BHAGWATIPRASAD HIMATLAL JOSHI Vs. PINAKIN PRAVINCHANDRA BRAHMBHATT

JUDGEMENT

(1.) THE petitioners have filed this petition under Articles 226 and 227 of the Constitution of India challenging the order dated 27. 3. 2009 passed by the respondent No. 2 i. e. Designated Authority, constituted under the provisions of the Gujarat Provision For Disqualification Of Members Of Local Authorities For Defection Act, 1986 allowing the application filed by the respondent No. 1 and declaring the petitioners disqualified for the post of Councilors under the Defection Act.

(2.) THE petitioners are Members of Khambhat Nagarpalika. They were the candidates set up by Bhartiya Janta Party (BJP ). The general elections of Khambhat Nagarpalika were held on 25. 10. 2005 wherein the petitioners, who were candidates in the said election, were declared elected from different posts of Nagarpalika. An agenda was issued by the District Collector, Anand whereby all the Members of the Nagarpalika were informed that a meeting of the Members of Khambhat Nagarpalia would take place on 5. 5. 2008 for the purpose of holding election of President and Vice President. A letter was addressed by the President of State Unit of BJP on 3. 5. 2008 to the President of District Unit, Anand BJP wherein it was informed that Shri Zaverbhai Govindbhai Solanki and Shri Jayrambhai Kanjibhai Chunara are the candidates for the posts of President and Vice-President of Khambhat Nagarpalika and accordingly it was directed to issue mandate to all the Members. The District Unit President, Anand District BJP issued a whip to all the Members of BJP to vote in the elections of President and Vice President for the aforesaid two persons, namely, Shri Zaverbhai Govindbhai Solanki and Shri Jayrambhai Kanjibhai Chunara respectively.

(3.) AN application was submitted by the petitioners on 5. 5. 2008 to the Chief Officer of Khambhat Nagarpalika regarding forming of a separate group wherein it is stated that total strength of Members of Nagarpalia is 36. Out of these 36 Members, BJP has 23 Members and the remaining 13 Members belongs to Congress or independent group. It is also stated in the said letter that since they are 12 in number, they may be declared as separate group and necessary permission be granted to them to sit separately. The Chief Officer, vide his letter dated 5. 5. 2008 informed the petitioners that they could form a separate group. The meeting was held for election of President and Vice President. The petitioner No. 2, namely, Revaben Shankarbhai Chauhan, offered herself for the post of President. Accordingly, in the election held on 5. 5. 2008 for the post of President she secured 25 votes and Shri Zaverbhai Govindbhai Solanki secured 11 votes. For the post of Vice President Shri Jayrambhai Kanjibhai Chunara came to be declared elected. Pursuant to this election result, the President of BJP State Unit passed an order on 6. 5. 2008 suspending the petitioners from BJP and asked to show cause as to why the disciplinary action should not be taken against them for committing breach of mandate.