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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
HONOURABLE MR.JUSTICE M.R. SHAH
LALSINGH G RATHVA & 2 - Petitioner(s)
Versus
COMPETENT AUTHORITY - SPORTS YOUTH AND CULTURAL ACTIVITIES & 3 - Respondent(s)
SPECIAL CIVIL APPLICATION No. 7055 of 2009
Decided on : 11/12/2009
Constitution of India, 1950 - Article 226 - Gujarat Provision for Disqualification of Members of Local Authorities for Defection Act, 1986 - Sections 3(1)(a) and (b) - Prayed for appropriate writ order and/or direction quashing and setting aside impugned order - Petitioners came to be elected as Members of in general elections held symbol of a political party election to post of President and Vice President of was scheduled on was case on behalf of original applicants that there was a mandate by political party to cast their votes in favor of one and despite mandate the respective petitioners cast their votes against mandate of the aforesaid political party - Respondent approached Competent appropriate Authority appointed Act seeking disqualification of petitioners contending as respective petitioners have acted and cast their votes against mandate of party and they have incurred disqualification Act - Application was submitted before respondent to disqualify respective petitioners as Members of respective petitioners were served with notice from office of respondent on Petition filed by Act - It was specific case on behalf of respondent that President of Party Unit as well as President of Party of State Unit have given mandate on and directed all members of belong to Party to cast their votes in favors of two candidates only - Respondent produced documents by way of communication mandate petitioners appeared respondent and submitted a detailed reply It was specific case on behalf of petitioners that as mandate by party was in favor of a candidate belonging and as were of opinion that same was not in their interest they resigned from Party and they formed a separate group and assuming that there was a mandate same was not binding to them respondent petitioners submitted affidavit dated designated authority submitting that District President of Party Unit was not having any authority to issue mandate by State Unit and State Unit of Party had not issued any mandate - petitioners that even of communication Secretary of Party State Unit itself addressed a letter to respondent to withdraw - Disqualification Application as the suspension of the respective petitioners from the party was withdrawn and it was requested to dismiss said application - Respondent passed impugned order disqualifying respective petitioners Act holding that respective petitioners have committed breach of mandate issued by Party and they have incurred disqualification Act - Being aggrieved and dissatisfied with impugned order passed by respondent designated authority in disqualifying respective petitioners as Members of Act - Petitioners have preferred present Special Civil Application - Held, No substance in present Special Civil Application which deserves to be dismissed - Notice is discharged as present Special Civil Application is dismissed confirming order passed by respondent disqualifying petitioners as Members of there is no question of granting any interim relief restraining State Election Commission from holding election of posts which had fallen vacant on disqualification of petitioners - Impugned order has been passed in breach of Act and is not required to be considered advocate appearing on behalf of petitioners is not in a position to say anything on merits - Reply to show cause notice in proceedings respective petitioners vide reply have specifically pleaded and averred that respective petitioners have resigned as members of Party was communicated and formed a separate group known as Progressive Group - Advocate appearing on behalf of petitioners is not disputing Councilor or Member belong to any party has voluntarily given up his membership of such political party disqualified admitted - Respective petitioners have voluntarily given up their membership and formed a separate group respective petitioners have also incurred disqualification Act - Factor to dismiss present Special Civil Application and in of admitted this Court has considered same respective petitioners are liable to be disqualified Act - Petition dismissed
1. By way of this petition under Article 226 of the Constitution of India, the petitioners, who are disqualified as Members / Councilors of Chhota Udepur Nagar Palika under the provisions of the Gujarat Provision for Disqualification of Members of Local Authorities for Defection Act, 1986 (hereinafter referred to as “the Act” for short), have prayed for appropriate writ, order and/or direction quashing and setting aside the impugned order dtd.25/5/2009 passed by the Designated Appropriate Authority under the Act by which the petitioners are disqualified as Councilors / Members of Chhota Udepur Nagar Palika by holding that the respective petitioners have incurred disqualification as they have committed breach of the mandate issued by the political party of which they belonged and on whose ticket they were elected as Members of the Chhota Udepur Nagar Palika.
By way of amendment, the petitioners have also prayed for interim relief restraining the State Election Commission from filling up the vacancies created pursuant to the impugned order in Chhota Udepur Municipality, as the State Election Commission has issued a Notification in the month of November, 2009 for election of the posts of Members which had fallen vacant pursuant to the impugned order.
2. Facts leading to the present Special Civil Application, in nutshell, are as under:-
3. All the petitioners came to be elected as Members of the Chhota Udepur Nagar Palika in the general elections held on 17/2/2008 on the symbol of a political party - Bhartiya Janata Party. That the election to the post of the President and the Vice President of the Nagar Palika was scheduled on 5/3/2008. It was the case on behalf of the original applicants that there was a mandate by the aforesaid political party to cast their votes in favour of one Narendrabhai Jayswal (as President) and one Mehulbhai Patel (as Vice President) and despite the mandate the respective petitioners cast their votes against the mandate of the aforesaid political party. Therefore, the respondent Nos.2 and 3 herein approached the respondent No.1 - Competent appropriate Authority appointed under the Act seeking disqualification of the petitioners contending inter-alia that as the respective petitioners have acted and cast their votes against the mandate of the party, and they have incurred disqualification under sec.3(1)(b) of the Act. An application was submitted before the respondent No.1 to disqualify the respective petitioners as Members of the Nagar Palika. The respective petitioners were served with the notice from the office of the respondent No.1 on the Petition No.21 of 2008 filed by the respondent Nos.2 and 3 under sec.3(1)(b) of the Act. It was specific case on behalf of the respondent Nos.2 and 3 that the President of the Bhartiya Janata Party, Vadodara Unit as well as the President of the Bhartiya Janata Party of the State Unit have given mandate on 5/3/2008 and directed all the members of the Chhota Udepur Nagar Palika belong to Bhartiya Janata Party to cast their votes in favour of the aforesaid two candidates only. The respondent Nos.2 and 3 produced documents by way of communication / mandate dtd.5/3/2008. All the petitioners appeared before the respondent No.1 and submitted a detailed reply dtd.15/6/2008. It was the specific case on behalf of the petitioners that as the mandate by the party was in favour of a candidate belonging to Bahujan Samaj Party (B.S.P.) and as they were of the opinion that the same was not in their interest, they resigned from the Bhartiya Janata Party and they formed a separate group and therefore, assuming that there was a mandate, the same was not binding to them. It was further submitted that though the mandate was read over by one Mehulbhai Patel, as one another member objected to them, the same could not be read and therefore, they were personally not aware of such a mandate by the Bhartiya Janata Party. Therefore, it was requested to withdraw the notice by holding t
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