Gujarat High Court
Jakir Mohammed Memon Athaniya vs A K Rakesh - I A S & on 17 February, 2014
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
C/SCA/15059/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 15059 of 2013
With
SPECIAL CIVIL APPLICATION NO. 15060 of 2013
TO
SPECIAL CIVIL APPLICATION NO. 15064 of 2013
With
CIVIL APPLICATION NO. 10860 of 2013
In
SPECIAL CIVIL APPLICATION NO. 15064 of 2013
With
CIVIL APPLICATION NO. 10862 of 2013
In
SPECIAL CIVIL APPLICATION NO. 15062 of 2013
TO
CIVIL APPLICATION NO. 10865 of 2013
In
SPECIAL CIVIL APPLICATION NO. 15060 of 2013
With
CIVIL APPLICATION NO. 10868 of 2013
In
SPECIAL CIVIL APPLICATION NO. 15063 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
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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 ?
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C/SCA/15059/2013 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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JAKIR MOHAMMED MEMON ATHANIYA....Petitioner
Versus
A K RAKESH - I A S & 1....Respondents
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Appearance:
MR BM MANGUKIYA, ADVOCATE for the Petitioner.
MS BELA A PRAJAPATI, ADVOCATE for the Petitioner.
DS AFF.NOT FILED (N) for the Respondent(s) No. 2
MR. P.P. BANAJI, LD. AGP for the Respondent No. 1
MR. DEVANG VYAS, ADVOCATE (On caveat) for private Respondents.
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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
Date : 17/02/2014
&
18/02/2014
COMMON ORAL JUDGMENT
1. In this group of petitions the petitioner is common and respondent no.1 is also common, who has rendered the order dated 23/9/2013 in various applications, preferred by the petitioner invoking Section 6 of The Gujarat Provision For Disqualification Of Members Of Local Authorities For Defection Rules, 1987 (herein after referred to as the 'Defection Act' for the sake of brevity). Hence all these petitions along with connected civil applications were heard together and are being disposed of by this common judgment & order.
2. The facts in brief leading to filing this group of petitions as could be gathered from memo of the petitions could be described as under, so Page 2 of 22 C/SCA/15059/2013 JUDGMENT as to appreciate the controversy / rival contentions of the advocates of the parties.
The petitioner happened to be President of Banaskantha District Congress Committee. The Danta Taluka Panchayat is consisting of 21 members and in the last election which were held on 17/2/2013, 12 members were elected who were set up by the Indian National Congress (herein after referred to as 'INC' for the sake of brevity), 8 members were set up by Bharatiya Janta Party (herein after referred to as 'BJP' for the sake of brevity), and one member was an independent member. Thus out of 21 members, 12 members belonged to INC and 8 belonged to BJP, one being an independent. On 13/3/2013 in the meeting of electing President and Vice President the present petitioner was elected as President of Panchayat and one Shri Nanabhai Hekdabhai Parmar was elected as Vice President. It is pertinent to note at this stage that the petitioner is also nominated as President and leader of Taluka Panchayat of Congress party as well.
3. On 18/4/2013 'No Confidence Motion' came to be moved by the members of Danta Taluka Panchayat consisting of BJP members as well as six members of INC who were named as opponent in the application filed against on the ground that they have incurred disqualifications under the 'Defection Act'. This motion was moved on 18/4/2013. The concerned officer on receipt of no confidence motion addressed communication on 26/4/2013 for calling of meeting within fifteen days from the date of receipt of motion of no confidence. In fact the petitioner who also happened to be President of District unit of INC issued notices on 25/4/2013 to the six members who were signatory to the no confidence motion to show cause as to why action should not be taken against them, as they could not have validly signed no confidence motion, which amounted to giving up membership of the party voluntarily and Page 3 of 22 C/SCA/15059/2013 JUDGMENT they were urged therefore to withdraw their signature from the motion of no confidence within twenty four hours. The petitioner perceived the action of signing of no confidence motion as voluntarily giving up membership of INC by those who had signed no confidence motion against validly elected President i.e. the petitioner himself. Petitioner therefore moved an application under Section 6 of the Defection Act before the respondent no.1 which came to be registered as per the number mentioned in the memo of the application. Thus all the six members who were signatory to the no confidence motion were made opponent in each of the application invoking provision of Section 3 r/w Section 6 for seeking declaration qua them being disqualified on account of their voluntarily giving up their membership of INC. During pendency of those applications petitioner moved this Court by way of Special Civil Application No. 8831 of 2013 wherein on 10/5/2013 while issuing notice and making it returnable on 17/6/2013 made order therein by observing that the meeting of Danta Taluka Panchayat scheduled on 13/5/2013 may go ahead, however the vote cast by respondent nos. 5 to 10 were ordered not to be counted and ordered to be kept in separate sealed cover till further orders. The meeting as scheduled on 13/5/2013 for discussing no confidence motion against the petitioner was thus conducted and the vote cast by respondent no. 5 to 10 as referred to in the order dated 10/5/2013 in the matter of Special Civil Application No. 8831 of 2013 were kept in the sealed cover. An application came to be moved being Civil Application (For vacating interim relief) No. 5628 of 2013 before this Court which came to be dismissed by this Court on 16/5/2013 on the ground that, allowing civil application would amount to reviewing the order passed by this Court on 10/5/2013. The concerned civil applicant whose civil application for vacating interim relief had been rejected by this Court on 16/5/2013, moved Letters Patent Appeal No. 772 of 2013 in Civil Application No. 5628 of 2013 in Special Civil Application No. 8831 of 2013. It is required to be noted at this stage that in the meantime Page 4 of 22 C/SCA/15059/2013 JUDGMENT the concerned authority i.e. competent authority held against the petitioner and rejected those applications which were initially filed on the ground of voluntarily abandoning membership by the opponent nos. 5 to 10 merely on their act of signing of 'no confidence motion' vide order dated 25/7/2013 which was subject matter of challenge by way of petition being Special Civil Application No. 12991 of 2013 with Special Civil Application No. 12992 of 2013 to Special Civil Application No. 12996 of 2013 which came to be disposed of by this Court vide order dated 30/8/2013 and the matters came to be remanded to the competent authority on the ground that the order was passed in breach of principle of natural justice and on that ground alone the applications were remanded and the order was quashed. Accordingly all these applications came to be heard again wherein the petitioner filed rejoinder, along therewith placed on record documents in the form of affidavit of the President of GPCC filed in such some other proceedings for relying upon the averments made there under that the Regional President of INC (GPCC) has authorized various persons named thereunder and President of all Districts & Taluka Panchayats to be entitled to issue whip on his behalf as well as the party, and the whip dated 7/5/2013 along with postal acknowledgment receipts indicating that the opponents' family members had acknowledged receipt on receiving the same and after hearing the parties, respondent no.1 the competent authority passed an order on 23/9/2013 which is subject matter of challenge in this group of petitions. It would not be out of place to mention here that in pending Letters Patent Appeal these facts were brought on record and accordingly the matter came to be disposed of, keeping all the contentions open as could be seen from the order dated 27/9/2013 passed by the Division Bench.
4. Learned advocate appearing for the petitioner placed heavy reliance upon the decision of the Apex Court in case of Rajendra Singh Rana And Others Vs. Swami Prasad Maurya And Others, reported in Page 5 of 22 C/SCA/15059/2013 JUDGMENT (2007) 4 SCC 270, in support of his contention that if the conduct of the members against whom the complaint is filed is shown to be voluntarily giving up membership of political party, then, that itself is sufficient to incur disqualification so as to disentitle that member and the subsequent proceedings will have to be viewed only in light thereof.
5. Learned advocate appearing for the petitioner while elaborating the aforesaid submission contended that in the instant case the fact remains to be noted by all that, in Danta Taluka Panchayat the INC had 12 elected members, and it was thus being in majority out of total 21 members entitled to elect its own President and Vice President which in fact were elected as mentioned herein above and, therefore, when as many as 6 members who are respondents in these petitions just to join hands with the 8 members of opposition i.e. BJP in bringing no confidence motion which was moved on 18/4/2013, this act itself was sufficient to disqualify the 6 members to be members of Danta Taluka Panchayat as they were set up by INC and therefore they could not have joined opposition party in their motion against the President who was elected and was acting as a member of INC. The notice of motion was an attempt to usurp the power & opposition from the INC in favour of other than INC members and in fact that has resulted into subsequent election of the President who belonged to BJP and thus, the very first act of signing of notice of motion by the respondents amounted to their voluntarily giving up membership of the party so as to attract the first part of provision of Section 3 of Defection Act and, therefore the subsequent fine question with regard to issuance of mandate or its validity or the authority etc., should not be of any consequence.
6. Learned advocate appearing for the petitioner placed heavy reliance upon the observations of the Apex Court in case of Rajinder Singh Rana (supra) made in para nos. 34, 35, 36, 45, 46, 47 and 48 and it Page 6 of 22 C/SCA/15059/2013 JUDGMENT was contended that there in the case before the Supreme Court, the question was as to whether the members of a party when visited the Governor with a request to call upon leader of the other side to form government itself was treated as an act of voluntarily giving up membership itself. In the instant case also the private respondents signing of no confidence motion and moving it on 18/4/2013 in itself amounted to their voluntarily giving up membership of INC as they joined hands with BJP and others in bringing about fall of duly elected persons belonged to INC.
7. Learned advocate for the petitioner therefore time and again repeatedly contended that action of signing of no confidence motion by those defaulting members was sufficient for the authority to act upon in accordance with provision of Section 3 r/w provision of 6 of the Defection Act and therefore there was no need to thereafter going into fine question qua issuance of mandate, authority of mandate issuing person etc.
8. Learned advocate appearing for the petitioner also invited this Court's attention to the decision rendered by the Apex Court in case of Kihoto Hollohan Vs. Zachillhu And Others, reported in 1992 Supp (2) SCC 651, and contended that the fine submission canvassed on behalf of those who challenged the provision of Defection Act qua democratic principle, their obligations and voting etc. have been given fitting answer by the Supreme Court, by saying that those have seems to be attractive but they shall be contrary to the principle embedded in the constitutional amendment in form of provision of Constitutional Amendment No. 52. The Defection Law is obviously promulgated with a view to describe every member of changing loyalties by those unscrupulous element vying for way to the seat of power shredding all these scrupulous to the wind and loyalties to the party on which symbol they got themselves elected.
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9. Learned advocate appearing for the petitioner invited this Court's attention to the orders passed by this Court in earlier petition, and the Letters Patent Appeal and the order in which the matter was remanded which came to be passed in group of Special Civil Application No. 12199 of 2013 with Special Civil Application No. 12992 of 2013 to 12997 of 2013 on 30/8/2013 and submitted that the matter came to be remanded only on account of non observance of principle of natural justice and therefore it would not be possible to submit on the part of respondents to say that the Court meant only hearing without any production of additional documents or evidence.
10. Learned advocate appearing for the petitioner invited this Court's attention to the notice dated 25/4/2013 issued to their defecting members informing them about the consequence of their not withdrawing signature from the notice of no confidence. Learned advocate for the petitioner thereafter invited this Court's attention to the rejoinder affidavit filed before the authorities after the matter was remanded and the documents annexed thereto in the form of written mandate dated 7/5/2013 as well as the affidavit sworn by the Regional President of INC filed, though in some other proceedings but to indicate there from that the District President of Panchayats have power and authority to issue mandate on members of party as well as on his own, in addition to the names of the persons mentioned there under. Learned advocate for the petitioner submitted that even if the fact qua private respondents incurring disqualification on their merely signing no confidence motion on 18/4/2013, the factum of issuance of mandate and the postal acknowledgment dues produced on record would go to show that the mandate was validly issued and in defiance thereof private respondents cast their vote in favour of no confidence motion so as to bring about fall of the duly elected President and Vice President of the INC who were Page 8 of 22 C/SCA/15059/2013 JUDGMENT hitherto holding position on account of they being duly elected.
11. These factors would be sufficient to establish that the private respondents did incur the disqualification as envisaged under Section 3 of the Defection Act, and therefore it was duty cast upon the respondent no.1 competent authority to declare as such. Respondent no.1 has conveniently omitted any reference to the written mandate dated 7/5/2013 as well as the postal acknowledgment receipts produced on record. Thus these factors would also go to show that the order impugned deserve to be quashed and set aside.
12. Learned advocate appearing for the petitioner thereafter contended that the private respondents have taken up wholly untenable stand qua written mandate purported to have been issued on 7/5/2013 by merely denying its receipt, though they have kept silent qua the acknowledgment receipt which bear signatures of their family members, which indicate that the receipt was being signed on behalf of the addressee. Therefore in this count also the private respondent say qua lack of mandate is of no avail.
13. Learned advocate appearing for the petitioner thereafter contended that respondents contention qua lack of authority in issuing mandate in petitioner is also of no avail, as the documentary evidences in form of affidavit affirmed by Regional President of INC contains specific averment in respect of Danta Taluka Panchayat also, and that should have been treated as sufficient proof of authority which unfortunately has not been properly dealt with by the respondent no.1 , i.e. competent authority and therefore on that count also the order impugned deserves to be quashed and set aside.
14. Learned advocate appearing for the private respondents contended Page 9 of 22 C/SCA/15059/2013 JUDGMENT that the decision cited at the Bar on behalf of the petitioner are of no avail in as much as the fact that the facts of the present case are required to be appreciated before the principle laid down in those cases are applied. Learned advocate for the private respondents further contended that the memo of the first application which was made even before the date of no confidence motion discussions are looked into, then, it would become clear therefrom that the so called mandate of 7/5/2013 had never been pressed into service nor had the same been referred to, that would be sufficient to indicate that there existed none.
15. Learned advocate appearing for the private respondents thereafter invited this Court's attention to the showcause notice dated 25/4/2013 and submitted that this was the sole basis for inviting declaration from the authority qua the private respondents conduct and therefore, this could not have been classified to be a mandate so as to bring about disqualification in respect of the private respondents.
16. Learned advocate appearing for the private respondents submitted that the applications in the first instance were filed on 1/5/2013 and therefore, possibly the written mandate which is said to have been issued on 7/5/2013 might not have been placed on record but those applications were decided on 25/7/2013 and at that time nothing prevented the petitioner and or his counsel to place on record the mandate which is said to have been issued on 7/5/2013. Those applications were heard on six different occasions from 14/5/2013, 28/5/2013, 4/6/2013, 25/6/2013, 2/7/2013 and 16/7/2013. When all these occasions were available to the petitioner and or his counsel to bring on record the so called mandate purported to have been issued on 7/5/2013, and when in fact it has not been placed on record, this raises serious doubt qua the veracity of the mandate and its contents and therefore, on the strength thereof it was not open to the petitioner to seek any declaration of disqualification of the Page 10 of 22 C/SCA/15059/2013 JUDGMENT elected members.
17. Learned advocate appearing for the private respondents contended that the private respondents were visited with show cause notice dated 25/4/2013 specifically calling upon them to show cause as to why they should not be expelled as they appended their signature to no confidence motion and absence of any further proceedings thereafter would clearly indicate that the political party to which they belonged did never intend to support the so called mandate nor did it view the so called defection to be defection so as to bring in the disqualification as prescribed under Section 3 (6) of the Defection Act.
18. Learned advocate invited this Court's attention to the averments made on oath in affidavit in reply on para no. 25(d) at page169 to indicate that private respondents have not been expelled and therefore as on date also they are members of INC.
19. Learned advocate appearing for the private respondents invited this Court's attention to the averments made in the reply before the competent authority and submitted that the private respondents categorically opposed the subsequent placement of the so called written mandate as on the earlier occasion despite ample opportunity available to them, petitioner chosen not to produce the same and when the matter was decided against them and it was being heard on remand, at that time only the factum of mandate have been placed on record. This also would clearly show that the competent authority has taken correct view and come to the conclusion that the authority issuing mandate did not have authority nor was there any mandate as claimed so as to incur disqualification.
20. Shri Banaji, learned AGP contended that the order passed by the Page 11 of 22 C/SCA/15059/2013 JUDGMENT competent authority is just and proper, based upon the material available to him and, therefore, this Court may not interfere there with. Learned AGP submitted that the factum of non-issuance of whip as recorded by the competent authority will have to be appreciated in view of attendant circumstances and therefore, if one looks at the order from that angle, then, it would surely be not required to be interfered with. Learned AGP further submitted that the factum of disobedience of the whip is required to be proved by the petitioner and in absence of any such material, including mandate, the order impugned may not be interfered with and he supported the order impugned in its totality.
21. The Court has heard learned advocates for the parties, perused the documents and annexures appended to the petitions. Few indisputable aspects emerging therefrom needs to be unequivocally mentioned here under so as to appreciate the controversy in its true perspective, namely:
(a) The Danta Taluka Panchayat was consisting of 21 members. Out of these 21 members, 12 members were belonging to INC, 8 members were belonging to BJP and one was an independent member. Out of these 21 members on account of majority, present petitioner and one more came to be elected as President and Vice President respectively in the first meeting of Taluka Panchayat as could be seen from the proceedings.
(b) The motion of 'no confidence' moved on 18/4/2013 was moved by as many as 14 members, out of 21 members, in which 6 members signatories were the members who were set up by INC and they thus joined moving of no confidence motion along with other members belonged to BJP i.e. major opposition party. Thus no confidence motion was against the President as well as Vice President who were elected and who belonged to INC.Page 12 of 22
C/SCA/15059/2013 JUDGMENT
(c) The motion of no confidence was in fact duly moved in a prescribed form as per Rule-20 of the Rules and was duly signed which made it incumbent upon the concerned to call and convene the meeting for deliberating thereon.
(d) The present petitioner appears to have moved six applications as mentioned herein above on 1/5/2013 on the ground that the act of signing no confidence motion by private respondents amounted to their giving up voluntarily the membership of the party on whose symbol they had elected and occupied the position. This submission was essentially based upon the observations of the Supreme Court in case of Rajendra Singh Rana (supra). It is pertinent to note at this stage that this application contained 3 documents namely result of election, notice of no confidence motion and show cause notice issued by petitioner to respondents calling upon them to show cause as to why they should not be visited with dire consequences in case if they do not withdraw their signature from the no confident motion. Except these 3 documents there was no other document or even an averment in respect of the mandate as naturally it could not have been there as the written mandate came to be issued only on 7/5/2013.
(e) The competent authority did not grant any interim relief in those applications and therefore writ petition in form of Special Civil Application No. 8831 of 2013 came to be filed, wherein also this Court, as it is stated herein above, did not choose to either stay the meeting or restrain the respondents therein from casting their vote. However the Court directed vide its order dated 10/5/2013 that the vote casts by those 6 members may be kept in a sealed cover until further orders.
(f) On 13/5/2013 the meeting of Taluka Panchayat was held and as it is recorded no confidence motion came to be passed against both the Page 13 of 22 C/SCA/15059/2013 JUDGMENT office bearers, namely President as well as Vice President.
(g) This gave rise to civil application being Civil Application No. 5628 of 2013 in Special Civil Application No. 8831 of 2013 for seeking appropriate direction for counting those votes and acting there upon which came to be rejected by this Court vide order dated 16/5/2013, which came to be assailed in Letters Patent Appeal No. 772 of 2013 and other allied matters. In the meantime the competent authority rendered its decision on 25/7/2013 rejecting the six applications which order was challenged by way of petitions being Special Civil Application No. 12991 of 2013 to 12996 of 2013, wherein as it is observed herein above, this Court on 30/8/2013 passed an order observing that there was breach of principle of natural justice and therefore remanded the matter to the authority for deciding it afresh.
(h) The petitioner put in rejoinder along therewith for the first time placed on record two documents, namely the written mandate dated 7/5/2013 and affidavit sworn by Regional President of INC filed in some other proceedings of like nature being Application No. 6 of 2013 for the purpose of pointing out that Regional President had authorized the persons named therein as well as the President of respective District Panchayats to issue mandate on behalf of himself as well as the party.
(i) Plain reading of that affidavit makes it clear that the deponent of the affidavit has stated that there are two persons in the State of Gujarat whom he had delegated powers to issue mandate in respect of constitution of committee etc., so far as local elections and bodies are concerned, and in addition thereto he has authorized all the local Presidents of District Panchayats to issue mandate in meetings on behalf of the party and the Presidents themselves. The petitioner had along with the written mandate produced postal acknowledgments receipt indicating Page 14 of 22 C/SCA/15059/2013 JUDGMENT that the mandate was received on behalf of the respondents by their family members.
(j) Private respondents have merely denied that the mandate had not been received by them. However, at this stage it is required to be noted that private respondents did not categorically averred as to whether the signature appended to postal acknowledgment dues were of their family members or not. In other words it can be said that the private respondents did not choose to go to that far and rested themselves by mentioning merely that the mandate had not been received by them as postal acknowledgment dues did not bear their signature. Thus the fact remains to be noted that postal acknowledgment receipts do not bear signature of the present private respondents but petitioner's clear averment qua the mandate being received by family members on their behalf as it is evident from signature on acknowledgment receipts which have not been denied by present private respondents.
(k) The respondent no.1 competent authority has proceeded on the footing that there was no mandate and that in absence of mandate the show cause notice which is said to be mandate could not take place of the mandate as envisaged in Section 3 and breach thereof would bring about disqualification.
(l) The respondent no.1 competent authority did not advert to the aspect of written mandate dated 7/5/2013 nor did he advert to the postal acknowledgment receipts and this fact needs to be borne-in-mind so as to appreciate the contention in respect of the challenge to the order in question.
(m) A close perusal of order impugned dated 23/9/2013 would clearly indicate that the respondent competent authority was aware and Page 15 of 22 C/SCA/15059/2013 JUDGMENT appraised of the details of developments that took place after the application came to be filed. The precise narration prior to reasoning portion in the order unequivocally indicate that the competent authority was aware and was called upon to take in to consideration the written mandate, casting of votes, postal acknowledgment receipts etc. but as could be seen from reasoning portion in the order the competent authority did not advert to those aspects at all. The competent authority appears to have proceeded on the basis as if the competent authority was deciding the applications as they stood prior to passing of the no confidence motion on 13/5/2013. Had it not been so the employment of phraseology "at this stage the application is premature" would have no scope of it being there in the order. Therefore it is required to be noted that the reasoning portion of the order do not indicate anywhere any discussion and or consideration of the aspects which figured in the rejoinder and sur- rejoinder which were brought on record after the matter was remanded by this Court to the authority for its reconsideration after affording opportunity to all the concerned.
22. In the aforesaid backdrop of almost indisputable aspects, this Court has to take into consideration the developments as they took place in respect of the challenge in question. The fact remains to be noted that the Danta Taluka Panchayat was consisting of 21 members, out of which 12 members originally were elected on the symbol of INC, 8 persons were elected on the symbol of BJP and one member was an independent. Thus on account of the majority of INC members in the Panchayat two persons belonged to INC namely present petitioner and another one Shri Parmar were elected to mann the position of President and Vice President respectively. The disgruntled members, within one month from they taking over as President and Vice President, moved no confidence motion which came to be signed by as many as 14 members which include the Page 16 of 22 C/SCA/15059/2013 JUDGMENT present six private respondents in this group of petitions. There is one more fact which is required to be noted that this no confidence motion was moved on 18/4/2013, there is one more no confidence motion individually moved by one lady member who also belonged originally to INC. The said no confidence motion moved by single member is elaborately discussed by the competent authority to be incompetent in terms of provision of Section 70 of the Panchayat Act. In my view that was absolutely a discussion which did not affect the challenge in any manner and to say the least that was a discussion which ought not to have been in any manner required to be gone into for deciding the controversy in question.
23. The no confidence motion was signed by 14 members that included present six private respondents and hence the plea was raised that the six members who signed no confidence motion joining hands with the opposition party members were required to be declared to have voluntarily given up their membership of INC. Based upon this plea, it seems that the original applications were moved before the competent authority and in the interregnum period the development indicated that there was a recourse taken to filing of petition before this Court also, and the passing of the order by the authority on those applications in the first instance of 25/7/2013. A question arises as to when there was an event of passing of 'no confidence motion' as scheduled on 13/5/2013 and when there was already an order of this Court, may be an interim order, for not counting those members vote and keeping those members vote in a sealed cover, was the competent authority not required to take those factors into consideration while passing an order on 25/7/2013, where under the authority appears to have rejected the applications in the first instance. But said order of the competent authority passed on 25/7/2013 was challenged in this Court by way of writ petition wherein this Court vide its order dated 30/8/2013 remanded the matters back to the Page 17 of 22 C/SCA/15059/2013 JUDGMENT competent authority. Therefore when this was the order, the competent authority was expected to act in accordance with law and afford full opportunity of being heard to all the concerned. Pursuant to this order when the matters were being heard as it is clear from the record, the petitioner brought on record three factors, namely the issuance of mandate in writing on 7/5/2013, its receipt by Presiding Officer on the date of meeting i.e. 13/5/2013 and its dispatch to all the members concerned by registered postal acknowledgment and the receipts signed by family members of the private respondents. This attempt of filing rejoinder was sought to be resisted by the private respondents, opponents before the authority, on a ground that the said facts which have been brought on record may not be taken on record as it would amount to enlarging the scope of hearing. This has been discussed at length by the competent authority, but unfortunately, without recording his own reasoning for accepting or rejecting the same, though the subsequent portion of the order clearly indicate that the authority chose to accept those submissions without recording clearly his reason for accepting the submission as the authority did not take into consideration the written mandate the postal acknowledgment receipts and the affidavit filed and sworn by regional President of GPCC indicating that the persons who were authorized to issue mandate in this behalf. Therefore, this Court is of the considered view that the order passed by the competent authority cannot be sustained in eye of law.
24. The Court is of the considered view that the competent authority ought to have taken into consideration the subsequent developments which were brought on record on behalf of the petitioner which were clearly indicative of the fact that there was a written mandate in terms of letter dated 7/5/2013, there is no reasoning as to why and in what manner said letter cannot be treated as mandate, nor has there been any reasoning coming forward in form in the order of the competent authority as to how Page 18 of 22 C/SCA/15059/2013 JUDGMENT the author of the mandate should be treated as having no authority. Unfortunately, the competent authority has taken the showcause notice only to be a mandate and rejected the same being not a mandate in his view. In other words the written mandate which has been brought on record has clearly been avoided to be discussed by the authority for which this Court cannot sustain the order as it is on the face of it requires to be quashed and set aside.
25. The mandate is not discussed nor has the authority discussed the contention raised on behalf of the petitioner that he was authorized to issue mandate which was flowing from the affidavit of the President of GPCC which had also been brought on record. The competent authority was also required to be go into facts as to whether the competent authority has issued the mandate or not. Unfortunately, when the mandate is not discussed the authority has avoided to discuss even the competence of the issuing authority also. The remarks in respect of delegate cannot sub delegate is in my view of no avail in favour of the private respondents. The authority was specifically called upon to decide as to whether there was defection in terms of Section 3 and unfortunately in the order the authority has missed this point and therefore the order of the authority is not sustainable in eye of law.
26. This bring this Court to consider as to whether in such a situation remand is warranted or without remanding the matters this Court may decide the issues which have been raised. The decisions cited at the Bar in case of Rajendra Singh Rana (supra) and others would weigh in favour of deciding the matter right at this stage without it being further remanded to the authority as the pleading of the parties which have come on record would clearly indicate that so far as the written mandate is concerned the private respondents also could not deny its existence. They merely attempted to indicate that the mandate had not been served upon Page 19 of 22 C/SCA/15059/2013 JUDGMENT them. As against this, the advocate for the petitioner has successfully established that the mandate was issued by the competent authority whose competence had not been challenged in any manner by producing any other documents. The document which has been produced in support of the competence of the authority indicate that the President, GPCC had authorized the President of District Panchayat to issue mandate and petitioner being a District Head of the political party was competent to issue mandate. Therefore, the Court is satisfied qua issuance of mandate. It is also required to be noted that the private respondents have not set up any case qua mandate not being existing at all, as learned advocate for the petitioner unequivocally indicated the signature of the Presiding Officer of the meeting which came to be appended on the written mandate, which indicate that the written mandate was within the knowledge of the Presiding Officer who has appended his signature on the mandate which has come on record, that was said to have been signed at 10.45 a.m. in the morning of that day when the meeting was slated i.e. 13/5/2013. Now, in light of unequivocal provisions of Rule 10 of the Defection Rules it becomes clear that there was duty cast upon private respondents to assert whether that was proper or not. Learned advocate for the private respondents unfortunately could to point out any attempt or even remote attempt on their part to ascertain and therefore in my view the burden cast upon by the statutory rules have not been discharged which factor also would weigh with the Court against private respondents plea in respect of lack of mandate.
27. The Court is unable to accept the submission canvassed on behalf of the private respondents that the mandate could not be said to have been served as the postal acknowledgment receipt bears no signature of the private respondents. This submission is required to be rejected as the provision of Rule-10 of the Rules clearly provides for individual members to obtain specific instructions before participating in the Page 20 of 22 C/SCA/15059/2013 JUDGMENT meeting qua the mandate or its existence. As it is recorded herein above the Presiding Officer of the meeting which deliberated upon no confidence motion on 13/5/2013 has appended his signature on the mandate at 10.45 of the day, that itself is sufficient to indicate that the existence of mandate could not have been challenged successfully by any one. When there existed a mandate then, it was duty cast upon all the concerned, including the present six private respondents to verify its existence and, therefore, in the instant case, they have failed in discharging this burden which cast upon them under provision of Rule-10 of the Defection Rules. Therefore their plea with regard to non-existence of mandate cannot be accepted.
28. The Court is of the view that ordinarily in a case like this, the Court has to remand the matter, but in the instant case as the record indicated, on earlier occasion also the matter was remanded vide order dated 30/8/2013 but it did not yield any substantive result so as to indicate a proper exercise of mind in light of the existing law so as to obviate any further proceedings. Therefore the remand would have been an empty formality and this Court when has all the material before it, then, it was appropriate to decide the matter and hence the remand was not considered appropriate. It is reiterated at the cost of repetition that the mandatory provision for attracting disqualifications have been clearly indicated and, therefore, this Court has no hesitation in coming to the conclusion that the six private respondents rendered themselves disqualified by casting their vote in favour of 'no confidence motion' despite there existing a clear mandate in form of written mandate dated 7/5/2013. The private respondents have, therefore, incurred disqualifications from the date they cast their vote in defiance of the mandate.
29. In view of above discussions all the petitions are allowed. The Page 21 of 22 C/SCA/15059/2013 JUDGMENT order of the competent authority is hereby quashed and set aside. Rule made absolute in each of the petitions. Civil applications are disposed of without there being separate orders passed since the main petitions are allowed. However there shall be no order as to costs. Registry to maintain copy of this order in each of the petitions.
30. In the present case on 10/10/2013 while issuing rule this Court (Coram Mr. Justice Anant S. Dave) passed following order:
"Heard Mr. B.M. Mangukiya, learned advocate for the petitioner.
Rule.
Learned advocate for private respondent and learned AGPs waive service of rule on behalf of respective respondents.
In the meanwhile, any decision taken by the authorities is subject to the further order that may be passed by this Court and/or final outcome of the petitions."
Thus the present private respondents / members have continued till date, and therefore, though there is no request for staying operation of this order, this Court of its own accord is of the view that, it would be fit and appropriate to give effect to this order from 24/2/2014. Orders accordingly.
Direct service permitted.
(S.R.BRAHMBHATT, J.) vgn Page 22 of 22