2007 Supreme(Guj) 532

2008 (1) GCD 576 (Guj)
Hon’ble Mr. Justice Akshay H. Mehta
Devabhai Parbatbhai Avadia & Ors.
Versus
P.D. Waghela - Competent Authority & Ors.
Special Civil Application No. 20042 of 2007—Decided on 03/09/2007

Decided in Favour of :
Respondent
Petition Dismissed

Headnote:Head Note :

       (a) Gujarat Provision for Disqualification of Members of Local Authorities for Defection Act, 1986 — Section 3 — Gujarat Provision for Disqualification of Members of Local Authorities for Defection Rules, 1987 — Gujarat Provision for Disqualification of Members of Local Authorities for Defection (Amendment) Rules, 2007 — Rules 6(2), 7(3)(b) and 7(2) — Disqualification on ground of defection — Allegation of casting votes against the direction for electing the President — Petition filed to disqualify the petitioners as member of the Municipality — Disputed position of fact whether mandate was given or not cannot be decided in writ jurisdiction — Minutes of the meeting produced but do not reflect any such mandate having been asscertained by the Chairperson — Petition can be made even by the leader of party irrespective of the fact whether he is member or Councilor — Petition filed by President and Secretary of B.J.P. cannot render it defective and liable to be dismissed for non-compliance of provisions of Sub-rule (2) of Rule 6.

       Held :

       It is alleged by Respondents No. 3 to 6 that since event of defection has taken place, the petitioners are liable to be disqualified under the provisions of Section 3. It is the say of the petitioners that no such mandate was given by the party and, therefore, the petitioners cannot be said to have acted in contravention of the mandate of the party. This dispute is, however, based on the facts and, therefore, it is not possible for me to decide it in this petition. It is no doubt the case of the petitioners that in accordance with Rule 10, which has been introduced by way of an amendment, a councilloror a member elected on the symbol of political party is required to ensure whether any mandate is issued by his political party while attending any meeting of the local body and if such mandate is issued by such political party, he should obtain such mandate from such political party. It also envisages that chairperson of the meeting to verify that such a mandate is issued by political party and circulated to the councillors or the members of the local body. In the instant case, the minutes of the meeting dated 02.07.2007, which have been produced on record, do not reflect any such mandate having been ascertained by the chairperson, but from that fact alone it is difficult to say with certainty that no mandate was given by the party to support and vote for the party’s presidential candidate, namely Mr. Dabhi. Such fact can only be ascertained during the detailed inquiry, that can be made by the Designated Officer. Hence, there is no need for me to express any opinion or give finding on that count. [Para 6]

       So far as the submission of Mr. Pahwa with regard to reference to be made on petition by the members or councillors alone is concerned, the aforesaid provisions of Rule 6 and in particular Sub-rule (2) thereof, shows that such petition may be made in writing to the Chief Secretary, Government of Gujarat or Designated Officer by any other councillor or, as the case may be, by member. It may be noted here that in Rules 6 (1), (3), (4), (5) and (6) the legislature has used the word “shall”; whereas in this rule the word “may” has been used. It is, therefore, clear that this requirement is not mandatory, but it is directory. In other words, if the rule is read in its entirety, it clearly shows that word ‘may’ is required to be given its ordinary dictionary meaning which is relevant for this purpose is “expressing permission, expressing a wish or desire” and there is no need to give any other meaning. Legislative intent is eloquent as in rest of the provisions of this rule word “shall” is used. Sub-rule (1) makes the compliance of the requirements prescribed in Rule 6 compulsory or mandatory, but so far as making of the petition is concerned, in Sub-rule (2) it is provided that it may be made in writing by any other councillor or member. Further, so far as the first part of this requirement is concerned i.e., the petition to be made in writing, considering the subsequent provisions of this rule, it appears to be mandatory. There are mandatory requirement that in the petition, the petitioner has to make concise statement of material facts, he has to sign it and also verify it in accordance with provisions of CPC; he has to sign and verify the documents to it and if the petition is based on information, he has to state the source and detailed address, etc. [Para 7]

       (b) Gujarat Provision for Disqualification of Members of Local Authorities for Defection (Amendment) Rules, 2007 — Rules 6, (5), (6) and 7(2) — Civil Procedure Code, 1908 (Central Act 5 of 1908) — Order 6 Rule 15 — Verification of pleadings — Petition filed before the designated authority not verified — Annexures to the petition also neither verified nor signed by any Respondent Nos. 3 to 6 — Whether non-compliance is fatal — Consequences of non-compliance provided in Rule 6(6) and 7(2) — In case of non-compliance of rules dismissal of petition provided in Sub-rule (2) of Rule 7 — Held, no option except to dismiss the petition.

       Held :

       Sub-rule (2) of Rule 7 clearly specifies that if petition does not comply with requirements of rule 6, the Designated Officer or the Chief Secretary shall dismiss the petition and intimate the petitioner accordingly. According to Rule 7, on receipt of the petition, the Chief Secretary or the Designated Officer has to ascertain and consider whether the petition complies with the requirement of rules and if it is found to be not complying, the dismissal has to follow. Thus, the authority has not been given any option but to dismiss the petition.

       Submission of Mr. Shah and Mr. Thakkar that the dismissal can entail only when the Designated Officer gives opportunity to the petitioners of such petition to amend it or correct or cure defects and in spite of that the defects are not cured, then only such petition can be dismissed. I am not inclined to accept the submission because unlike Rule 17 and Rule 18 of the CPC there is no such provision in the Rules 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.

       Respondent Nos. 3 to 6 have themselves stated in the petition that they place complete reliance on the annexures and they are to be treated as integral part of the petition and, therefore, these annexures also ought to have been signed and verified in accordance with Sub-rule (6) of Rule 6. But neither the signature is there nor any verification. The ratio laid down in the case of Pushpendra Chandra Prakash Sharma vs. State of Gujarat, Special Civil Application No. 7015 of 1995, dated 16.08.1996 will not help the Respondent Nos. 3 to 6. Therefore, 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 issued. When the petition of Respondent 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. [Para 8]

       Case Law Analysis :

       Pushpendra Chandra Prakash Sharma vs. State of Gujarat, Special Civil Application No. 7015 of 1995, dated 16.08.1996 [Para 8].—Not Applicable