2008 Supreme(Guj) 180

2008 (3) GCD 2010 (Guj)
Hon’ble Mr. Justice C.K. Buch
Pravinji Shakraji Thakore & Ors. [Ahmedabad]
Versus
State of Gujarat & Ors.
Special Civil Application No. 5505 of 20081—Decided on 15/05/2008

Point in Issue :
Whether in the facts of the case petitioner has incurred disqualification, therefore, not entitle to relief claimed.

Headnote:Head Note :

       Disqualification of Members of Local Authorities for Defection Act, 1986 — Sections 3, 3(1)(b), 4(a)(1) and 6 — Gujarat Provisions for Disqualification of Members of Local Authorities for Defection Rules, 1989 and Amended Rules, 2007 — Rule 10 — Gujarat Panchayat Election Rules, 1985 — Rules 53(3) and 63(3) — Gujarat Panchayat Act, 1993 — Section 15(4) — Panchayat (Procedure) Rules, 1997 — Rule 20 — Disqualification — Ground of defection — Leaving INC (I) party — Forming Separate group — Sustainability — Finding as to — In elections of Gandhinagar district Panchayat 15 elected members belong to INC (I) formed party — Four petitioners belonging to said party alongwith one more member namely K.T. Chandhari who later resited from joining decided to form a separate group and jointly submitted an application to record split and recognise them as seperate group — Later because one of the five sent a letter to the designated officer as not member of split ground, they were left only four to form a separate party — Respondents main thrust of argument is mainly on the ground that the petitioners have incurred disqualification as they have decided to leave INC (1) through there was no split in the original national party either at National Level or State Level or at District Level — On the facts the Designated Officer has reached to the conclusion that there was no split in the party therefore, petitioners have incurred disqualification by forming a separate group seeking recognition — That apart conduct of petitioners is also relevant for the purpose — Conduct of petitioner before their meeting split and continuing with the stand of split till date of meeting with regard non-confidence motion and conclusion of the proceedings of the meeting are sufficient to hold that petitioners have incurred disqualification and finding under the challenge of Designated Officer is not required to be defied — It has come on record that mandate was issued by the competent person by National party and the same was duly issued and petitioners being aware of mandate knowingly defied the same — It is sufficient to declare them disqualified — Considering all the relevant aspects including facts and law Court held that order under challenge requires to be confirmed.

       Held :

       It is possible to infer for this Court that on 17.10.2007, perhaps there were only 4 members and after swearing an affidavit on 15.10.2007, Kunverben Chaudhari may have decided not to join the rebellion. Each person in the political field thinks for the political stability and progress in the field. Everybody in his respective life does so. There was no need for the Designated Officer to send documents to handwriting experts. Reasonable scrutiny is permissible and there is no reason for this Court to differ with the finding recorded by the Designated Officer in this regard, because, this Court has reason to believe that the authority must have taken all care in dealing with sensitive issue/controversy as to genuineness of signature of Kunverben Chaudhari and when the conclusion is found recorded on sound good reasons, then, the Court should not record different finding unless the finding recorded by the Designated Officer is patently found illegal, perverse and contrary to the principles of natural justice or arbitrary. The order for disqualification was prayed by the applicants for two different reasons and the decision under challenge is mainly based on the first ground that the petitioners have incurred disqualification as they have decided to leave INC [1] in Gandhinagar District Panchayat Party though there was no split in the original national party either at National level or State level or at District level. It was, therefore, prayed that the Designated Officer should declare that the petitioners are disqualified as member of Gandhinagar District Panchayat as the case of the petitioners falls in the category of Section 4[a][i] of the Act. Number of documents, even the letter-pad used by one of the petitioners indicates that 4 members had decided to form separate group and thereby they had given up their membership as member representing INC [1] in Panchayat Party. [Para 20]

       Second impeachment is that all the 4 petitioners had refused to accept the party mandate and ultimately voted against the party mandate in the special general meeting called to discuss and pass appropriate resolution of No Confidence Motion moved against the President of the District Panchayat. [Para 23]

       Here, all the four petitioners, undisputedly were party in signing the notice of No Confidence Motion and its dispatch to the Authorised Officer whereby No Confidence Motion was moved and ultimately, the meeting was ordered to be convened on 11.01.2008. Therefore, the correspondence referred to hereinabove on the letter pad of one of the petitioners, namely, Pravinji Shakraji Thakor and their stand before the Designated Officer, while filing reply to the application submitted, obviously goes against the present petitioners. Therefore, it is possible for the Court to dismiss the present petition observing that the finding of the Designated Officer is absolutely legal considering the scheme of Section 3[1][a] read with Section 6. [Para 31]

       Conduct of the petitioners as discussed herein above is relevant for the purpose of reliefs prayed for by the petitioners. Conduct of each of the petitioners prior to 17.10.2007 and the conduct of continuing with the stand of split in the Panchayat Party till date of meeting and its conclusion of the proceedings of that meeting, are sufficient to hold that the petitioners have incurred disqualification and the finding under challenge is not required to be disturbed. Similarly, it has come on record to the satisfaction of the Court that mandate was issued by the competent person duly authorised by the national party and the same was duly issued and that the petitioners were aware or they were made aware about the mandate issued by the party. The fact that the petitioners have defied the mandate issued by the party is sufficient to declare them disqualified under Clause [b] of Sub-section [1] of Section 3 and thus, on evaluation, the order under challenge requires to be sustained/confirmed. [Para 36]

       Law Laid Down :

       In case of split 1/3 members of the State Legislature in a political party must form a group to make split effective within the State Legislature.

       Case Law Analysis :

       Jagjit Singh vs. State of Haryana and Ors., 2006 (11) SCC 1;; Rajendra Singh Rana & Ors. vs. Swami Prasad Maurya, AIR 2007 SC 1305;; Kihoto Hollohan vs. Zachilihu & Ors., 1992 Supp (2) SCC 651;; Ravi S. Naik vs. Union of India & Ors., AIR 1994 SC 1558.—Relied on

       Sadashiv H. Patil vs. Vithal D. Teke and Ors., 2000 (8) SCC 82.—Distinguished

       Petitions Dismissed