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2011 (2) GCD 1414 (Guj)
Hon’ble Mr. Justice M.R. Shah
Sunil Narsinh Hathila Ors.
Versus
Designated Authority under Thegujarat Provision for Disqulif & Anr.
Special Civil Application No. 4188 of 2011—Decided on 22/04/2011
Provisions for Disqualification of Members of the Local Authorities of Defection Act, 1986 — Sections 3 and 6 — Provisions for Disqualification of Members of the Local Authorities of Defection Rules, 1987 — Rules 3, 3(1), B and 6 — Disqualifying the petitioners as member of Panchayat — Order passed by Designated Officer — Allegation that despite the whip Petitioner No. 2 contested the election and respective petitioner cast their votes in favour of Petitioner No. 2 — Finding of — Sustainability — Court found that whip was issued with respect to the post of the president of Panchayat by Pradesh Pramukh of BJP to member of the party that one Sri ‘B’ would contest the election — Said whip was entrusted to one ‘R’ for serving to members of Panchayat belonging to BJP and it is admitted position that ‘R’ did not serve any whip to petitioners belonging to BJP — Therefore, there was no question of any breach by petitioner or acting contrary to whip — Considering the facts and circumstances the impugned order of Designated Officer is not sustainable — It is quashed and set aside.
Held :
It may even treating the said communication dated 7.11.2010 as the mandate issued by the party in that case, it appears that said Shri Maheshbhai Bhuriya, BJP, Dahod entrusted the work of serving the said mandate / whip to the members of the Taluka Panchayat belonging to the BJP to one Shri Ramesbhai Hathila and it is an admitted position that the said Shri Rameshbhai Hathila did not serve any whip/mandate to the petitioners and/or others members Taluka Panchayat, Jalod belonging to the BJP. Not only that even the President BJP, Dahod District serving show cause notice upon said Rameshbhai Hathila dated 11.110.2010 seeking explanation of the said Rameshbhai Hathila why the whip / mandate has not been served upon the petitioners and the members of the Taluka Panchayat belonging to the BJP, which was replied by the said Rameshbhai Hathila vide explanation dated 13.11.2010. Thus, it is established that no whip/mandate was served upon the petitioners. [Para 5]
The fact remains that the whip/mandate was not served upon the petitioners and when the whip/mandate was not served on the petitioners, there was no question of any breach by the petitioners and / or acting contrary to the said whip/mandate. Considering the provisions of the Act, more particularly Section 3 / Rule 3 the mandate / whip was required to be served upon the concerned members. It also appears that even the respective petitioners have also tried to get information on 8.11.2010 from the District President, BJP, Dahod with respect to any mandate and it is the case of the petitioners that they were informed that no such mandate has been received and the respective petitioners will be informed at the time of election. Therefore, even the efforts were made by the petitioners to get information with respect to any mandate issued by the party. Nothing is on record that any mandate was served upon the petitioners at the time of election and/ or it was brought to the notice of the petitioners. Nothing is on record that copy of any mandate / whip was given to the Presiding Officer at the time of election. Nothing is on record that the mandate /whip issued by the party of which the breach is alleged, was read over at the time of election. Considering the aforesaid facts and circumstances, Designated Officer erred in holding that the petitioners have acted contrary to the whip/mandate and have incurred disqualification under the Act. [Para 6]
Law Laid Down :
No decision can be based on surmises and conjectures — Facts and allegations must be proved to satisfaction of the Court.
M.R. Shah, J.—By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for an appropriate writ, direction and / or order quashing and setting aside the impugned order passed by the Designated Officer under the provisions for Disqualification of Members of the Local Authorities of Defection Act 1986 and Rules, 1987 (hereinafter referred to as the “Act & Rules”) dated 24.3.2011 passed in Appeal No. 51 of 2010, by which the Designated Officer has passed an order to disqualify the petitioners under Section 6 of the Act r/w Rule 3(1)(B) and Rule 6 of the Rules, 1987 disqualifying the petitioners as member of Jalod Taluka Panchayat.
2. The facts leading to the present Special Civil Application in nutshell are as under:
2.1. All the petitioners were elected as member of the Jalod Taluka Panchayat, elected in an election held on 2.10.2010. The total strength of the panchayat is 35 members out of which 22 members were elected on the symbol of BJP and 12 members have been elected on the symbol of Indian National Congress and one member is from independent party. That all the petitioners were elected on the symbol of BJP. That first meeting of the panchayat to elect the President of the Taluka Panchayat was to be convened and held on 9.11.2010. It is the case of the petitioners that so averred in the petition is that Zalod Taluka Sankalan Samittee hold meeting on 29.10.2010 and it was resolved to elect petitioner No. 2 herein Rameshbhai Bachubhai Damor as President of the Taluka Panchayat and accordingly further steps has taken to elect him. It is the case of the petitioners that Pradesh Pramukh of BJP Shri R.C. Fardu issued mandate /whip on 7.11.2010 authorizing District President of BJP, Dahod, Shri Maheshbhai Bhuriya, indicating the members to be elected on the post of President and Vice President of the Panchayat. It is the case of the petitioners that the said whip was never served on the petitioners and / or any of the members of the panchayat who were elected on the symbol of BJP. According to the petitioners they visited to the Dahod District Party Office to meet Jilla Pramukh Shri Maheshbhai Bhuriya and inquired about any mandate to vote in the election of President and Vice President of the Taluka Panchayat, however no information was supplied and the petitioners were informed that the mandate will be served tomorrow by the authorized person. According to the petitioners, District President issued a letter dated 9.11.2010 addressing to Rameshbhai Hathila for service of mandate to the elected members of the BJP penal, but the said letter was never served on the elected members before the election and the petitioners were not intimated about the mandate and the process of election started at the scheduled i.e. 9.11.2010. That meeting for electing the President and Vice President of the Taluka Panchayat started at 12 noon on 9.11.2010 in which one one Bhaveshkumar B. Katara secured 8 votes and Rameshbhai B. Damor secured 26 votes and accordingly the petitioner No. 2 was declared as elected President of Zalod Taluka Panchayat and one Sunilbhai N. Datila was declared uncontested as Vice President of Zalod Taluka Panchayat. That thereafter, Respondent No. 2 approached the Designated Officer under the Act being Application No. 51 of 2010 declaring petitioners to disqualify as member of the Panchayat under the Provision of the Act alleging inter alia that despite the mandate / whip issued by the appropriate authorities on dated 9.11.2010, the petitioner No. 2 contested the election for the post of President and the respective petitioners cast their votes in favour of the petitioner No. 2 despite the contrary mandate, therefore, it is submitted that respective petitioners have incurred disqualification as their act has not been condoned by the party.
2.2. That the respective petitioners contested the aforesaid application by submitting that as such no mandate / whip was served upon the pe
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