DEVABHAI PARBATBHAI AVADIA Vs. DISTRICT COLLECTOR

JUDGEMENT

(1.) RULE. Mr. Jaswant K. Shah, learned assistant Government Pleader, waives service of Rule on behalf of the respondent no. 1. Mr. H. A. Dave, learned Counsel, waives service of Rule on behalf of the respondent No. 2. In the facts and circumstances of the case and with the consent of the learned Counsel for the parties, the matter is heard and disposed of finally today.

(2.) THIS petition, under Art. 226 of the Constitution of India, has been filed with a prayer to issue a writ of Mandamus or any other appropriate writ, order or direction to quash and set aside the order dated 8-4-2008 rendered by the respondent No. 1, i. e. the District Collector, Rajkot, whereby, he has restrained the petitioners from taking part in the meetings of the General as well as Special Board of the Morbi Nagarpalika pending the decision of the case regarding disqualification of the petitioners under the provisions of the gujarat Provision for Disqualification of Members of Local Authorities for defection Act, 1986.

(3.) THE brief facts of the case, emerging from a perusal of the averments made in the writ petition, are that the petitioners (four in number) were elected as members of the Morbi Nagarpalika in the general election held in the year 2005. It will be pertinent to notice the brief background of the case. Earlier, petition No. 14 of 2007 came to be filed against the petitioners under the provisions of the Gujarat Provision for Disqualification of Members of Local authorities for Defection Act, 1986 ("the Defection Act" for short ). The petitioners filed an application pointing out the objections as well as the judgment of this Court and prayed to reject the said petition. This application of the petitioners was rejected vide order dated 14-3-2007. Being aggrieved by the order dated 14-3-2007 of the Competent Authority, the petitioners filed Special Civil application No. 5343 of 2008. According to the averments made in the petition, the Court permitted the petitioners to apply for adjournment before the Competent authority in the proceedings emanating from Petition No. 14 of 2007. However, no interim relief was granted to the petitioners. The request of the petitioners for grant of adjournment was not acceded to by the Competent Authority, and therefore, the petitioners filed Letters Patent Appeal No. 320 of 2008 praying for a stay on further proceedings before the Competent Authority under the defection Act. It transpires from the present petition that the Division Bench of this Court passed an order dated 3-4-2008, staying further proceedings, as well as the order dated 14-3-2008 made by the Competent Authority under the defection Act, and subsequently, the Letters Patent Appeal was disposed of vide order dated 16-4-2008 with a direction that the writ petition, which is pending before the learned single Judge, be heard on 25-4-2008, and the interim order should continue till such date. According to the averments made in the petition, pending these proceedings, the Collector, Rajkot, made an ex pane order preventing the petitioners from participating in the meeting of the General Board of the Morbi Nagarpalika which was scheduled for 24-3-2008. The petitioners filed a reply before the Collector pointing out various orders of this Court and submitting that the Collector has no jurisdiction to make any order under Sec. 258 of the Gujarat Municipalities Act, 1963 ("the Act" for short ). It is stated that the Collector, vide impugned order dated 8-4-2008, though has held that he has no authority to exercise jurisdiction under Sec. 258 of the Act, has still made an order preventing the petitioners from participating in the meeting of the Morbi Nagarpalika, necessitating the filing of the present petition.