STATE OF GUJARAT Vs. JAYESHKUMAR SHANTILAL PANCHAL

JUDGEMENT

(1.) SPECIAL Civil Application No. 8414 of 2008 was preferred by 1st respondent Jayeshkumar Shantilal Panchal and three others seeking a writ of certiorari to quash order dated 9.6.2008 passed by the Designated Authority and to set aside the proceedings relating to Application No. 27 of 2008. and also to grant consequential reliefs. Before the learned Single Judge contention was raised that Designated Authority Shri P.D. Waghela. Director of Tourism Corporation of Gujarat Ltd. was not holding the post of Secretary to any Department of the State Government and therefore, he cannot be designated as a Competent Authority under Section 6 of the Defection Act. Learned Single Judge accepted the contention and granted interim relief as prayed for. Aggrieved by the same, these appeals have been preferred by the State of Gujarat and others. Identical question came up for consideration in other related matters also and hence, on consent of both the parties, we posted all the matters together for an authoritative pronouncement on the issue involved.

(2.) LETTERS Patent Appeal No. 938 of 2008 was accordingly taken up as the leading case. The subject matter of that case relates to election of the President and Vice President of Borsad Nagar Palika, which was held in the year 2005. In that election, out of 36 Councillors, 11 persons got elected. Election of President and Vice President of Borsad Nagarpalika was due and notice under Section 32 of the Act, read with Rules 3 and 4 of Gujarat Nagarpalika (President and Vice President) Election Rules. 1964 was issued. It was noticed that all those Councillors who were elected on the election symbol of Bharatiya Janta Party were issued a mandate by the President of the political party to vote for the presidential candidate, however, it was stated that respondents Nos. 1 to 4 herein acted against that mandate by casting vote in favour of one Smt. Lataben Sushilkumar Dave. Consequently, respondent No. 5 herein preferred Application No. 27 of 2008 before one P.D. Waghela, I.A.S. Director of Tourism Corporation of Gujarat Ltd., an Officer Designated by the State Government, invoking Section 6 of the Defection Act, to resolve the dispute.

(3.) RESPONDENTS Nos. 1 to 4 raised a contention that Managing Director of Tourism Corporation of Gujarat Ltd was not holding the post of Secretary to Department of the State Government and, therefore not eligible to be declared as a Designated Authority under Section 6 of the Defection Act.