VINUBHAI DEVJIBHAI YADAV Vs. BHIKHABHAI KURAJIBHAI SADADIYA

JUDGEMENT

(1.) By this application under Article 226 of the Constitution of India, the petitioner prays for issuance of a Writ of Mandamus or any other appropriate Writ quashing and setting aside the order dtd. 27th December, 1995, passed by the Additional Chief Secretary, Government of Gujarat declaring the petitioner disqualified under the provisions of the Gujarat Provision for Disqualifications of Members of Local Authorities for Defection Act, 1986 (for short "the Act").

(2.) The facts which led the petitioner to prefer this petition may in brief be stated. A notification dt.2/5/1995 for holding the election of Jasdan Taluka Panchayat on 11/6/1995 was issued. The petitioner filed his nomination form for the Kanpar-Pipaliya Constituency, stating that he was to contest the election under the aegis of the Indian National Congress. He, therefore, prayed for the allotment of a symbol namely "Palm" which is the party's symbol for the purpose of contesting the election. Other six persons had also filed their nomination forms stating that they were set up as the candidates by the Indian National Congress. Later-on, within the time prescribed they all withdrew their candidature qua the said Constituency. No other candidate also remained in the battle. The petitioner, who remained the only contesting member, was declared elected uncontested by the respondent No.3, the Returning Officer, under Rule 22 of the Gujarat Panchayat Election Rules, 1994. After the election was over and other candidates were declared elected, the first meeting of the elected members of the Panchayat for the election of the President and Vice President was held on 14th July, 1995. In that meeting, the petitioner voted in favour of the candidates set up by the Bhartiya Janata Party (B.J.P.) for the posts of the President and Vice President. The respondent No.1, therefore, under Rule 6 of the Gujarat Provision for disqualification of members of Local Authorities for Defection Rules, 1987 (for short "the Rules) filed the application No.10 of 1995 before the Additional Chief Secretary and designated officer under the Act, alleging that when the petitioner was elected under the aegis of the Indian National Congress, it was not just and legal for him to vote in favour of the candidate set up by the Bhartiya Janata Party. He had, thereby disregarding the whip given by the Indian National Congress, made himself, becoming the defector, disqualified for being continued as the member of the Panchayat.

(3.) On being served with the notice, the petitioner appeared before the Additional Chief Secretary to the Government of Gujarat, Social Welfare Department, and in defence put-forth his case. According to him he was in fact not set up as the candidate by the Indian National Congress though he wanted to be so. When he was declared elected, he was treated to be the independent candidate and was also elected, as the independent candidate belonging to no political party. He was, therefore, free to vote in favour of the candidate who according to him was in all respects fit for the posts of President and Vice President. He was not bound to follow the whip of the Indian National Congress. He had not, therefore, defected, and committed the wrong as alleged. The provisions of the Act, therefore, could not be invoked against him. The application filed against him being devoid of merits was liable to be rejected etc.