Back
2013 Supreme(Guj) 184
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
HARSHA DEVANI, J.
CHAMANBHAI MAGABHAI VINZULA - Petitioner(s)
Versus
D H BRAHMBHATT - IAS THE DESIGNATED AUTHORITY AND
SPECIAL CIVIL APPLICATION NO. 7124 of 2013
With SPECIAL CIVIL APPLICATION NO. 7125 of 2013
SPECIAL CIVIL APPLICATION NO. 7126 of 2013
Decided On : 09/05/2013
MR BM MANGUKIYA, ADVOCATE for the Petitioner(s) No.1 - 2 MS BELA A PRAJAPATI, ADVOCATE for the Petitioner(s) No.1 -2 DS AFF.NOT FILED (N) for the Respondent(s) No.1 MS NISHA THAKORE, ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No.1 in SCA/7124/2013 and SCA/7126/2013 MS SHRUTI PATHAK, ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No.1 in SCA/7125/2013 MR CB UPADHYAYA, ADVOCATE for the Respondent(s) No.2 NOTICE SERVED BY DS for the Respondent(s) No.3
Headnote:
Gujarat Provision for Disqualification of Members of Local Authorities of Defection Act, 1986 - Section 6 - Gujarat Provincial Municipal Corporations Act, 1949 - Section 10(3) -Suit for injunction - Petitioners have challenged the common order passed by the respondent No.1 - Designated Officer whereby the application made by the petitioners for restraining the second respondents in each of the petitions from taking part in any meeting of the Corporation be it General Board and/or any Committee or Sub- Committee in any manner whatsoever including the meeting scheduled to be held has been rejected - The Corporation comprised of thirty three Councillors and the elections were held , Both, the Indian National Congress as well as the Bharatiya Janata Party, set up their official candidates in the said election - Eighteen candidates set up by the Congress got elected whereas fifteen candidates set up by the Bharatiya Janata Party also got elected and first petitioner is stated to be the leader of the Congress in the Gandhinagar Municipal Corporation whereas the second petitioner is the President of the Gandhinagar City and Congress Committee - After assuming charge as Corporator of the Gandhinagar Municipal Corporation, the respondent No.2 herein remained loyal to the Congress, however, subsequently he changed his loyalty and joined hands with the BJP, since then has become a member of the said party and second respondent had defected from the Congress since about six months and had joined the BJP and was supporting the same, according to the petitioners, he had incurred disqualification on the ground of defection under the provisions of the Gujarat Disqualification of Members of Local Authorities for Defection Act, 1986 - Appeal - Held, Unless and until designated officer decides question whether councillor is disqualified under the Act, such councillor cannot be restrained from performing his duties as councilor, decision of the designated officer on the question of disqualification is a decision ex post facto and the disqualification would relate to the date when such disqualification was incurred viz. from the date such person voluntarily gives up his membership of the political party to which he belongs and/or from the date when he voted or abstained from voting in any meeting of the municipal corporation, panchayat or as the case may be municipality, contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf - The Court directing to decide reference expeditiously - Petitions dismissed - Constitution of India, 1950, Article 226
1. By these petitions under Article 226 of the Constitution of India, the petitioners have challenged the common order dated 15th April, 2013 passed by the respondent No.1 – Designated Officer whereby the application made by the petitioners for restraining the second respondents in each of the petitions from taking part in any meeting of the Corporation be it General Board and/or any Committee or Sub-Committee in any manner whatsoever including the meeting scheduled to be held on 17th April, 2013 has been rejected. Since the controversy involved in each of these petitions is common, the same were taken up for hearing together and are disposed of by this common judgment. For the sake of convenience, reference is made to the facts as appearing in Special Civil Application No.7124/2013.
2. The facts as averred in Special Civil Application No.7124 of 2013 are that the Gandhinagar Municipal Corporation (hereinafter referred to as “the Corporation”) came to be constituted under the provisions of the Gujarat Provincial Municipal Corporations Act, 1949 (hereinafter referred to as “the BPMC Act”). The Corporation comprised of thirty three Councillors and the elections were held on 21st April, 2011. Both, the Indian National Congress (hereinafter referred to as “the Congress”) as well as the Bharatiya Janata Party (the party in power in the State of Gujarat), set up their official candidates in the said election. Eighteen candidates set up by the Congress got elected whereas fifteen candidates set up by the Bharatiya Janata Party (hereinafter referred to as “the BJP”) also got elected. The first petitioner is stated to be the leader of the Congress in the Gandhinagar Municipal Corporation whereas the second petitioner is the President of the Gandhinagar City and Congress Committee. The first meeting of the newly elected councillors was convened on 7th May, 2011 wherein one Mr. Subhashbhai Laxmanbhai Pandav, the second respondent, who was elected from Ward No.3, was elected as Corporator of the Corporation. After assuming charge as Corporator of the Gandhinagar Municipal Corporation, the respondent No.2 herein remained loyal to the Congress, however, subsequently he changed his loyalty and joined hands with the BJP on 2nd November, 2012 and since then has become a member of the said party. Since the second respondent had defected from the Congress since about six months and had joined the BJP and was supporting the same, according to the petitioners, he had incurred disqualification on the ground of defection under the provisions of the Gujarat Disqualification of Members of Local Authorities for Defection Act, 1986 (hereinafter referred to as “the Act”). The petitioners preferred an appeal being Appeal No.9/2012 before the respondent No.2 – Designated Officer under sections 3, 4 and 5 of the Act. However, since the petitioners had not complied with the requirement of sub-clause (iv), (v) and (vi) or rule 6 of the Gujarat Provision for Disqualification of Members of Local Authorities for Defection Rules, 1987 (hereinafter referred to as “the Rules”), the respondent No.1 dismissed the appeal preferred by the petitioners vide order dated 9th January, 2013.
3. The General Meeting of the Executive Committee of the Gandhinagar Municipal Corporation was scheduled to be convened on 19th February, 2013 at 2:30 p.m. in the meeting hall of the Gandhinagar Municipal Corporation. The petitioner No.2 had served a copy of the whip, viz., Order 1 and Order 2 to the Secretary of the Gandhinagar Municipal Corporation vide communication dated 18th February, 2013. Such mandate was also served upon the second respondents in each of the petitions. Accordingly, the said respondents were mandated to vote in favour of the Budget passed in the Standing Committee as per the orders of the first petitioner and to vote against the Budget presented by the Commissioner. It appears that the second respondents in Special Civil Application No.7124/2013 and 7125
