FAIBABEN JORUBHAI VALA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present petition is filed under Article 226 of the Constitution of India for challenging the legality and validity of the order dated 21.9.2017 passed by respondent No.2.

(2.) The case of the petitioners is that the petitioners are the elected representatives and members of Taluka Panchayat, Dhari, District - Amreli. The petitioner No.1 is the Chairman of Executive Committee, whereas petitioner Nos.2 and 3 are the members of the Executive Committee. These petitioners were elected under the symbol 'Indian National Congress' and were representing. The respondent No.3 filed an application before the respondent No.2 for seeking disqualification of petitioners by alleging that they have violated the provisions contained under the Gujarat Provision for Disqualification of Members of Local Authorities for Defection Act,1986 (for short 'the Act') and the Rules. The main premise on which the application was submitted is that though there was a specific whip issued by the competent authority, these petitioners have deliberately avoided, not complied with and acted against the whip. The whip was to the effect that general meeting of Dhari Taluka Panchayat is to take place on 2.8.2016 at 11.00 O'clock in the campus of Mithapur ?Dungri Gram Panchayat and it was directed that these petitioners, who elected themselves under the banner of 'Indian National Congress' and are the members of the Taluka Panchayat, Dhari, have to vote against all the items of agenda. It is alleged that this whip though has been made known to them, these petitioners have acted quite contrary to it, as a result of which initially the show ?cause notice was issued on 5.8.2016 as to why for violating the mandate and defying the same, the petitioners should not be suspended from the membership of the party and why the membership should not be cancelled. In response to this show ?cause notice which is undisputedly given, a reply is given by the petitioners on 8.8.2016 and it appears that later on, on 19.8.2016, the respondent No.3 has submitted an application before the competent authority at Gandhinagar under the provisions of the Act and the Rules. Pursuant to this application, the proceedings have been adjudicated undisputedly by the competent authority which application was registered as Application No.23 of 2016 and the authority i.e. respondent No.2 herein has passed the order on 21.9.2017 allowing the Application No.23 of 2016 and declared the petitioners disqualified as members of the Dhari Taluka Panchayat. It is this order passed by respondent No.2 is made the subject matter of present writ petition under Article 226 of the Constitution of India.

(3.) Mr.C.B.Upadhyaya, learned advocate appearing with Mr.Harshil C. Dattani, learned advocate for the petitioners, has vehemently contended that the order in question is not only unjust and arbitrary, but contrary to the object of the provisions of the Act and there appears to be a clear misleading of the provisions by the authority. It has also been contended that thought there was specific issues were framed by the authorities which were for consideration, the respondent No.2 has not assigned any cogent reason nor has determined in the manner in which the same are to be dealt with. It has also been contended by learned advocate that the whip itself which has been issued is not by the competent authority and there is no clarity as to who is the competent person to issue the whip. In fact, while contending this, Mr.Upadhyaya, learned advocate, has drawn the attention of this Court to Page ?52 of whip dated 27.7.2016 and later on, has taken the Court to a communication dated 21.9.2015 reflecting on Page ?55 and has then contended that the President, who said to have issued the whip, is not competent enough as is clearly reflecting from the communication dated 21.9.2015. As a result of this, the provisions contained in Section 3 of the Act are ex ?facie not attracted.