon the member to fill the mandate in terms of Rule 10 of Defection Rules, is no more matter of discussion and/or it hardly requires any submission. There are catena of decisions on this point, which unequivocally go to show the members' duty is to inquire and obtain mandate copy and act in accordance therewith else the disqualification is incurred and therefore when these facts are glaring, there was hardly any scope for dispute qua the disqualification. Page Nos. 65, 66, 70 and 71 contain the acknowledgment mandate on behalf of fellow party members and Councillors and respondent no.3's conspicuous omission in indicating that he is not recipient, would speak volume about the conduct and therefore, the following authorities, which have been relied upon by the counsel for the petitioner, would strengthen the submissions at bar:
Page 14 of 32 C/SCA/22388/2017 JUDGMENT
(i) Decision in case of Dr. Mahachandra Prasad Singh Vs.
Chairman, Bihar Legislative Council and others, reported in (2004) 8 SCC 747;
(ii) decision in case of Rajendra Singh Rana Vs. Swami Prasad Maurya, reported in (2007) 4 SCC 270,
(iii) Decision rendered in Special Civil Application No. 16135 of 2016 dated 3.8.2018, para-9.4;
(iv) Decision in case of Jayrajbhai Jayantibhai Patel Vs. Anilbhai Nathubhai Patel & Ors., reported in (2006) 8 SCC 200;
(v) Decision rendered in Letters Patent Appeal No. 733 of 2011 dated 03.08.2011;
6. The learned counsel appearing for the respondents submitted that order impugned does not call for any interference as the mandate and subsequent event would clearly indicate that there was serious question qua valid mandate. In order to appreciate aforesaid submission on behalf of Shri Jani, learned AAG, it would be most appropriate to reproduce the events and submissions, produced by Shri Jani, learned AAG, in verbatim as under:
CHRONOLOGY OF EVENTS Sr. Date Event Page No. No.
1. 24.04.2016 General Elections of Gandhinagar Municipal Corporation were held.
2. 26.04.2016 Result of the General Election came to be 59 published.
3. 27.04.2016 Agenda issued for the first General meeting of the Gandhinagar Municipal Corporation.Page 15 of 32
C/SCA/22388/2017 JUDGMENT
4. 06.05.2016 In the election of Mayor, Municipal Corporation, Gandhinagar, Respondent No.3 Shri Pravinbhai Patel came to be declared elected.
Shri Pravinbhai Patel got 17 Votes and petitioner Shri Shailendrasinh Bihola got 15 votes. In the said meeting election of Deputy Mayor had taken place.
Note : The term of the Mayor is 2.5 years.
5. 30.05.2016 The petitioner filed Disqualification 41-104 Petition No.12 of 2016 before the Designated Authority constituted under the Provisions of Gujarat Disqualification of Members of Local Authorities for Defection Act, 1986. Annexure-B
6. 19.08.2017 Designated Authority dismissed the 28-39 application being Disqualification Petition No.12 of 2016 and recorded the finding that there was no whip and it was not served by an authorized person.
Annexure-A
7. 12.10.2017 Petitioner filed captioned Special Civil 25-26 Application No.22388 of 2017 before this Hon'ble Court seeking to quash and set aside order dated 19.08.2017 passed in Reference application No.12 of 2016.
The petitioner prayed that Respondent No.3 be declared disqualified under Section 3 of the Gujarat Provision of Disqualification of Members of Local Authorities for Defection Act, 1986.
Prayer Clause-Para-8 A, B, C, D
8. 23.01.2018 This Hon'ble Court passed an oral order "Rule, returnable after 8 weeks. Direct Service is permitted." in the captioned Special Civil Application No.22388 of 2017.
9. 24.10.2018 Agenda came to be circulated to hold the election of Mayor, fixing the date of Page 16 of 32 C/SCA/22388/2017 JUDGMENT election on 05.11.2018.
10. 01.11.2018 The Hon'ble Court (Coram: Hon'ble Ms.Justice Sonia Gokani) passed an order.
"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".
11. 05.11.2018 Term of Deputy Mayor of 2 years and 6 months came to an end.
12. 05.11.2018 Mayor's election came to be held by show of hands. Out of 32 Councillors 31 Councillors remained present.
Respondent no.3's vote was kept in seal
cover. 30 Councillors showed their
preference for the candidates by show of
hand.
GROUNDS :
1. Subject matter of the present writ petition is the challenge to the order passed by the Designated Authority under the provisions of the Gujarat Provision of Disqualification of Members of Local Authorities for Defection Act, 1986.
2. There is neither any prayer to stay the election of mayor in the writ petition nor to keep the result in seal Page 17 of 32 C/SCA/22388/2017 JUDGMENT cover. In that view of the matter, the order passed by this Court travels beyond the subject matter of the writ petition.
3. The core issue in the writ petition is, whether Respondent no.3 has incurred disqualification and whether order passed by designated authority is in accordance with law or not.
4. That the Designated Authority has recorded that no mandate was issued. It is further held that there is no mandate in the eye of law. In the absence of any mandate, the Designated Authority has correctly held that the respondent no.3 has not committed any breach of any mandate and therefore he is not liable to be disqualified under the provisions of the Gujarat Provision of Disqualification of Members of Local Authorities for Defection Act, 1986.
The mandate annexed at page 65 of the captioned Special Civil Application No.22388 of 2017 does not bear any date or time, it also does not make any reference of any enclosure. Thus, the mandate on page 65 is not a mandate in the eye of law.
5. The present writ petition is thus confined to the limited issue of the applicability and violation of the provisions of the Gujarat Provision of Disqualification of Members of Local Authorities for Defection Act, 1986 only.
6. In the present writ petition the petitioner has not questioned the election of Mayor held on 06.05.2016, and the legality and correctness of election was never an issue by the petitioner.
The term of the Mayor came to an end on 05.11.2018.
7. Further, in view of section 19 of the Gujarat Page 18 of 32 C/SCA/22388/2017 JUDGMENT Provincial Municipal Corporation Act, 1949. Mayor's election for another 2 years and 6 months was required to be initiated and that came to be initiated by agenda on 24.10.2018 and the election came to be held on 05.11.2018.
8. In this writ petition the petitioner has not challenged the action of issuance of agenda on 24.10.2018 and holding of election on 05.11.2018. However, by virtue of order passed on 01.11.2018 in this very petition the declaration of Mayors' election is stayed which is not the subject matter of challenge in this writ petition and therefore the order dated 01.11.2018 may be vacated.
9. The Respondent no.3, Pravinbhai Dahyabhai Patel has tendered his resignation as a Councillor of Gandhinagar Municipal Corporation by addressing the letter dated 14.02.2019 to competent authority i.e. the Municipal Commissioner, Gandhinagar.
The letter of resignation was received by the Secretary, Gandhinagar Municipal Corporation on 14.02.2019. Thus, the resignation of Pravinbhai Dahyabhai Patel, respondent no.3 has come in to effect from 14.02.2019 and thus the entire issue of the defection of Shri Pravinbhai Dahyabhai Patel, respondent no.3 which is subject matter of the present writ petition is rendered infructuous and academic.
10. That under Gujarat Provisional Defection and Gujarat Provision For Disqualification of Member of Local Authorities for Defection Act, 1986 and Gujarat Provincial Municipal Corporations Act, 1949 no further disqualification is attached if it is found that a Councillor has defected from political party the scheme of Gujarat Provision For Disqualification of Member of Local Authorities for Defection Act, 1986 has its effect only during the term of Councillor. Thus, a Councillor who has incurred wroth of the provisions of the Act, can also contest the elections of the very same seat again.
Page 19 of 32C/SCA/22388/2017 JUDGMENT Thus, the entire issue as raised in the petition is academic and the petition is infructuous in view of the subsequent events.
11. That in view of the reasons set out at page 49 in order of designated authority which is impugned in the present writ petition, the order passed dismissing the Reference Application No.21 of 2016 is just and proper."
7. Learned counsel Shri Upadhyaya appearing for respondent no.3, in addition to aforesaid submissions, submitted that subsequent development in the matter may be taken a note of, as respondent no. 3 has tendered his resignation on 14.2.2019 and therefore, this petition has become infructuous.
8. In support of their contentions, learned counsels for the respondents relied upon following decisions:
(i) decision rendered in Special Civil Application No. 11378 of 2016 dtd 23.01.2017;
(ii) Decision rendered in Letters Patent Appeal No. 619 of 2016 dtd 14.07.2016;
(iii) decision in case of Shamshad Ahmad & ors. Vs. Tilak Raj Bajaj (deceased) Through Lrs. And others, reported in (2008) 9 SCC 01;
(iv) Decision in case of Authorized Officer, State Bank of Travancore & ors. Vs. Mathew K.C., reported in (2018) 3 SCC 85;
(v) Decision in case of Harjinder Singh Vs. Punjab State Warehousing Corporation, reported in (2010) 3 SCC 192;
(vi) Decision rendered in Civil Application No. 1 of 2019 in Letters Patent Appeal No. 35913 of 2018 in Special Civil Page 20 of 32 C/SCA/22388/2017 JUDGMENT Application No. 22388 of 2017 dtd 31.01.2019;
9. The counsel for the petitioner, at this stage, submitted that in fact it was unfortunate aspect of the matter that on account of inordinate delay in deciding the Application No. 12 of 2017, the respondent no.3 continued to act as Mayor and it has serious prejudice to the Principles of Democracy and cause of petition. He also submitted that in fact there was blatant disregard to the rules and procedure for functioning and holding meetings, that has resulted into giving rise to two petitions namely Special Civil Application No. 17590 of 2018 and Special Civil Application No. 18084 of 2018. Though originally said two petitions were tagged along with this petition, but as the Court issued notices in those two matters and therefore, those two matters were de-tagged by the Court. He also submitted that the result of this petition may affect the aforesaid two matters. In this matter, there is an interim order dated 1.11.2017, which he has heavily relied upon, which is reproduced as under :
"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.Page 21 of 32
C/SCA/22388/2017 JUDGMENT 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 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.
Page 22 of 32C/SCA/22388/2017 JUDGMENT
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 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."
10.The counsel for respondent submitted that as per Rule 8(3) of the Gujarat Provincial Municipal Corporation Rules, which is reproduced as under:
"8(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."
this interim order is in fact is of no avail to the respondents though in due deference to the order, the result has not been acted upon but irrespective of the vote of respondent no. 3, who has resigned, the new Page 23 of 32 C/SCA/22388/2017 JUDGMENT incumbent is required to be declared as elected on account of the vote he has polled.
11. As against this, the counsel for the respondent submitted that there was a conscious concurrence of all the concerned to decide at-least this Special Civil Application No 22388 of 2017 and accordingly, the Court had heard the parties and therefore, its result and its effect may be left to be arrived in this matter only, but no prejudice could be pleaded on account of filing of these two petitions, wherein, the Court is yet to hear said petitions on merits.
12. This Court is of the considered view that there cannot be any dispute qua the proposition of law canvassed on behalf of the petitioner qua the mandate, the duty of the Councillor, inquiry and obtain the mandate and act in accordance therewith, failing which, the incurring of disqualification, which is not depend upon a declaration but at the same time, whether those principles now could be made applicable to examine the order impugned in this petition, especially in light of the fact that respondent no. 3 has ceased to a member Councillor of the Gandhinagar Municipal Corporation. The disqualification incurred, assuming for the sake of examining without holding that, was acted upon, then also, the resultant effect would rendering the respondent no. 3 as a non- member and providing him in acting, as such but the following provisions of law, more particularly Sections 33, 34 and 35 of the Gujarat Provincial Municipal Corporations Act, 1949 reads as under:
Section 33:- Vacancy in Corporation, etc. not to invalidate its proceedings- No act or proceedings of the Corporation or of any committee or sub-committee appointed under this Act shall be questioned on account Page 24 of 32 C/SCA/22388/2017 JUDGMENT of any vacancy in its body.
Section 34:- Proceedings of Corporation, etc. not vitiated by disqualification, etc. of members thereof- 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 member of any Committee or sub-committee appointed under this Act shall be deemed to vitiate and 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:- Proceedings of meetings to be good and valid until contrary is proved- Until the contrary is proved, every meeting of the Corporation or of a Committee or sub-committee in respect of the proceeding 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.Page 25 of 32
C/SCA/22388/2017 JUDGMENT It would indicate the effect and impact upon the vacancy being available. In other words, it can well be said that the disqualification occurs on account of defection would only have effect of un-sitting the member who ceases to be a member of the House but the same would not have acting as a disqualification for seeking re-election or contesting the election afresh as and when the same arise because, disqualification is not on account of any disqualification attached to criteria of disqualification. Therefore according to us resultant effect, which only is the cessation of the membership of the Corporation. In the present case, when the respondent no 3 has resigned with effect from 14.2.2019, and its resignation has come into operation, we are unable to accept the submission of Shri Oza. This Court is under obligation to decide the matter despite the fact that resignation has already been tendered and it is operative, this would rather be called upon the Court to decide the matter, which have in fact become infructuous. The factum of resignation has rendered this petition infructuous and ultimate decision would also indicate that matter has become infructuous.
13.At this stage, Shri Oza learned counsel for the petitioner heavily emphasis upon the decision of the Apex Court reported in case of Dr. Mahechandra Prasad Singh (Supra), more particularly para-16, which reads as under :
"16. Sub-rule (1) of Rule 6 says that no reference of any question as to whether a member has become subject to disqualification under the Tenth Schedule shall be made except by a petition in relation to such member made in accordance with the provisions of the Page 26 of 32 C/SCA/22388/2017 JUDGMENT said Rule and sub-rule (6) of the same Rule provides that every petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings. The heading of Rule 7 is "Procedure". Sub- rule (1) of this Rule says that on receipt of petition under Rule 6, the Chairman shall consider whether the petition complies with the requirement of the said Rule and sub-rule (2) says that if the petition does not comply with the requirement of Rule 6, the Chairman shall dismiss the petition. These rules have been framed by the Chairman in exercise of power conferred by paragraph 8 of Tenth Schedule. The purpose and object of the Rules is to facilitate the job of the Chairman in discharging his duties and responsibilities conferred upon him by paragraph 6, namely, for resolving any dispute as to whether a member of the House has become subject to disqualification under the Tenth Schedule. The Rule being in the domain of procedure, are intended to facilitate the holding of inquiry and not to frustrate or obstruct the same by introduction of innumerable technicalities. Being subordinate legislation, the Rules cannot make any provision which may have the effect of curtailing the content and scope of the substantive provision, namely, the Tenth Schedule. There is no provision in the Tenth Schedule to the effect that until a petition which is signed and verified in the manner laid down in the CPC for verification of pleadings is made to the Chairman or the Speaker of the House, he will not get the jurisdiction to give a decision as to Page 27 of 32 C/SCA/22388/2017 JUDGMENT whether a member of the House has become subject to disqualification under the Schedule. Paragraph 6 of the Schedule does not contemplate moving of a formal petition by any person for assumption of jurisdiction by the Chairman or the Speaker of the House. The purpose of Rules 6 and 7 is only this much that the necessary facts on account of which a member of the House becomes disqualified for being a member of the House under paragraph 2, may be brought to the notice of the Chairman. There is no lis between the person moving the petition and the member of the House who is alleged to have incurred a disqualification. It is not an adversarial kind of litigation where he may be required to lead evidence. Even if he withdraws the petition it will make no difference as the duty is cast upon the Chairman or the Speaker to carry out the mandate of the constitutional provision, viz. the Tenth Schedule. The object of Rule 6 which requires that every petition shall be signed by the petitioner and verified in the manner laid down in the CPC for the verification of pleadings, is that frivolous petitions making false allegations may not be filed in order to cause harassment. It is not possible to give strict interpretation to Rules 6 and 7 otherwise the very object of the Constitution (Fifty-second Amendment) Act by which Tenth Schedule was added would be defeated. A defaulting legislator, who has otherwise incurred the disqualification under paragraph 2, would be able to get away by taking the advantage of even a slight or insignificant error in the petition and thereby asking the Chairman to dismiss Page 28 of 32 C/SCA/22388/2017 JUDGMENT the petition under sub-rule (2) of Rule 7. The validity of the Rules can be sustained only if they are held to be directory in nature as otherwise, on strict interpretation, they would be rendered ultra vires."
14. This judgment in our view is not applicable to the facts of present case, as what has been laid down in the decision is lack of lis between the person seeking declaration of disqualification and one who has incurred disqualification, withdrawal of the petition by the person, who is seeking declaration of disqualification, is not an adversarial kind of litigation where he may be required to lead evidence. It is further observed in the said decision that even if he withdraws the petition, it will make no difference as a duty is cast upon the Chairman or the Speaker to carryout the mandate of the constitutional provision viz. The Tenth Schedule. In the instant case, the facts are indicative that cessation has been brought about by resignation itself. Therefore, this Court is of the opinion that the Court need not embark upon the decision of the authority, else it would going to pronounce upon the infructuous matter, which would not be appropriate as, in case, if the pronouncement is there, which will not be capable of being issuing any writ, is futility, as in the present case, the respondent no. 3 has resigned and therefore, in view of decisions i.e. (i) in case of Jastha Venkateswara Rao Vs. Oggu Chinna Basava Reddy and others, reported in 1984 (supp) Supreme Court Cases 398, (ii) in case of P.H. Pandian Vs. P. Veldurai & Another, reported in (2013) 14 SCC 685; (iii) in case of Mayawati Vs. Markandeya Chand, reported in 1998 (7) SCC 517; this Court should not dwell upon the merits of the petition and submissions made by learned counsel for the petitioner, as the petition has become infructuous Page 29 of 32 C/SCA/22388/2017 JUDGMENT
15.Shri Oza, learned counsel for the petitioner also placed heavy reliance upon para- 9.4 of the decision rendered in Special Civil Application No. 16135 of 2016, which reads as under :
"9.4: Now so far as the submission on behalf of the petitioners and on behalf of respondent no. 2 - original applicant that as now respondent no.2
- original applicant - complainant proposes to withdraw and /or withdraws his complaint / original application the impugned order be quashed and set aside and /or the matter may be remanded to the designated Officer as requested by the learned Advocate appearing on behalf of respondent no.2 is concerned, at the outset, it is required to be noted that after the impugned order is passed on the original application /complaint made by respondent no.2 and the petitioners are declared disqualified, thereafter it will not be open for respondent no.2 to withdraw the complaint /original application, and therefore, on the ground that now subsequently and after the impugned is order passed by the designated Officer disqualifying the petitioner under Section 6 of the Act, 1986, the impugned order is not required to be set aside on the ground that now respondent no.2 - original complainant /applicant proposes and /or withdraws the original application. At this stage, the decision of the Hon'ble Supreme Court in the case of Dr. Mahachandra Prasad Singh (Supra) is required to be referred to. In the said decision, Hon'ble Supreme Court has specifically observed and held that in a proceeding of disqualification on the ground of defection, there is no lis between the person moving the petition and the member of the House, who is alleged to have incurred a disqualification. It is submitted that it is no adversarial kind of litigation where he may be required to lead evidence. It is further observed that even if he withdraws the petition it will make no difference as a duty is cast upon the Chairman or the Speaker to Page 30 of 32 C/SCA/22388/2017 JUDGMENT carryout the mandate of the constitutional provision viz the Tenth Schedule. Under the circumstances on the ground that now respondent no.2 - original complainant - original applicant proposes to withdraw and /or withdraws the original application /complaint, the impugned order passed by the designated Officer disqualifying the petitioners, Members of the Panchayat, under Section 6 of he Act, 1986 is not required to be set aside."
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 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.
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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.
(S.R.BRAHMBHATT, J) (A.G.URAIZEE, J) P.S. JOSHI Page 32 of 32