KAMINIBEN S PANDYA Vs. DISTRICT COLLECTOR

JUDGEMENT

(1.) NOTICE was issued on 9. 6. 2008 and in view of the facts of the case, it was made returnable today. Mr. V. H. Patel, Advocate has entered appearance on behalf of respondent No. 2. In view of the issue raised, Rule. Mr. Shah and Mr. Patel waive service of Rule. Considering the impugned order and on request of the parties and with their consent, Rule returnable today and matter is taken for final hearing and disposal today. The petitioner in this petition under Article 226 of the Constitution of India has approached this Court against the communication-order dated 7. 6. 2008. According to the petitioner, the respondent No. 1 has, by the said communication-order, restrained the Siddhpur Nagarpalika from holding meeting (s) until 18. 6. 2008. The petitioner has preferred the petition, mainly, on the ground that the respondent No. 1 does not have any power or jurisdiction to restrain the Nagarpalika from holding meeting (s) and/or members of the Nagarpalika from participating in the meetings.

(2.) IT is the case of the petitioner that the general elections of the Siddhpur Nagarpalika were held on 22. 5. 2005 pursuant to which the new body was elected. The petitioner is one of the elected members. The petitioner has further stated that a meeting of the Nagarpalika was held on 5. 5. 2008 when the President and Vice-President of the Nagarpalika were elected. The petitioner has further submitted that on or around 16. 5. 2008 the respondent No. 2 filed an application being Application No. 18 of 2008 before the designated authority under the Gujarat Provision for Disqualification of Members of Local Authorities for Defection Act, 1986 (hereinafter referred to as 'the Disqualification Act') praying inter alia that the petitioner and certain other members of the Nagarpalika be disqualified under the provisions of the Disqualification Act for having not voted in favour of the candidates set up by the party on whose symbol the said persons got elected. It is further stated that the petitioner and other six members have filed a writ petition being Special Civil Application No. 8305 of 2008 in this Court praying that the aforesaid disqualification proceedings pending before the designated authority be transferred before any other designated authority and that the said petition, after issuance of notice, is pending in this Court and further hearing of the said petition is scheduled to take place on 17. 6. 2008. It is further stated by the petitioner that in her capacity as the President, an agenda was issued on 4. 6. 2008 for a meeting scheduled to be held on 9. 6. 2008 and that though the agenda was issued on 4. 6. 2008 it was only on 7. 6. 2008, which happened to be Saturday, the respondent No. 2 appears to have approached the respondent No. 1 and requested the respondent No. 1 to issue appropriate directions so that the meeting scheduled to be held on 9. 6. 2008 may not be held. The petitioner claims that on 7. 6. 2008, i. e. , on Saturday the respondent No. 1 passed an ex-parte order without affording opportunity of hearing to the petitioner or the other six members i. e. , the petitioners of abovereferred writ petition being SCA No. 8035 of 2008 and the meaning and purport of the said order is that the Nagarpalika is restrained from holding the meeting scheduled to be held on 9. 6. 2008 and any meeting until 18. 6. 2008.

(3.) MR. Jani appearing for the petitioner submitted that the said communication-order dated 7. 6. 2008 is not only wholly without any authority in law but is also contrary to the law laid down by this Hon'ble Court [coram: Hon'ble Smt. Justice Abhilasha Kumari] vide judgment dated 28. 4. 2008/2. 5. 2008 passed in Special Civil Application No. 6584 of 2008 and that the respondent No. 1 ought not to have issued the impugned direction restraining Siddhpur Nagarpalika from holding the meetings.