Gujarat High Court
Timirkumar Tarangbhai Jayswal vs The Designated Authority on 5 July, 2019
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt, A. P. Thaker
C/SCA/11488/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11488 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 11670 of 2019
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TIMIRKUMAR TARANGBHAI JAYSWAL
Versus
THE DESIGNATED AUTHORITY
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Appearance:
MR ANSHIN DESAI SENIOR ADVOCATE WITH MS VIDITA D
JAYSWAL(6730) for the Petitioner
MR UTKARASH SHARMA AGP IN SCA NO.11488 AND MS ASMITA
PAREL AGP IN SCA 11670 OF 2019 for the Respondent No. 1
MR TEJAS K. MOTWANI FOR MR JIGNESHKUMAR M
NAYAK(8558) for the Respondent No. 2
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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE DR.JUSTICE A. P. THAKER
Date : 05/07/2019
COMMON ORAL ORDER
(PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT) Leave to join Prant Adhikari, Mamlatdar Office, Opp. Kapleshwar shopping, Kalol.
The affidavit tendered on behalf of respondent no.2 is taken on record.
1. In both these petitions the petitioners have assailed the order dated 15.06.2019, whereunder the petitioners have been declared to have incurred disqualification under the provision of Gujarat Provision For Disqualification Of Members Of Local Authorities For Defection Act, 1986 (hereinafter referred to as the 'Defection Act' for the sake of brevity).
Page 1 of 11 Downloaded on : Wed Jul 10 05:21:12 IST 2019 C/SCA/11488/2019 ORDER2. The petitioners filed Special Civil Application No. 11488 of 2019 on 02.07.2018 and Special Civil Application No. 11670 of 2019 on 04.07.2019 along therewith a draft amendment came to be filed in Special Civil Application No.11488 of 2019, and as per roster the prayer mentioned in the amendment qua election was not falling, the learned single Judge passed the order in Special Civil Application No.11488 of 2019, which read as under:
"Draft amendment is allowed. To be carried out forthwith.
Since by way of draft amendment,
election proceedings are challenged, the
Registry is hereby directed to list this matter tomorrow before the appropriate Court as per roster."
This petition i.e. Special Civil Application No. 11670 of 2019 contains the following prayers and accordingly it is permitted to be circulated.
A. This Honourable Court be pleased to admit and allow this petition.
B. This Honourable Court be pleased to issue a writ in the nature of mandamus or any other appropriate writ, order or direction by quashing and setting aside the impugned order dated 15.06.2019 passed by the Ld. Designated Officer, Gujarat State in Dispute Application No.11 of 2018.
Page 2 of 11 Downloaded on : Wed Jul 10 05:21:12 IST 2019 C/SCA/11488/2019 ORDERC. YOUR LORDSHIPS may be pleased to issue a writ of Mandamus and/or any other appropriate writ, order or direction in nature of mandamus quashing and setting aside the agenda notice dated 03.07.2019 at Annexure F to this petition and the election proceeding thereof.
D. Pending, admission and final disposal of this petition YOUR LORDSHIPS be pleased to stay the impugned order dated 15.06.2019 passed by the Ld. Designated Officer, Gujarat State in Dispute Application No.11 of 2018 and further be pleased to permit and allow the Petitioners to continue as members in the Kalol Municipality.
E. Pending admission, hearing and final disposal of this petition YOUR LORDSHIPS be pleased to say the implementation, operation and execution of agenda notice dated 03.07.2019 at Annexure F to this petition in the interest of justice.
F. This Hon'ble Court be pleased to grant any other and further relief/s as may be deemed fit in the facts and circumstances of the case.
3. The petitioners have been facing the allegations of defying the mandate in the election of President and Vice- President of Kalol Municipality held on 11th June, 2018 and Page 3 of 11 Downloaded on : Wed Jul 10 05:21:12 IST 2019 C/SCA/11488/2019 ORDER therefore, a petition was filed before the competent authority being Dispute Application No.11 of 2018 in which the Designated Authority rendered its decision on 31 st January, 2019 holding that the petitioners incurred disqualification under the Disqualification Act, as they defied the mandate in the election held on 11th June, 2018. This order was subject matter of challenge in the Writ Petition being Special Civil Application No.3358 of 2019. The said petition was allowed vide order dated 11th March 2019 by this Court, operative part whereof is read as under:
11. It is true that under Rule - 8 of the Gujarat Provision for Disqualification Of Members of Local Authorities for Defection Rules, 1987, the Designated Officer is required to deal with the matter within a period of two months from the date of filing the defection application. However, in the present case, the matter has been adjourned time and again only on the ground that the Designated Officer was preoccupied with other work. Therefore, I found that the impugned order dated 31.01.2019 has been passed without giving an opportunity of hearing to the petitioners and there is breach of principles of natural justices and therefore, the present petition requires consideration. Hence, following order:
[i] The impugned order dated 31.01.2019 passed by the respondent No. 1 - Designated Officer is hereby quashed and set aside.
[ii] The matter remanded to the Designated Officer for fresh consideration.Page 4 of 11 Downloaded on : Wed Jul 10 05:21:12 IST 2019 C/SCA/11488/2019 ORDER
[iii] All the parties are directed to file their reply within a period of one week from today.
[iv] The respondent No. 1 - Designated Officer shall decide the matter in accordance with law and as expeditiously as possible preferably within a period of two months as per Rule - 8 of the Gujarat Provision for Disqualification Of Members of Local Authorities for Defection Rules, 1987.
[v] All the parties are also directed to cooperate for expeditious disposal of the matter.
12. It is hereby made clear that this Court has not gone into the merits of the case.
13. Rule made absolute. Direct service is permitted.:
Thus, after recording that the Designated Authority failed in passing reasoned order, the matter was remanded back to the concerned authority. The concerned Designated Authority has once again passed an order on 15th June, 2019 recording that the petitioners incurred disqualification on account of their defiance of the Whip in the election of President and Vice-President held on 11th June, 2018. This order, as stated hereinabove, have been assailed in the present petitions.
4. The learned counsel appearing for the petitioners invited Court's attention to page no.87 to indicate that the Page 5 of 11 Downloaded on : Wed Jul 10 05:21:12 IST 2019 C/SCA/11488/2019 ORDER said communication was an authority letter as the District President is required to be authorized by the party president to issue mandate as the elections to the post of President and Vice-President in Kalol Municipality was slated on 11th June, 2018.
5. Learned counsel for the petitioners invited Court's attention to the contentions raised in the reply to the application for seeking their disqualification and the petition to indicate that so called Whip had not been issued nor had the same been served, though it is projected as if the Whip is issued and it was served and the petitioners refused to endorse the receipt or knowledge thereof. The documents placed on record indicate that the receipt and service does not contain signatures of the present petitioners.
6. The counsel for the petitioners also contended that the Designated Authority unfortunately could not appreciate this aspect and in a slipshod manner dealt with the important issues and recorded its conclusion without there being any basis or material to arrive at such conclusions.
7. The counsel for the petitioners led heavy emphasis upon the minutes and the official documents thereabout of 11th June 2018 by inviting the Court's attention to pages 94 and 96 and submitted that both these documents would not inspire any confidence qua either the existence of mandate or due service thereof or knowledge with the members. The Designated Authority unfortunately had recorded its finding without there being any material to indicate that the mandate existed and it was duly served upon all the concerned.
Page 6 of 11 Downloaded on : Wed Jul 10 05:21:12 IST 2019 C/SCA/11488/2019 ORDER8. Learned counsel appearing for the petitioners relied upon the following decisions in support of his submissions qua the basic requirement for issuance of mandate, method of service and requirement of ascertaining as to whether there was a mandate or not? In other words, duty cast upon the members and the Presiding Officer of the meeting.
(i) In case of Shobhaben Shantilal Kala Vs. M.V. Joshi , rendered in Special Civil Application No.4234 of 2011;
(ii) In case of Sunil Narsinh Hathila Vs. Designated Authority, rendered Special Civil Application No.4188 of 2011, dated 22.04.2011;
(iii) In case of Katara Bhaveshbhai Babubhai Vs. Designated Authority Under the Gujarat Provision For Disqualification Of Members And Ors., rendered in Letters Petent Appeal No.811 of 2011 dated 29.03.2012;
9. Learned Assistant Government Pleaders invited Court's attention to the findings recorded in the order and submitted that the findings as on date clearly indicate that the petitioners have knowledge and they deliberately flouted the mandate. The technical aspects of recording or absence of clear recording may not be of any avail to the petitioners and therefore this Court may not interfere with the orders impugned.
10. Learned counsel Shri Tejas K. Motwani with Mr. Jignesh Nayak for the respondent no.2, appearing on caveat, invited Court's attention to the impugned order and submitted Page 7 of 11 Downloaded on : Wed Jul 10 05:21:12 IST 2019 C/SCA/11488/2019 ORDER that the findings recorded by the authority will have to be accepted by the Court on its face value as the authority has recorded its finding on the basis of the material placed before the authority and the pleadings of the parties. The said findings, therefore, would clearly indicate that there was existence of mandate, there was a knowledge of mandate and there was a defense of the petitioners. This Court under Article 226 of the Constitution of India, may not interfere therewith, as the petitioners have been held to be disqualified by the competent authority and granting of any interim relief also may amount to allowing this petition at this stage itself. He submitted that the provision of Defection Act indicates that the knowledge on the part of the members participating in the election procedure is sufficient and is not dependent upon the service of the mandate. Therefore, when the facts of the case clearly indicate that there was a clear mandate and knowledge thereof to the petitioners, the omission to establish service may not be considered to be fatal as to interfere with the order impugned. Besides, there is a clear finding that the petitioners refused to sign the receipt of the mandate, is clearly indicative of the fact that the petitioners did have a knowledge that there existed a mandate which they were under obligation to collect as per provision of Rule 10 of the Rules.
11. The Court is of the view that the provision of the Defection Act and the Rules made thereunder needs to be strictly complied with before fastening an elected representative with stigma of disqualification. The duty cast upon the authority to record its finding based upon the material, which is called to be a tangible material, and in absence thereof the authority would not be justified in Page 8 of 11 Downloaded on : Wed Jul 10 05:21:12 IST 2019 C/SCA/11488/2019 ORDER permitting itself to be swayed and governed by only the pleadings. The pleadings are required to be based upon the material in the form of evidence or affidavits etc. In the instant case, we are of the prima facie view that the Designated Authority - respondent no.1 has not recorded the service or knowledge based upon any material evidence, as nothing has been produced by the applicant before the authority to establish that there was an attempt to serve the mandate, or has the designated authority adverted to the material which weighed with him for arriving to such conclusion. It seems that the authority has merely reproduced the pleadings of the parties. This in our prima facie view is nothing but an omission to record its reason based upon the findings and material.
12. The provision of Rule 10, reproduced hereinbelow would clearly indicate that what is the duty cast upon the Presiding Officer of the meeting in which the mandate is to be obeyed and complied with.
The Gujarat Provision For Disqualification Of Members Of Local Authorities For Defection Rules, 1987 "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 Page 9 of 11 Downloaded on : Wed Jul 10 05:21:12 IST 2019 C/SCA/11488/2019 ORDER 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 councillor of Municipal Corporation or the Member of Municipality or a member of the Panchayat."
(emphasis supplied) Thus, the emphasized portion of this Rule does not require any further elaboration, as it clearly cast duty upon the Presiding Officer to verify the existence of mandate and its circulation to the mandate. The Designated Authority clearly recorded its finding that there is no mandate or minutization thereof, as could be seen from pages 94 and 96. Assuming for the sake of examining without holding that there was a mandate and it was served, still the Presiding officer of the meeting dated 11th June 2018 was not absolved of its duty to clearly recording in the minutes of the meeting in compliance with the provision of Rule 10 of the Rules. When the Designated Authority has clearly recorded that the mandate factum has not been minutized, then it was unfortunate that the said fact after recording, has not been appreciated or rather perfunctorily brushed aside by the authority.
13. We are of the view that the balance of convenience is of paramount considerations for granting interim relief. In the instant case they prayed for interim relief, if not granted Page 10 of 11 Downloaded on : Wed Jul 10 05:21:12 IST 2019 C/SCA/11488/2019 ORDER would amount to preventing a duly elected member from discharging his duty and if the elections are not stayed would amount to permitting irretrievable and irreversible situation to take place. In both these eventualities, the balance of convenience would tilt in favour of the petitioners, hence, we are convenience for granting of interim relief. Therefore, we are of the view that the petitions are required to be admitted. Hence, Rule returnable on 26.08.2019.
14. In the meantime and till the final disposal of the petitions there is interim relief in terms of prayer 9(D) & 9(E) of Special Civil Application No.11670 of 2019 and prayer 9(C) & 9(CC) of Special Civil Application No. 11488 of 2019.
Direct service permitted today.
Office is directed to place copy of this order in Special Civil Application No.11670 of 2019.
(S.R.BRAHMBHATT, J.) (A. P. THAKER, J.) Pankaj Page 11 of 11 Downloaded on : Wed Jul 10 05:21:12 IST 2019