Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Guj) 858

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
VIKRAM NATH, BIREN VAISHNAV, JJ.
PRITIBEN UMESHKUMAR SONI – APPELLANT
Versus
BRINDABEN NILANJKUMAR SHUKLA - RESPONDENT
LETTERS PATENT APPEAL NO. 735 of 2021 In R/SPECIAL CIVIL APPLICATION NO. 10615 of 2021 With CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
Decided on : 27-08-2021

Advocates Appeared:
For the Appellant : MR.C.B.UPADHYAYA, MR NAMAN K BRAHMBHATT
For the Respondent: MS.SHRUTI PATHAK, MR BM MANGUKIYA, MS BELA A PRAJAPATI

Point of law: Disqualification proceeding, if evidence of any witness rendered either on oath or on affidavit, is sought to be relied upon by the Designated Officer to pass any order adverse to a member, such member would have the right to seek cross examination of such a witness.

Headnote:
Gujarat Provision for Disqualification of Members of Local Authorities for Defection Act, 1986 - Section 3 - Anti Defection Act, 1985 - Section 3 - Gujarat Provisions of Disqualification of Members of Local Authorities For Defection Rules, 1987 - Rule 7 - Defection Rules, 1985 - Rule 10A and 8 - Rules of natural justice - Appeal has been filed challenging oral order passed in Special Civil Application filed by respondent - Whether Designated Authority could have rejected application of original petitioner before us for cross examination of dispute applicant on twin grounds namely that there was no provision for cross examination of witnesses as proceedings were summary in nature - Whether conduct of original petitioners- respondent before Designated Authority in filing an application for cross examination was with a view to delay proceedings before it - Whether applicant upon whose petition disqualification proceedings have been initiated should be permitted to be cross examined - Whether person aggrieved was given a fair deal by authority or not - Original petitioner is required to be provided an opportunity of cross-examination.
Findings of the Court: Division Bench made it clear that even in a disqualification proceeding, if any witness rendering evidence either on oath or an affidavit is sought to be relied upon by the Designated Officer to pass any order adverse to a member, such member would have a right to seek cross examination of such a witness - In our opinion, therefore, fact that finding of Designated Authority in order impugned before us in the petition which, records that being a quasi judicial authority and when no witness was produced by applicant and therefore no cross examination was required is contrary to law laid down by Division Bench of Court.
Result: Appeal dismissed of

JUDGMENT :

(BIREN VAISHNAV J.

1. This Letters Patent Appeal has been filed by the appellant who was the respondent no.1 in Special Civil Application No.10615 of 2021. The appeal has been filed challenging the oral order dated 28.07.2021 passed in Special Civil Application No.10615 of 2021 filed by the respondent no.1 - Brindaben Nilanjkumar Shukla. The order under challenge dated 28.07.2021 reads as under:

“Heard Mr. B.M. Mangukiya, learned advocate appearing for the petitioner and Mr. C.B. Upadhyaya, learned advocate appearing for the respondent no.1 on caveat.

Issue notice, returnable on 3.8.2021.

In the meantime, it will be open for the petitioner to make an application to the learned Designated Authority for an adjournment. Let the same be considered.”

2. For the sake of convenience the appellant Pritiben Umeshkumar Soni shall be hereinafter referred to as ‘the applicant’. This is because she had filed Dispute Application No.13 of 2020 before the Designated Authority praying that the respondent no.1 herein be disqualified under the provisions of Section 3 of the provisions of Gujarat Provision for Disqualification of Members of Local Authorities for Defection Act, 1986 (hereinafter to be referred to as ‘the Defection Act’ for short). The respondent no.1 herein was the original respondent whose disqualification was sought before the Designated Authority.

3. Facts in brief are as under:

3.1 The general elections of the Lunawada Municipality took place in the year 2018. It was the case of the dispute applicant (appellant herein) in Dispute Application No.13 of 2020 before the Designated Authority that the municipality consisted of 28 councilors. The Bharatiya Janata Party had 11 candidates elected whereas 14 candidates set up by the Indian National Congress got elected. Two independent candidates also got elected. The respondent of the Dispute Application was the sole candidate of the NCP who got elected.

3.2 It was the case of the dispute applicant that the first meeting of the elected councilors was held on 27.02.2018. On 24.08.2020 a general meeting of the municipality was convened for the elections of the president and the vice president on the basis of an agenda notice dated 14.08.2020. The Bharatiya Janata Party issued a mandate to its members for electing the president of the municipality. It was the case of the applicant before the Designated Authority that the Bharatiya Janata Party issued a mandate to elect her as the president of the Municipality. The respondent applicant declared herself as a candidate for the post of the president of the municipality wherein she secured 19 voted and the candidate set up by the Bharatiya Janata Party i.e. the dispute applicant secured only 9 votes. It was the case of the dispute applicant before the Designated Authority that the respondent had violated the party mandate and voted against it by contesting elections though she was set up on the reserved symbol of the Bharatiya Janata Party. She, against the mandate of the party, stood for the elections as an NCP candidate and won the elections.

3.3 In the Dispute Application filed before the Designated Authority under Section 3 of the Anti Defection Act, it was the case of the dispute applicant that the respondent had voluntarily joined the Bharatiya Janata Party on 27.08.2019. That, when the meeting of the Municipality was convened on 24.08.2020, though the respondent joined the Bharatiya Janata Party, she against the mandate of the party stood for the post of the President and won the election on the seat of the Nationalist Congress Party and committed a breach of the mandate.

3.4 The Dispute Application No.13 of 2020 was filed by the appellant herein on 16.09.2020. The Designated Authority issued notice on 18.09.2020 asking the respondent-applicant to remain present on 01.10.2020. On an application being made to engage an advocate, the hearing was adjourned to 15.10.2020. The date of hearing was thereafter fixed on 17.10.2020 and 29.10.2

Click Here to Read the rest of this document