YOGHESHKUMAR BECHARBHAI UPADHYAY Vs. STATEELECTION COMMISSION

JUDGEMENT

(1.) IN this petition, under Article 226 of the Constitution, the petitioner has challenged the order dated 24th July, 2009 of Collector, Anand holding that the petitioner having already been disqualified under the Gujarat Provision for disqualification of Members of Local authorities for Defection Act, 1986 [hereinafter referred to as "the anti-Defection Act"], has ceased to hold office as Councillor of Khambhat Municipality, more particularly, upon dismissal of the petition by the learned Single Judge on 2nd april, 2009 and dismissal of the Letters patent Appeal on 24th July, 2009.

(2.) THE petitioner was a Councillor in khambhat Municipality against whom the order dated 27th March, 2009 was passed by the designated Authority under the anti-Defection Act. The writ petition filed by the petitioner came to be dismissed by the learned Single Judge on 2nd April, 2009 and the Letters Patent Appeal came to be dismissed on 24th July, 2009. The meeting of the Khambhat municipality is now scheduled to be held on 30th July, 2009. The petitioner has made a grievance that although no final order of petitioner's removal from the office of councillor is passed by the Collector under section 38 (2) of the Gujarat Municipalities act, 1963, the petitioner has not been served with the notice of such meeting.

(3.) MR. Rana has vehemently submitted that even when a Councillor is disqualified under the Anti-Defection Act, the Collector is required to take a decision under Section 38 (2) of the Municipalites Act as to whether a vacancy has arisen. Such a question is to be decided by the Collector on an application made to him by any person or on his own and after giving the concerned councillor reasonable opportunity of being heard. It is submitted that the petitioner made such an application on 22nd July, 2009 that in view of absence of any such order under Section 38 (2), the petitioner cannot be disabled to continue as councillor and his office cannot be treated as vacant. The petitioner also contended that in absence of any such decision under section 38 (2) of the Municipalities Act, the state Election Commission could not have issued the communication dated 17th July, 2009 for filling up the vacancy in the concerned constituency of Khambhat municipality from where the petitioner was elected as a Councillor.