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Gujarat High Court
Judgename :AKSHAY H.MEHTA
DEVABHAI PARBATBHAI AVADIA - Appellant
Versus
P.D.WAGHELA, COMPETENT AUTHORITY - Respondent
Special Civil Application 20042 Of 2007
Decided On : 09/03/2007
Whether proceedings initiated against petitioners for disqualification as Member of Municipality - Sustainable?
Head Note :
Gujarat Provision for Disqualification of Members of Local Authorities for Defection Act, 1986 - Sections 3 and 8 - Gujarat Provision for Disqualification of Members of Local Authorities for Defection Rules, 1987 - Rules 6, 6(1)(2)(3) to (6), 7, 7(3)(b) and 10 - Gujarat Provision for disqualification of Members of Local Authorities for Defection (Amendment) Rules, 2007 - Civil Procedure Code, 1908 (Central Act 5 of 1908) - Order 6 Rules 15, 17 and 18 - Representation of Peoples Act, 1951 (Central Act No. 43 of 1951) - Sections 83 and 86 - Mandate by party - Casting of vote against the mandate - Initiation of proceeding for disqualification - Sustainability - Finding of - Respondents No. 3 to 6 have initiated proceedings against petitioners for having voted against party mandate before designated officer - Notices have been issued against petitioners but instead of filing reply before designated officer they have preferred the petition before the Court - They have first contended and without any force that Respondent Nos. 5 and 6 are not Councillor of the Municipality but only office bearers of the party (BJP), therefore, petition was not maintainable - Provision under the Rule 6(2) it is provided that petition may be made in writing by any other Councillor or Member but the provision is not mandatory - The Rule 7(3)(b) is self explanatory in this regard - It requires that if petition is not made by leader of the party the designated authority has to forward a copy to him - It means that even leader of the party can file petition irrespective of the fact whether he is Member or Councillor - Court, therefore, held that merely on this ground petition can be dismissed - It is also contended that petition filed before designated authority is not verified as mandatorily required under the rules it was therefore, liable to be rejected - Admittedly there is complete non-compliance of this mandatory provision in this regard - When there is non-compliance of mandatory requirement the Designated Officer ought to have dismissed it without issuing notice to petitioners - Court therefore quashed and set aside the said petition filed before Designated authority - However this petition is allowed.
Held :
The under Rule 7(3) (b) of the Rules 1987 provision is self-explanatory. It requires that if the petition is not made by the leader of the party, the designated authority has to forward a copy to him. It means that even leader of the party can file petition, irrespective of the fact whether he is Member or Councillor. Court is, therefore, of the opinion that merely because alongwith two councillors the petition has been filed by the President as well as Secretary of the BJP, it cannot render the petition defective and liable to be dismissed for non-compliance of provisions of Sub-rule (2) of Rule 6, so far it relates to making of the petition by a Member or a councillor is concerned. [Para 7]
Here upon receiving the petition, under Rule 7(1) of the Rules it is the duty of the Designated Officer to ascertain whether petition complies with the requirements prescribed under Rule 6 and if it is found wanting, the next step he has to take is to dismiss the petition and intimate the petitioners the dismissal of petition. The intimation of the defect and consequence thereof are to follow the dismissal and not precede it. There is no provision in the Rules, like Rules 17 and 18 of Order 6 of CPC, which can authorize the Designated Officer to permit the party to amend the pleadings and only upon failure to amend after permission or order, to dismiss it.
There is complete non-compliance of mandatory provisions of Sub-rules (5) and (6) of Rule 6 of the Rules. When there is non-compliance, the Designated Officer ought to have dismissed it without issuing notice to the petitioners, but that has not been done and notice has been done and notice has been issued. When the petition of respondents Nos. 3 to 6 is not maintainable at all in law, Court does not see any need for petitioners to respond to show-cause notice issued in pursuance of such petition and the petitioners are justified in approaching this Court seeking relief under Article 226 of the Constitution of India. The said petition and the notice in pursuance thereof are quashed and set aside. This petition is allowed. Rule made absolute with no order as to costs. [Para 8]
Law Laid Down :
Where the statute prescribe the procedure and also specifically prescribe the consequences of non-compliance no exception can be claimed in case of non-compliance.
Case Law Analysis :
Pushpendra Chandra Prakash Sharma vs. State of Gujarat, Special Civil Application No. 7015 of 1995 dated 16.08.1996;; Dr. (Smt.) Shipra etc vs. Shantilal, JT 1996 (5) SC 681;; F.A. Sapa etc. vs. Lathuthanga, AIR 1991 SC 1557;; Panna vs. Mukhtiar Singh, AIR 1972 P&H 451.-Relied on
Conclusion :
The petitioner presented before Designated Authority against petitioners for their disqualification violates the mandatory requirements of law, therefore, held not sustainable.
Cases Referred :
Amrubhai Nagbhai Maitra vs. Competent Authority, Special Civil application No. 11015 of 2001 dated 05.09.2003;; Uday Shanker Triya vs. Ram Kalewar Prasad Singh, 2006 (1) SCC 75.
Decided in Favour of :
Appellant
Petition Allowed
( 1 ) THIS Court issued Rule on the petition on 24/8/2007. Mr. Sunit Shah, Ld. GP waived service of rule for respondents nos. . land 2 and Mr. A. R. Thakkar, learned advocate waived service of rule for respondents nos. 3 to 6. At the request of the learned advocates for the parties and looking to the urgency, the petition was : taken up for final hearing on 24/8/207 itself. The hearing got concluded on 29/8/ 2007. Thereafter, the petition has been adjourned to 03/09/2007 for pronouncement of the judgment. Now it is being disposed of by this CAV judgment.
( 2 ) THE petitioners herein seek to challenge the proceedings initiated against them under the provisions of The Gujarat provision for Disqualification of Members of Local Authorities for Defection Act, 1986 [hereinafter referred to as the Act ] and The Gujarat Provision for disqualification of Members of Local authorities for Defection Rules. 1987 [hereinafter referred to as the Rules ] as also The Gujarat Provision for disqualification of Members of Local authorities for Defection (Amendment)Rules, 2007 [hereinafter referred to as the amendment Rules ]. The proceedings have been initiated against the petitioners by issuing notice dated 18/7/2007 by the designated Officer intimating the petitioners that despite the mandate or direction having been issued by one Shri arvindbhai Kalyanjibhai belonging to bharatiya Janta Party [hereinafter referred to as bjp ] for not casting the vote against the party s direction in the meeting scheduled to be held on 2/7/2007. the petitioners had casted votes against the direction in the extraordinary general meeting of the municipality for electing the president and thereby they had committed breach of the mandate. It is stated in the notice that Shri Arvindbhai and other members have filed petition for disqualifying the present petitioners as members of the Municipality, hence, if they had anything to say in response to the said petition they should file it in writing on or before 14/8/2007 and if they intended to make personal representation, they should remain present at 11. 30 a m on 21/8/2007 either in person or through any advocate. The said notice has been issued under the provisions of the Act.
( 3 ) THE record of the petition shows that respondents nos. 3 to 6 have filed petition purporting to be under the provisions of rule 6 of the Rules against the present petitioners stating that the President of morbi Nagar Palika, namely Shri pradipbhai Vala, who was elected as member of the BJP, had tendered his resignation and therefore, a meeting was convened on 02/07/2007 at 12. 00 noon in the common hall of the Nagar Palika for holding the election of the President. The meeting was convened under the chairmanship of the Deputy Collector, morbi. It is stated in the said petition that respondents nos. 3 and 4 are the members of Municipality elected under the banner of bjp: whereas respondents nos. 5 and 6 are the President and the Secretary of the BJP of Morbi City. It is stated that on 30/6/ 2007 meeting of the councillors, who got elected on BJP ticket and symbol was convened to decide that the BJP should make one of its councillors to contest the post of President and other councillors of the BJP to support him. In pursuance of the said decision, a direction was later on issued by the President and the Secretary to all the councillors belonging to BJP to vote for councillor Narsinhbhai Vastabhai dabhi. It is further stated that on coming to know about the direction, the present petitioners who had already surreptitiously joined hands with the opposite party, namely Congress, did not accept the mandate and when efforts were made to convey it on mobile phone, they switched off their handsets. Thus, they deliberately did not accept the mandate. It is further stated that under the provisions of the Act it was the duty of the petitioners to ascertain whether there was any mandate from the party, but that was not done and
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