Point in Issue :
Whether order with regard disqualification of petitioners as member of Panchayat valid.

J.B. Pardiwala, J.—As common questions of facts and law arise in both these appeals, they are disposed of by this common judgment and order.

The appellants – original writ petitioners seek to challenge common judgment and order passed by the learned Single Judge dated 3rd March 2011 in Special Civil Application No. 2533 of 2011 and Special Civil Application No. 2534 of 2011 whereby the learned Single Judge dismissed both the writ petitions.

2. Brief facts relevant for the purpose of deciding this appeal can be summarised as under:—

3. Letters Patent Appeal No. 506 of 2011 is preferred by writ petitioner of Special Civil Application No. 2534 of 2011. Appellant of Letters Patent Appeal No. 506 of 2011 is the ex Vice President of Bhesan Taluka Panchayat. Her challenge before the learned Single Judge was to the order passed by the Designated Officer and Settlement Commissioner and Director of Land Records, State of Gujarat, passed in Application No. 53 of 2010, by which the appellant was ordered to be disqualified as member of Bhesan Taluka Panchayat under Section 3(1)(b) of the Gujarat Provisions for Disqualification of Members of Local Authorities for Defection Act, 1986 (hereinafter referred to as ‘the Act of 1986’) read with Rule 6 of the Gujarat Provisions for Disqualification of Members of Local Authorities for Defection Rules, 1987 (hereinafter referred to as ‘the Rules of 1987’).

4. In the same manner, the appellant of Letters Patent Appeal No. 507 of 2011 is the original writ petitioner of Special Civil Application No. 2533 of 2011. He is the ex President of Bhesan Taluka Panchayat. He also challenged the same order as referred to above in Paragraph 3 whereby the appellant has been disqualified as the Member of Bhesan Taluka Panchayat under Section 3(1)(b) of the Act of 1986 read with Rule 6 of the Rules of 1987.

5. As neat questions of law have been raised in both the appeals, we are not referring to the facts in detail as the same can be gathered from the common judgment and order passed by the learned Single Judge.

6. The principal contentions raised on behalf of the appellants are as under:—

6.1 It is submitted that if any question arises as to whether a Councilor of a Municipal Corporation, a member of the Panchayat or a Councilor of Municipality has become subject to disqualification under the Act of 1986, then, the question has to be referred to the Chief Secretary of the State Government or to such Officer not below the rank of a Secretary of any Department of the State Government, as may be designated by the State Government in this behalf, and his decision shall be final. It is submitted that in the present case the order of disqualification was passed by the first respondent, who is a Settlement Commissioner and Director of Land Records, State of Gujarat and he is not an officer of the rank of the Secretary. It is submitted that there is nothing to suggest that the Officer, who passed the order, was empowered under Section 6 of the Act of 1986. It appears that this contention was raised before the learned Single Judge and the learned Single Judge answered the same by observing that the contention/objection was never raised by the appellant before the Designated Officer i.e. Respondent No. 1, otherwise, the same would have been dealt with by the Respondent No. 1. Learned Single Judge further observed that this contention was taken up only by way of amendment and the point was not elaborately taken up in the main petition.

6.2 Since the issue relates to power and jurisdiction of the authority to pass the order under Section 6 of the Act of 1986, we thought fit to look into the issue little closely more particularly when a quasi judicial power vested in an authority by the Statute must be exercised by the person holding the office and no other. This is expressed by saying that ‘judicial duties’ cannot be abnegated. We, therefore, passed an order directing the respondents to state as to whether the first respond