Gujarat High Court
Madhuben vs State on 23 February, 2011
Author: M.D.Shah
Bench: Md Shah
Gujarat High Court Case Information System
Print
SCA/741/2011 18/ 18 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 741 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE MD SHAH
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
MADHUBEN
BHIKHABHAI ROKAD & 4 - Petitioner(s)
Versus
STATE
OF GUJARAT THROUGH BHAGYESH KHA (IAS) & 1 - Respondent(s)
=========================================================
Appearance
:
MR
SB VAKIL WITH MR KV SHELAT
for
Petitioner(s) : 1 - 5
MS JIRGA JHAVERI, AGP for Respondent(s) :
1
MR BM MANGUKIYA WITH MR M.IQBALASHAIKH for Respondent(s) :
2
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 23/02/2011
ORAL
JUDGMENT
This petition under Articles 226 and 227 of the Constitution of India is directed against order dated 11-1-2011 passed in Application No.58 of 2010 by the Designated Authority under the Gujarat Provisions for Disqualification of Members of Local Authorities for Defection Act, 1986 (hereinafter referred to as 'the Act' for short) whereby the petitioners were disqualified from being members of Jasdan Nagarpalika.
The petitioners were elected members of Jasdan Nagarpalika in general elections held on 17-2-2008. Thereafter, the petitioner No.1 was elected as a President of the Jasdan Nagarpalika. The respondent No.2 then filed Application No.58 of 2010 before the Designated Authority under the Act seeking to disqualify the petitioners on the ground that although the Congress Party issued a mandate/whip, the petitioner No.1 filed nomination for the post of President and the petitioner No.2 voted against the alleged official candidate while the petitioner Nos.3 to 5 abstained in the proceedings. The Designated authority, therefore, issued a show cause notice to the petitioners. The petitioners filed their reply to application filed by the respondent No.2 inter alia contending that there was no whip issued by the Congress Party. They also raised preliminary objections contending that as the application was in violation of Rules 3(6) and Sub-rules (3), 4(a)(b), (5) and (6) of Rule 6 of Gujarat Provisions for Disqualification of Members of Local Authorities for Defection Rules (hereinafter referred to as 'the Rules' for short), the application requires to be dismissed. According to the petitioners, there was no whip issued by the Congress Party and even if there was a whip, it was required to be served upon the members of that party as also the Deputy Collector, who is Ex-officio of Nagarpalika. However, no such whip was served either to the petitioners or the Deputy Collector. The petitioners also contented that in order to disqualify them, some postal certificates were got by the respondent No.2 to show that petitioners have been served with the whip. The petitioners therefore sought to cross-examine the respondent No.2 and the District President of Congress Party, who allegedly issued the whip. However, the Designated Authority vide order dated 11-1-2011 disqualified the petitioners from being members of Jasdan Nagarpalika. Hence, the present petition by the petitioners.
An affidavit-in-reply was filed by the respondent No.2 inter alia contending that the petitioners have suppressed the correct fact of filing of application for cross-examination of witnesses after the hearing was completed which, in fact, was required to be submitted during the course of hearing. No request at any point of time was made during hearing to cross-examine the witness and hence, it was contended that said application has been filed to create false defense and hence, the petitioners are guilty of supressio vari and suggestio falsi. It was further contended that the petitioners made a statement suggesting that they wanted to cross-examine the respondent No.2 and witness but same was denied. It was further contended that the whip was sent Under Certificate of Posting to all the councilors including the petitioners being the accepted mode of service. It was therefore urged that the order passed by the Designated Authority is legal and proper and hence, the present petition requires to be dismissed.
An affidavit-in-rejoinder has been filed by the petitioner No.1 denying the contents of reply filed by the respondent No.2 stating inter alia that the Designated Authority in the order dated 28-12-2010 took on record the reply filed by the petitioners sworn on 25-12-2010 disputing the existence of any valid mandate as contemplated under the law and pointing out the alleged communication by certificate of posting as forged after her election as President of Nagarpalika. It was further stated that the petitioners also produced information given by the Deputy Collector on 27-12-2010 about non-existence of alleged mandate. According to her, she made an application on 3-1-2011 in person and also through her advocate for cross examination and the Designated Authority called for the file on 3-1-2011 and accepted the application and informed that next date would be communicated. However, without hearing the application dated 3-1-2011, matter was decided and impugned order dated 11-1-2011 was passed and hence, it was submitted that there was no suppression of facts by the petitioners. It was also submitted that a serious prejudice has been caused to the petitioners by not considering the communication of Deputy Collector dated 27-12-2010 which is a material evidence regarding the minutes of the meeting and mandatory information as contemplated under Rule 10A of the Rules. It was also submitted that principles of natural justice and fundamental right to hold the public office have been violated and, therefore, the impugned order is erroneous and hence, requested to quash and set aside the same.
Heard learned Senior Counsel, Mr.S.B.Vakil, with learned advocate, Mr.K.V.Shelat, for the petitioners, learned AGP, Ms.Jirga Jhaveri, for the respondent No.1 and learned advocate, Mr.B.M.Mangukiya for the respondent No.2.
Learned Senior Counsel, Mr.S.B.Vakil, submitted that the petitioners were duly elected members of Jasdan Nagarpalika and the petitioner No.1 was appointed as President of said Nagarpalika. According to him, once they were elected by the people as members through a democratic process by exercise of franchise, they cannot be disqualified without following all due procedures of law. However, they were disqualified from the said posts as they allegedly acted against the whip issued by the Party which, according to him, cannot be permitted as no whip was received by them and hence, by disqualifying them, the very purpose of democracy is defeated. It is therefore prayed that the impugned order be quashed and set aside.
Drawing attention of this Court towards the provisions of Rule 3, 7(7) and 10A of the Rules, Mr.Vakil submitted that serious breach of principles of natural justice has been committed by the Designated Authority by not allowing the petitioners to cross-examine the witnesses. He further submitted that there is no evidence on record to show that the mandate was sent to the petitioners as the communication allegedly sent by UPC to the petitioners is undated and hence, it is a got up one. Moreover, it is also not shown as to whether communication was served to other Councilors or not and if served, the petitioners have every right to cross-examine the witnesses.
In this connection, he relied on a decision of the Supreme Court reported in 1994(0) GLHEL-SC p. 24475 in the case of S.C.Girotra Vs. United Commercial Bank. He also relied on another decision reported in 2009(3) G.L.H. 385 in the case of Devabhai Parbatbhai Avadia and Ors. Vs. Competent Authority appointed under Anti Defection Act & another wherein it has been held in paras 11 which reads as under:
"11.
Having thus heard learned advocates for the parties, we find that Rule 7 of the Defection Rules provides for procedure to be followed by the Designated Officer while dealing with subject of disqualification of members of Panchayat, Municipality, etc. Sub-rule(7) thereof reads as follows :
"(7) The procedure which shall be followed by the Chief Secretary or designated officer for determining any question and the procedure which shall be followed by the officer for the purpose of making a preliminary inquiry under sub-rule(4) shall be consistent with the rules of natural justice and neither the chief Secretary or designated officer shall come to any findings that a councillor or member has become subject to disqualification under the Act without affording a reasonable opportunity to such councillor or member to represent his case and to be heard in person."
He further relied on para 17 of the said judgment which reads thus:
"17.
Before concluding, we would like to clarify few aspects :
a) We make it clear that even in a disqualification proceeding, if the evidence of any witness rendered either on oath or on affidavit, is sought to be relied upon by the Designated Officer to pass any order adverse to a member, such member would have the right to seek cross examination of such a witness.
b) In Civil Application No. 3968/2009 one of the prayers is to set aside disqualification order dated 2.4.2009. No amendment in the Letters Patent Appeal to this effect has been sought or granted. Learned advocates for the parties have also not advanced any arguments. In this order, we have not examined the legality of the same and leave it to the appellants to seek their remedy in accordance with law.
c) Validity of Rule 10A of the Defection Rules is not in challenge in the present appeal.
d) Learned Single Judge in his impugned judgement in paragraph-25 made following observation :
"25.
It is also required to be observed here that the petitioners are branded as defectors. They were elected on the ticket of a particular political party. They have changed their side subsequently. Morally and even legally to some extent, if the allegations against them are proved, they are not entitled to continue as members of Morbi Nagar Palika. The rule of morality requires that they should have resigned and sought the fresh mandate of the people. In any case, the persons who are not coming before the Court with clean hands or with sound moral background will have no right to claim equity or to invoke equitable jurisdiction of this Court."
We are of the opinion that that at an interlocutory stage, when disqualification proceedings were still pending before the Designated Officer, such observations ought not to have been made which would adversely affect the rights of the parties. These observations are therefore, set aside.
He further submitted that copy of the Constitution of the Congress Committee is not produced on record and hence, the petitioners could not know as to what are the rules and regulations of the Congress Committee and who has the right to issue the mandate and to whom it is to be served. He further submitted that there is no resolution of the District Congress Samiti produced either on record or before this Court to show who is the official candidate of the Congress Party. No one has been examined to clarify this fact. In this regard, he relied on a decision reported in (2000)8 Supreme Court Cases p.82 in the case of Sadashiv H.Patil Vs. Vithal D.Teke and others wherein it has been held as under in para 15:
"15.
In Civil Appeal Nos.6266-6268/98 no rules or regulations of Janta Aghadi are shown to have been filed with the Collector. The record does not show that any such rules or regulations exist. Had they been there an effort could have been made to find out authorisation to issue whip having been provided therein. During the course of hearing we asked the learned counsel for the appellant to show any resolution of Janta Aghadi authorising the signatories of the whip to issue the whip. No such resolution was filed before the Collector or the High Court and not even shown to us. The contents of the whip do not also contain any recital spelling out the existence of any such authorisation which also goes to show that there was no such authorisation given. In the absence of proof of the signatories of the whip having been authorised by the Janta Aghadi to issue the whip the violation thereof would not attract the applicability of Section 3(1)(b) of the Act. May be that the party, Aghadi or front had resolved to sponsor a particular persons candidature at the election. Acting contrary to such resolution, howsoever strongly worded, may render its member liable to disciplinary proceedings at the party level. But to incur disqualification under the Act there must be a direction issued and such direction must be either by the party, Aghadi or front to which the Councillor proceeded against belongs or be by any person or authority authorised in this behalf. Mere resolution is not a substitute for direction. On this single ground alone the judgment of the High Court deserves to be maintained."
Learned Senior Counsel, Mr. Vakil, also submitted that the dispute is between the present petitioners and the Congress Party for which, Congress Party can take appropriate steps against them but by disqualifying the petitioners who are elected by the people, the very basic principle of democracy is frustrated.
In view of the above, since all these aspects have not been considered by the Designated Authority, it is prayed that the impugned order passed by the Designated Authority requires to be quashed and set aside.
Learned advocate, Mr.B.M.Mangukiya, for the respondent No.2 submitted what is contended in the affidavit-in-reply filed by the respondent No.2. Still, however, he submitted that in pursuance of issuance of notice dated 6-10-2010 issued by the Designated Authority, hearing has been completed on 28-12-2010 and no application has been filed to cross-examine the witnesses during the course of hearing, however, to create false evidence, application has been submitted by the petitioners on 3-1-2011 i.e. after the matter has been kept for orders which should not be permitted. He also relied on the decision cited by learned Senior Counsel, Mr.S.B.Vakil, in Devabhai Parbatbhai Avadia (supra) wherein in para 22, it was held by this Court as under:
"22.
Having heard the learned advocates appearing for the parties and having considered the submissions made by Mr.Pahwa and having applied the ratio laid down by the Courts in the above cited judgments, the Court is of the view that none of the grounds raised by Mr.Pahwa has any substance or merits so as to require this Court to show any indulgence in the impugned order passed by the learned Designated Authority denying an opportunity to cross-examine the respondent No.3. The main argument canvassed by Mr.Pahwa is that the right to cross-examine is an integral part of the principle of natural justice and violation of the principle of natural justice would certainly confer a jurisdiction to this Court under Articles 226 and 227 of the Constitution of India to entertain the petition even at the interlocutory stage. So far as this argument is concerned, the Court is of the view that there is no absolute proposition that right to cross-examination would form part of a principle of natural justice. It always depends upon the facts and circumstances of each case. One can claim this right in a situation where the evidence is collected behind the back of person aggrieved by and such evidence is used against such person and decision is based on such evidence. This right can also be claimed when a person has entered into a witness box. He has given his evidence on oath and yet right to cross-examination is denied to the other side. Here, in the present case none of these circumstances is present. The respondent No.3 has filed an application. That application is duly supported by an affidavit. All evidence, documents etc, are attached with this application. Entire set of this application as well as documents is given to the petitioners. They have filed their reply to the said application. They are also allowed to produce their own documents disputing the facts stated and averments made in such application. The respondent No.1 has still not formed any opinion. The respondent No.3 has also not entered into a witness box. Despite this petition, the petitioners have moved an application asking for cross-examination of the respondent No.3. If such request was not acceded to by the respondent No.1 it cannot be said that it is in violation of principle of natural justice, nor can it be said that the order passed by the respondent No.1 is a nullity or it is non est at law. "
He also submitted that the petitioner No.1 has taken support of Bharathiya Janata Party and hence, mandate issued by the Congress Party was sent to her and other petitioners Under Certificate of Posting. He further submitted that Rule 10A requires the Members to verify from the party as to whether the whip has been actually issued or not. She has failed to verify from the party and hence, she has not been permitted to cross-examine the witnesses. According to him, mandate has been issued by the authorized person of the Congress Party and it is seen that the petitioners are not coming with the clean hands and hence, the petition should be dismissed on this ground alone. He relied on the case of S.P.Chengalvarayu Naidu(dead) by Lrs. Vs. Jagannath (Dead) by Lrs. And Others reported in (1994)1 SCC page 1 wherein in para 6 it has been observed by the Apex Court as under:
"6.
The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the court. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. Jagannath was working as a clerk with Chunilal Sowcar.He purchased the property in the court auction on behalf of Chunilal Sowcar. He had, on his own volition, executed the registered release deed (Ex. B-15) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decretal amount to his master Chunilal Sowcar.Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Non-production and even non-mentioning of the release deed at the trial is tantamount to playing fraud on the court. We do not agree with the observations of the High Court that the appellants-defendants could have easily produced the certified registered copy of Ex. B-15 and non-suited the plaintiff. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party."
Taking this Court towards Rule 10A of the Rules, he submitted that Rule 10A has been framed to see that councillors and members cannot take dishonest defense of non-service of whip and take benefit of breach thereof.
Learned AGP, Ms.Jirga Jhaveri, supported the submissions made by learned advocate for the respondent No.2.
Taking into consideration the rival submissions of the parties, it is necessary to go through relevant provisions of the Act and the Rules. Sec.3 of the Act deals with disqualification on ground of defection which reads as under:
"3. Disqualification on ground of defection (1) Subject to the provisions of sections 4 and 5, a councillor or a member belonging to any political party shall be disqualified for being a councillor or a member, -
(a) if he has voluntarily given up his membership of such political party, or
(b) if he votes or abstains 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 and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention."
Sec.7(7) of the Rules stipulates procedure to be adopted y the Designated Officer in pursuance of disqualification of members of Panchayat, Municipality, etc. which reads thus:
"(7) The procedure which shall be followed by the Chief Secretary or designated officer for determining any question and the procedure which shall be followed by the officer for the purpose of making a preliminary inquiry under sub-rule(4) shall be consistent with the rules of natural justice and neither the chief Secretary or designated officer shall come to any findings that a councillor or member has become subject to disqualification under the Act without affording a reasonable opportunity to such councillor or member to represent his case and to be heard in person."
Rule 10A of the Rules reads as under:
"10. A Councillor of Municipal Corporation or the Municipality or a member of the Panchayat who is elected on the symbol of political party shall while attending any meeting of Municipal Corporation or the Municipality or a Panchayat ensure whether any mandate is issued by such political party and if any mandate is issued by such political party, he shall obtain such mandate from such political party, or by any person or authority authorized by it. The Chair-person of any meeting of Municipal Corporation or the Municipality or a Panchayat shall verify that such a mandate has been issued by the political party, and circulated to the councilor of Municipal Corporation or the Member of Municipality or a member of the Panchayat."
In light of the above provisions of the Act and the Rules, it has to be seen whether all the procedures as provided under the Act and the Rules have been followed by the Designated Authority while disqualifying the petitioners or not. In the present case, in pursuance of election of the petitioners as members of Jasdan Nagarpalika on 17-2-2008 and consequent election of petitioner No.1 as President, the respondent No.2 filed Application No.58 of 2010 before the Designated Authority under the Act seeking to disqualify the petitioners for acting against the mandate issued by the Congress Party and, therefore, a notice was issued to the petitioners by the Designated Authority to show cause as to why they should not be disqualified from being members. The petitioners filed their reply in response to the said show cause notice and ultimately, impugned order was passed by the Designated Authority disqualifying the petitioners as members.
Looking to the facts of the present case, it appears that all the relevant procedures have been properly followed by the Designated Authority and no breach thereof appears to have been committed by the Designated Authority. Simultaneously, duty has been cast upon the petitioner No.1 as well as other petitioners under Rule 10A of the Rules to verify from the Party to which they belong whether any mandate or whip has been actually issued by the party or not. It has been held by this Court in 2009(3) G.L.R. page 2739 in the case of Padhya Kaminiben Sanatkumar & others Vs. Manishkumar Sureshchandra Acharya & others in para 16.3 as under:
"16.3 As per Rule 10, it is the duty cast upon a member of the Panchayat or councillor, as the case may be, to receive mandate issued by such original political party and also to ascertain by obtaining a copy thereof. Therefore, primarily and basically, burden is on the alleged defaulter and unless and until such burden is discharged, a rebuttable presumption would arise that the original political party had issued a mandate and such defaulter acted contrary to it or defied the same."
In the facts of the present case, it is clear that the petitioners have not verified from their party as to whether any whip/mandate has been actually issued by the authorized person of the party or not. Having failed to verify the genuineness of mandate having issued by the Congress Party, the petitioners would not be able to content that whip has not been actually issued and that the UPC produced on record is a got up one and hence, they should be permitted to cross examine the witnesses. However, a rebuttable presumption has to be drawn to the contrary. It has been laid down by this Court in para 15 in Devabhai Parbatbhai Avadia (supra)'s case as under:
"12.
Under sub-rule(7) of Rule 7 thus the Designated Officer has to follow the procedure which is consistent with the principles of natural justice and to ensure that the finding that a member has become subject to disqualification is not reached without affording a reasonable opportunity to such councilor or member to represent his case and to be heard in person. It cannot be disputed that if evidence of any person either on oath or rendered through a statement on affidavit is to be relied upon to render a member disqualified, such person must be permitted to be cross examined by the concerned member. Any departure from this basic requirement would certainly be in violation of principles of natural justice. Therefore, the view of the Designated Officer that Rule 7(7) does not envisage cross examination of the applicant cannot be approved. However, when we are dealing with the proceedings for disqualification under the Defection Rules, whether the applicant upon whose petition the disqualification proceedings have been initiated should be permitted to be cross examined and whether the member concerned should be permitted to lead his oral evidence, must depend on facts of each case and no rigid or uniform formula which would apply in every case can be laid down. "
As per the above law, no rigid or uniform formula can be applied in every case and it would depend on facts of each case and since facts of the present case did not necessitate, the Designated Authority did not allow the petitioners to cross-examine the respondent No.2 and the District President of Congress Party, who issued the whip. This Court is of the opinion that the petitioners ought to have verified from the Congress Party but they failed and hence, Designated Authority was right in disallowing the claim for cross-examination of the witnesses. Apart from that, the petitioners also did not seek to cross-examine other members of Nagarpalika to inquire about this fact. They also failed to file affidavits of other members to indicate whether any whip issued by the Congress Party was received by them or not.
A submission has been made by learned Senior Counsel for the petitioners that as the dispute is between the petitioners and the Congress Party, the Congress Party can take action against them. As discussed above, in this case, it is prima facie established that the petitioners were elected as members by the people on the symbol of Congress Party as Congress Party candidates. However, they made breach of the mandate of the Congress Party which clearly shows that only with ulterior motive to come in power, they acted against the mandate of the party and, therefore, there is no substance in the said submission.
As regards production of Constitution of Congress Party, it appears that same is not produced on record. However, the petitioners could have asked for the same from the Congress Party and would have known about the rules and regulations of the Congress Party.
As regards the submission that there is no resolution of the District Congress Samiti produced either on record or before this Court to show who is the official candidate of the Congress Party, it is to be noted that when the Congress Party has given the mandate, it was within the knowledge of the petitioners that the respondent No.2 had filed the nomination as a candidate of Congress Party with the support of the members of Congress Party. However, the petitioners did not care to verify from the respondent No.2 also as to whether she had filed as per the mandate of the Congress Party or at her own will and the present petitioner No.1 filed nomination form for the post of President with the support of opposition party i.e. Bharatiya Janata Party, which speaks volume about the conduct of the present petitioner No.1 that it was only with an ulterior motive to come in power, she had filed nomination against the mandate of Congress Party. Apart from that, if Congress Party had not issued any mandate, then it would have pardoned the petitioners. However, as per the records, the Party did not pardon them which also clearly shows that the petitioner No.1 had not filed nomination for the post of President as per the whip of the Congress Party and other petitioners voted against the whip of Congress Party otherwise the Congress Party could have pardon them as they being existing members of Congress Party.
In view of the above, a presumption has to be drawn that whip was issued by the Congress Party and the petitioners elected from the banner of Congress Party acted against the said whip issued by the authorised person of the party enabling the Designated Authority to disqualify them from being members of Jasdan Nagarpalika on 11-1-2011 and all the required provisions of the Act and the Rules have been properly followed by the Designated Authority while passing the impugned order. In view of the above, petitioners would not be entitled to any benefit out of the decisions relied on by their learned Senior Counsel.
Thus, this Court is of the opinion that all the procedures as required under the Act and Rules have been followed by the Designated Authority before disqualifying the petitioners and rightly passed the impugned order. No illegality or irregularity has been committed by the Designated Authority in passing the said impugned order warranting interference by this Court in a petition filed under Articles 226 and 227 of the Constitution of India.
In view of the above, this petition is dismissed. Interim relief stands vacated. Notice is discharged.
(M.D.SHAH,J.) radhan Top