Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Guj) 797

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
ASHUTOSH J. SHASTRI, J.
Bhanumatiben Ramsinh Vaghela - Appellant
Versus
Designated Officer, Urban Development And Urban Housing Department - Respondent
R/Special Civil Application No. 2269 of 2021 With Civil Application (For Stay) No.1 of 2021
Decided ON : 22-10-2021

Advocates:
Advocate Appeared:
For the Appellant :Mr Hmparikh, Senior Advocate With Mr Deepak P Sanchela
For the Respondent:Mr Chitrajeet Upadhyay, Advocate For Mr Kirtan H Mistry Ms Nisha Thakore

Point of Law: High Court in exercising the jurisdiction under Article 227 of the Constitution of India was totally erroneous.

Headnote:
Constitution of India, 1950 - Article 226 and 227 - Defection Act - U.P. Act, 1972 - Section 18, 12(1) (b) - Election - Power to Issue Whip - Whether whip is issued and got served upon them - Whether these petitioners have made any attempt to secure whip or inquire about it during course of meeting or before it - Whether a mandate is issued and obtain same as required under Rule 10 of Rules, if not served on him - Whether it is a concoction or fabrication is a seriously disputed - Whether a valid whip has been issued by political party or not.
Finding of the Court:
Defence which has been raised by respondents from very beginning is with regards to service of whip - Considering provisions of Rule 10 and judgment of this Hon'ble Court in case of Pragneshkumar Jayantilal Soni (supra), it is incumbent upon councilors to verify whether a valid whip has been issued by political party or not and if such a whip has been issued it is incumbent upon members to obtain copy of such a whip - It has been specifically mentioned that first part of Rule 10(A) is mandatory and second part of Rule 10(A) is directory - Since stand taken to dispute issuance of or concoction of whip, same being highly disputed question of fact, Court would not like to enter on said aspect, since prima facie, it appears that authority has considered further aspects and has come to a specific conclusion - In present case, Court is of considered view, that approach of High Court in exercising jurisdiction under Article 227 of Constitution of India was totally erroneous - Learned judge ignoring Achal Misra (supra), which is a binding precedent, relies on an order of one paragraph of two learned judges of this Court while holding that revision was not maintainable - Court, therefore, are of considered view, that exercise of jurisdiction by High Court under Article 227 in present case was patently unwarranted and unjustified - In view of aforesaid circumstances and on basis of undisputed conduct of petitioners and in view of detailed order which has been passed, this Court is of clear opinion that no case is made out by petitioners to call for any interference.
Result: Petition dismissed.

JUDGMENT :

1. By way of this petition under Article 227 of the Constitution of India, two petitioners have come forward to challenge the legality and validity of the impugned order dated 15.1.2021 passed by learned Designated Authority in Dispute Application No.16 of 2020.

2. Brief facts which have given rise to the present petition are that General Election of Kheda Municipality was conducted in the year 2018 and present petitioners stood elected and the election for second term of the President and Vice president came to be followed on 2.9.2020. The petitioners say that the authority was given by BJP Party President, Gujarat State and the power was given to one Keshaji Chauhan, BJP District President, Banaskantha to issue whip on 2.9.2020 and according to the petitioners, said so-called whip came to be issued by Keshaji Chauhan, District President BJP on the very same day on 2.9.2020. In the meeting for electing President and Vice President held at 12.00 p.m. in the meeting room, there was no scope to collect whip even looking to the letter of Shri C.R. Patil as well as the whip issued by Shri Keshaji Chauhan. According to the petitioners, three line whip was given on the very same day on 2.9.2020, meeting was also followed on that very day on 2.9.2020 at 12.00 p.m. at Kheda Municipality and as such, looking to the abovementioned countdown, there was no question at all either to serve whip or to collect whip because there is no time space left between since the power given to Devusinh Chauhan. The petitioners have requested the Party President of Kheda to give whip for meeting dated 2.9.2020, but unfortunately, the petitioners were never served with the copy of the whip. Further, the State President has given power to Keshaji Chauhan on 2.9.2020, having its office at Shri Kamlam, Coba Circle, Gandhinagar and the office of Bhartiya Janta Party, Kheda having address at Kamlam, Nadiad-Dabhan Road, Yogi Nagar, Taluka Nadiad, District Kheda.

3. The petitioners have submitted that one show cause notice was issued by the Party president on 2.9.2020 as to why the petitioners should not be suspended on the ground of their conduct was against the interest of the party, to which a detailed reply was submitted. The Dispute Application No.16 of 2020 came to be filed by respondent No.2- Dineshbhai Daklsukhbhai Rathod before the Designated Authority in respect of the alleged cross-voting of the petitioners. It is the case of the petitioners that despite the explanation having been given, the authority was pleased pass the impugned order on 15.1.2021. To substantiate the case, an averment is made to the effect that in an identical Dispute Application No.2 of 2020 on 11.8.2020, learned Authority passed an order on the ground that the name given by the District President had no authority in law and by raising multiple contentions, present petition is brought before the Court.

4. The Court on previous occasions issued notice vide order dated 9.2.2021 and thereafter, the Draft Amendment was moved, which came to be permitted vide order dated 15.3.2021 and by an order, the notice issued to the newly added party. The said order reads as under:-

1. Heard learned senior advocate Mr.H.M.Parikh with learned advocate Mr.Deepak Sanchela for the applicants – original petitioners, learned Assistant Government Pleader Ms.Jyoti Bhatt for Respondent No.1 and learned advocate Mr.Cheetrajeet Upadhyay with learned advocate Mr.Kirtan Mistry for the respondent no.2 through video conference.

2. Learned advocate Mr.Deepak Sanchela has tendered draft amendment. The same is taken on record, and is allowed. The applicants are directed to carry out the same forthwith.

3. Learned senior advocate Mr.Parikh submits that if this Court hears the main matter finally on the returnable date of main Special Civil Application and also observes that the result of the election, which is scheduled today, would be subject to final outcome of the main matter being Special Civil Application

Click Here to Read the rest of this document

2021 Supreme(Guj) 797

Point of Law: High Court in exercising the jurisdiction under Article 227 of the Constitution of India was totally erroneous.

Cases Referred (18)