FALGUNIBEN H MEHTA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of this petition under Article 226/227 of the Constitution of India, the petitioners -Municipal Councilors of Himmatnagar Nagarpalika have prayed for an appropriate writ, order and/or directions quashing and setting aside the impugned judgement and order dtd.15/10/2009 passed by the appropriate authority under the Gujarat Provision For Disqualification of Members of Local Authorities For Defection Act, 1986 (hereinafter referred to as the Act for short) Commissioner of Information and Broadcasting, by which the respective petitioners are disqualified as Councilors of the Himmatnagar Nagarpalika under sec.3(1)(a) and 3(1)(b) of the Act. The respective petitioners have also challenged the provisions of Rule 10 of the Gujarat Provision For Disqualification of Members of Local Authorities For Defection Rules, 1987 (hereinafter referred to as the Rules for short) as inserted by the impugned notification dtd.13/2/2007 as ultra vires to provisions of Sec.8 of the Act.

(2.) Facts leading to the present Special Civil Application in nutshell are as under: - All the petitioners are the Municipal Councilors of Himmatnagar Nagarpalika. The petitioners belong to National Political Party Bhartiya Janata Party and it is admitted position that all of them contested the election as Councilors of the Nagarpalika on the ticket of Bhartiya Janata Party. It appears that the term of the President of the Himmatnagar Nagarpalika was to expire on 8/5/2008 and therefore, the District Collector appointed the Deputy Collector, Himmatnagar by order dtd.28/ 4/2008 to preside over and to conduct the meeting on 8/6/2008 to hold the election of the President of the Himmatnagar Nagarpalika. It appears that even the Vice President of the Nagarpalika also tendered his resignation and therefore, the said office was also required to filled in by holding bye election. That the meeting of the Councilors was called and convened on 6/5/2008 by the District Collector, Himmatnagar at 11.00 a.m. at the Meeting Hall of Himmatnagar Nagarpalika. It is the case on behalf of the respective petitioners that in the said meeting the petitioner No.1 came to be elected as the President of the Himmatnagar Nagarpalika whereas one Ushaben Pradipkumar Patel was elected as Vice President of the Himmatnagar Nagarpalika. It appears that one Jayantibhai Devabhai Patel contested the election for the post of the President and he lost against petitioner No.1 by margin of 7 votes. It appears that the respondent No.4 herein filed a petition on 26/5/2008 for making a reference under the provisions of Rule 6 of the Rules before designated officer to disqualify the petitioners under the provisions of the Act by contending inter-alia that the respective petitioners have incurred disqualification under sec.3 of the Act. It was alleged and contended by the respondent No.4 that there was split issued by the leader of the President of the Sabarkantha District Bhartiya Janata Party i.e. one Pruthviraj Patel to the petitioners and all other Councilors belonging to Bhartiya Janata Party to cast their votes only in favour of Jayantibhai Devabhai Patel and dispute that the petitioners acted contrary to the mandate/whip and directions issued by the Bhartiya Janata Party i.e. the President of the Sabarkantha District Bhartiya Janata Party and therefore, they have incurred disqualification under sec.3(l)(b) of the Act. It was further alleged that even the respective petitioners have incurred disqualification under sec.3(l)(a) of the Act as the respective petitioners have voluntarily given up their membership of Bhartiya Janata Party. It appears that along with the said application on 26/5/2004 the respondent No.4 also presented list of documents under a Production Application together with the clarification inclusive of the affidavits of various persons/councilors inclusive of the affidavit of Pruthviraj Patel, President of the Sabarkantha District Bhartiya Janata Party in support of their contention with respect to mandate and direction issued. That the designated officer respondent No.3 issued notice to the petitioners and other respondents of the said application including the petitioner No.2 herein that the petitioners and other respondents of the said application filed a written reply before designated officer on 18/6/ 2008 denying having received any mandate issued by the said Pruthviraj Patel and denying the contents of the affidavit of said Pruthviraj Patel by further taking the defence that the petitioners formed the group and they were more than l/3rd of councilors, that is not disqualification even under sec.3(l)(a) of the Act. That the respondent NO.4 filed rejoinder on 23/6/2008. It appears that there was some dispute with respect to the further proceedings and therefore, the petitioner Nos.2 and 11 approached this Court by way of Special Civil Application Nos.6492 of 2009 and the said Special Civil Application came to be disputed of in view of the statement made by the learned Additional Advocate general appearing on behalf of the respondent Nos.1 and 3 in the said Special Civil Application. That thereafter the petitioners' application was heard by the designated officer on 7/7/2009, by which the application of the petitioners to cross examine Pruthviraj Patel came to be rejected. That the said land came to be challenged by way of Special Civil Application No.7271 of 2009 and the learned Single Judge vide order dtd. 7/10/2009 rejected the said Special Civil Application. Being aggrieved by and dissatisfied with the order passed by the learned Single Judge passed in Special Civil Application No.7271 of 2001, the petitioners preferred Letters Patent Appeal No. 2321 of 2009 before the Vacation Judge. At the time when the present petition was filed, the said Letters Patent Appeal was pending, however, it is reported that the said Letters Patent Appeal is now disposed of with an observation that it will be open for the respective petitioners to take ground while challenging the final decision of the designated authority. That thereafter the designated authority has passed the impugned order dtd. 15/10/2009 disqualifying the respective petitioners from the post of councilors of the Himmatnagar Nagarpalika, both under sec.3(l)(a) and 3(l)(b) of the Act. Feeling aggrieved and dissatisfied with the impugned order passed by the designated authority - the respondent No.3 herein dtde. 15/10/2009 disqualifying the respective petitioners as the councilors of the Himmatnagar Nagarpalika have preferred present Special Civil Application under Article 226/227 of the Constitution of India.

(3.) Mr.Vaghela, learned advocate appearing on behalf of Mr.P.S. Champaneri, learned advocate appearing for the respective petitioners have made the following submissions in support of his prayer to quash and set aside the impugned order passed by the designated authority disqualifying the petitioners as councillors of Himmatnagar Nagarpalika:-