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2019 Supreme(Guj) 427
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
S.R.Brahmbhatt, A.G.Uraizee, JJ.
Shailendrasinh Bhikhusinh Bihola – Petitioner
Versus
State of Gujarat & others – Respondents
R/Special Civil Application No. 22388 of 2017 With Civil Application (For Clarification) No. 1 of 2018 With Civil Application (For Joining Party) No. 1 of 2019 In R/Special Civil Application No. 22388 of 2017
Decided On : 10-04-2019
For the Petitioner:Mr. Yatin Oza, Sr. Advocate With Mr. Cp Champaneri
For the Respondent:Mr. Pk Jani, Learened Aag With Assisted By Mr. Amit Barot, Agp, Mr. Ansin Desai, Sr. Advocate With Mr. C B Upadhyaya
Headnote:
Constitution of India - Articles 226 and 227 - Defection Act, 1986 - Sections 3, 19, 33, 34 35 - 6 - 3 - petitioner – councillor of Gandhinagar Municipal Corporation and applicant in Dispute Application before the Designated Authority under the provisions of The Provision for Disqualification of Members of Local Authorities for Defection Act wherein the disqualification of respondent hereinabove was claimed and which application was rejected, has approached this Court by way of this petition with following prayers - Court may kindly be pleased to issue a writ of mandamus or any other appropriate writ order or direction in the nature of same and be pleased to quash and set aside the impugned judgment and order dated passed in Reference Application passed by the respondent at Annexure - Court may kindly be pleased to issue a writ of mandamus or any other appropriate writ order or direction in the nature of same and be pleased to declare the respondent disqualified under Section of The Provision for Disqualification of Members of Local Authorities - Held, Advocate appearing on behalf of respondent is concerned at the outset, it is required to be noted that after the impugned order is passed on the original application/complaint made by respondent and the petitioners are declared disqualified thereafter it will not be open for respondent to withdraw the complaint/original application and therefore on the ground that now subsequently and after the impugned is order passed by the designated Officer disqualifying the petitioner under Section of the Act the impugned order is not required to be set aside on the ground that now respondent – Original complainant/applicant proposes and/or withdraws the original application - Decision of the Supreme Court in the case of is required to be referred - In the said decision Supreme Court has specifically observed and held that in a proceeding of disqualification on the ground of defection there is no list between the person moving the petition and the member of the House who is alleged to have incurred a disqualification - It is submitted that it is no adversarial kind of litigation where he may be required to lead evidence - It is further observed that even if he withdraws the petition it will make no difference as a duty is cast upon the Chairman or the Speaker to carryout the mandate of the constitutional provision the Tenth Schedule - Under the circumstances on the ground that now respondent – Original complainant – Original applicant proposes to withdraw and/or withdraws the original application/complaint, the impugned order passed by the designated Officer disqualifying the petitioners Members under Section is not required to be set aside - Present case are different - We do not dwell elaborately upon it - Resultant effect of resignation is that now the petition has become infructuous and therefore - petitioner urges the Court that the interim relief granted vide order dated by this Court be continued till further period of weeks - Said request of learned advocate appearing for the petitioner, is strongly opposed by the counsels for the respondents and it was submitted that as per Rule of the Provincial Municipal Corporation Rules the result was even if can kept in sealed cover then it would not have any material effect and therefore - It is absolutely clear that when the result is clearly capable of being spelt out as it was on account of the admission of the Rules, by raising hands the continuation of stay would create serious prejudice to the elected member who has been elected but not functioning as such, and this situation in any way not permissible or perpetrated and hence this Court is unable to accept the request of and is of the view that interim relief cannot be extended - Civil Application and are disposed of accordingly - petition is disposed.
S.R.BRAHMBHATT, J.
1. The petitioner – councillor of Gandhinagar Municipal Corporation and applicant in Dispute Application No. 12 of 2016 before the Designated Authority under the provisions of The Gujarat Provision for Disqualification of Members of Local Authorities for Defection Act, 1986, wherein, the disqualification of respondent no.3 hereinabove was claimed and which application was rejected, has approached this Court by way of this petition with following prayers :
“(A) This Hon'ble Court may kindly be pleased to admit and allow the present petition;
(B) This Hon'ble Court may kindly be pleased to issue a writ of mandamus or any other appropriate writ order or direction in the nature of same and be pleased to quash and set aside the impugned judgment and order dated 19.08.2017 passed in Reference Application No. 12 of 2016 passed by the respondent no. 2 at Annexure- A to the present petition;
(C) This Hon'ble Court may kindly be pleased to issue a writ of mandamus or any other appropriate writ order or direction in the nature of same and be pleased to declare the respondent no. 3 disqualified under Section 3 of The Gujarat Provision for Disqualification of Members of Local Authorities For Defection Act, 1986;
(D) This Hon'ble Court may kindly be pleased to grant any other and further relief deemed fit in the interest of justice;”
Thus, being aggrieved and dissatisfied with the order dated 19.8.2017 passed by the Designated Authority under The Gujarat Provision for Disqualification of Members of Local Authorities for Defection Act, 1986, present petition is filed under Articles 226 and 227 of the Constitution of India, on the ground mentioned in the memo of petition.
2. The facts in brief as could be gathered from the memo of petition and rival submissions deserve to be set out as under :
2.1 The petitioner was an elected member (Councillor) of the Gandhinagar Municipal Corporation. The Gandhinagar Municipal Corporation has total seat of 32 members, out of which, one is to be elected as Mayor and another as the Deputy Mayor. The two major parties namely The Indian National Congress Party and Bhariya Janta Party and secured equal number of seats i.e. 16-16 each in the Corporation and petitioner and respondent no. 3 both belonged to The Indian National Congress Party.
2.2 The first General meeting of the Corporation, was to be convened on 06.05.2016 and for the same the agenda were issued to all the members (Councillors) on 27.04.2016.
2.3 The Indian National Congress Party issued a whip to the members of the Corporation elected on it's symbol to remain present in the meeting and to vote in favour of the present petitioner for the post of Mayor and to vote in favour of other persons for the post of Deputy Mayor and members of the standing committee. Each and every elected municipal Councillor (Corporator) was served with a copy of the whip/mandate.
2.4. The petitioner has contended that there was a clear whip issued by the petitioner's party for enjoining upon their elected members to remain present in the meeting and cast votes in favour of the parties for the post of Mayor and Deputy Mayor as set up by the party. This whip was received by all the elected members.
2.5. It is submitted that there was first General meeting of The Gandhinagar Municipal Corporation, to be convened on 6.5.2016 and for the same the agenda was issued to all the members (Councillors) on 27.04.2016. The Indian National Congress Party issued a whip to the members of the Gandhinagar Municipal Corporation elected on it's symbol to remain present in the meeting and to vote in favour of the present petitioner for the post of Mayor and to vote in favour of other persons for the post of Deputy Mayor and members of the standing committee.
2.6. It is submitted that as per the provisions contained in Rule 10A of the Defection Rules members of the Gandhinagar Municipal Corporation elected on the symbol of the political party while attending any meeting of the
