DEVABHAI PARBATBHAI AVADIA Vs. P D WAGHELA

JUDGEMENT

(1.) THIS Court issued Rule on the petition on 24/8/2007. Mr. Sunit Shah, Ld. GP waived service of rule for respondents nos. . land 2 and Mr. A. R. Thakkar, learned advocate waived service of rule for respondents nos. 3 to 6. At the request of the learned advocates for the parties and looking to the urgency, the petition was : taken up for final hearing on 24/8/207 itself. The hearing got concluded on 29/8/ 2007. Thereafter, the petition has been adjourned to 03/09/2007 for pronouncement of the judgment. Now it is being disposed of by this CAV judgment.

(2.) THE petitioners herein seek to challenge the proceedings initiated against them under the provisions of The Gujarat provision for Disqualification of Members of Local Authorities for Defection Act, 1986 [hereinafter referred to as 'the Act'] and The Gujarat Provision for disqualification of Members of Local authorities for Defection Rules. 1987 [hereinafter referred to as 'the Rules'] as also The Gujarat Provision for disqualification of Members of Local authorities for Defection (Amendment)Rules, 2007 [hereinafter referred to as 'the amendment Rules']. The proceedings have been initiated against the petitioners by issuing notice dated 18/7/2007 by the designated Officer intimating the petitioners that despite the mandate or direction having been issued by one Shri arvindbhai Kalyanjibhai belonging to bharatiya Janta Party [hereinafter referred to as 'bjp'] for not casting the vote against the party's direction in the meeting scheduled to be held on 2/7/2007. the petitioners had casted votes against the direction in the extraordinary general meeting of the municipality for electing the president and thereby they had committed breach of the mandate. It is stated in the notice that Shri Arvindbhai and other members have filed petition for disqualifying the present petitioners as members of the Municipality, hence, if they had anything to say in response to the said petition they should file it in writing on or before 14/8/2007 and if they intended to make personal representation, they should remain present at 11. 30 a m on 21/8/2007 either in person or through any advocate. The said notice has been issued under the provisions of the Act.

(3.) THE record of the petition shows that respondents nos. 3 to 6 have filed petition purporting to be under the provisions of rule 6 of the Rules against the present petitioners stating that the President of morbi Nagar Palika, namely Shri pradipbhai Vala, who was elected as member of the BJP, had tendered his resignation and therefore, a meeting was convened on 02/07/2007 at 12. 00 noon in the common hall of the Nagar Palika for holding the election of the President. The meeting was convened under the chairmanship of the Deputy Collector, morbi. It is stated in the said petition that respondents nos. 3 and 4 are the members of Municipality elected under the banner of bjp: whereas respondents nos. 5 and 6 are the President and the Secretary of the BJP of Morbi City. It is stated that on 30/6/ 2007 meeting of the councillors, who got elected on BJP ticket and symbol was convened to decide that the BJP should make one of its councillors to contest the post of President and other councillors of the BJP to support him. In pursuance of the said decision, a direction was later on issued by the President and the Secretary to all the councillors belonging to BJP to vote for councillor Narsinhbhai Vastabhai dabhi. It is further stated that on coming to know about the direction, the present petitioners who had already surreptitiously joined hands with the opposite party, namely Congress, did not accept the mandate and when efforts were made to convey it on mobile phone, they switched off their handsets. Thus, they deliberately did not accept the mandate. It is further stated that under the provisions of the Act it was the duty of the petitioners to ascertain whether there was any mandate from the party, but that was not done and they intentionally avoided doing it and they did not care to find out whether any mandate was issued by the party. They, of course, knew that there was such mandate issued by the party. It is also stated in the said petition that present petitioner no. 1 himself intended to contest the presidential post and three other petitioners intended to support him and, therefore, they acted against the mandate of the party. Ultimately in the meeting of 02/07/2007 when the proposal for electing Shri Narsinhbhai vastabhai Dabhi as the President was moved, the petitioners did not support it, instead they supported the proposal of one naranbhai A. Dhranga of Congress i. e. , opposition moved for the name of petitioner no. 1 as President and ultimately he got elected. It is further stated that for casting vote against the mandate they did not obtain any permission of the office bearers of the party. Subsequently also the petitioners have not been pardoned by the party for casting vote against the mandate of the party. On these averments it is stated in the said petition that the present petitioners committed breach of certain provisions of the Act and the Rules relating to the same and, therefore, they are liable to be disqualified as members under the Act and they cannot be continued as councillors of the Morbi Nagar Palika. A declaration to that effect has been sought in the petition. The petition is annexed with certain documents and it is stated in the petition that respondents nos. 3 to 6 rely on the said documents and they are to be treated as integral part of the petition.