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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Ashutosh J. Shastri, J.
Smt. Heenaben Mukeshbhai Bhoi – Petitioner
Versus
Smt. Pritiben Umeshkumar Soni – Respondent
R/Special Civil Application No. 12299 of 2021
Decided On : 29-10-2021
Constitution of India, 1950 - Article 226 and 227 - Defection Act, 1986 - Section 3, 6 - Defection Act Rules, 1987 - Rule 7 and 10 – Petition is that general election of Lunavada Municipality took place in year 2018 and petitioners were set up as official councilors of Bhartiya Janta Party - Petitioner was set up as a candidate of BJP from Ward, whereas petitioner was set up as a candidate from Ward and petitioner was set up as a candidate of BJP from Ward and was declared as selected by competent authority appointed by State Election Commission.
Findings of the court- Exercise of discretionary power of judicial review under Article 226 of Constitution, High Court might interfere with administrative matters only if decision is violative of fundamental or basic principles of justice and fair play or suffers from any patent or flagrant error - It is true that High Court might rectify, in exercise of its power of judicial review, an error of law or even an error of fact, for sufficient reasons, if error breaches fundamental or basic principles of justice or fair play or if error is patent and/or flagrant, but not otherwise - However, even in cases where High Court finds an apparent factual error which goes to root of decision, appropriate course of action would be to give opportunity to authority concerned to rectify error - It is only in rarest of cases, where factual error is so obvious that it is rectifiable by Court itself, that Court might, to prevent delay and consequential denial and/or miscarriage of justice, rectify the error - It is not for High Court, exercising jurisdiction under Article 226 of Constitution of India to embark upon a comparative assessment of suitability of different candidates for appointment of a dealer of a retail outlet - High Court, in our view, should not have decided factual question of whether land of respondent in view of reports of concerned Additional Collector, District Magistrate and Circle Officer to effect that land of respondent was in Falka block and not within Giriyama - High Court patently erred in brushing aside reports of Revenue Authorities and arriving at a different finding.
Result - Petition disposed of
JUDGMENT :
1. By way of this petition under Article 226 of the Constitution of India, the petitioners have challenged the legality and validity of the impugned order dated 31.7.2021 passed by respondent No.1 authority in Application No.12 of 2020, whereby the petitioners have been disqualified as Councilor of Lunavada Municipality under the provisions of the Gujarat Provisions for Disqualification of Members of Local Authorities for Defection Act, 1986 (Act No.23 of 1986) (hereinafter to be referred as ‘the Act’) and the Rules framed thereunder.
2. The background of facts of the present petition is that the general election of Lunavada Municipality took place in the year 2018 and the petitioners were set up as official councilors of Bhartiya Janta Party. The petitioner No.1 was set up as a candidate of BJP from Ward No.4, whereas petitioner No.2 was set up as a candidate from Ward No.5 and petitioner No.3 was set up as a candidate of BJP from Ward No.7 and was declared as selected by the competent authority appointed by the State Election Commission. The result of Lunavada Municipality was declared on 19.2.2018.
3. The Municipality is consisting of 28 councilors, out of which, 11 candidates were set up by Bhartiya Janta Party, who got elected, whereas 14 candidates set up by Indian National Congress Party also got elected, whereas 02 candidates were independent who were elected in afore-mentioned election. One sole candidate of NCP also got elected and it was as such a fractured mandate. In this election, the Indian National Congress Party was single largest party, whereas the Bhartiya Janta Party was the second largest party in the election of Lunavada Municipality. It is the case of the petitioners that the first meeting of newly elected councilor of Municipality was held on 27.2.2018 and in the said meeting, one Mr. Jayendrasinh Solanki was elected as a President, who belonged to Indian National Congress Party. The term of the Municipality is of 5 years, but the President and Vice President tenure, according to the petitioners, is of 2 ½ years and since the President was elected in September 2018, the terms of the President and Vice President and members of various committees were expiring in August 2020.
4. A general meeting of the Municipality was convened for electing the President and the Vice President by circulating Agenda Notice dated 14.8.2020 and the meeting was fixed on 24.8.2020.
5. It is the case of the petitioners that the Bhartiya Janta Party issued a Mandate to its members for electing the President of the Municipality and the said mandate was issued by Shri C.R. Patil, President of Gujarat Unit of Bhartiya Janta Party. In the said meeting, Smt. Brindaben Shukla was declared herself as a candidate for the post of President of the Municipality. The election was carried out by the Presiding Officer. Said Smt. Brindaben Shukla secured 19 votes and candidate set up by Bharatiya Janta Party i.e. respondent No.1 secured 09 votes only and as such Smt. Brindaben Shukla was declared as President. So far as the post of Vice President is concerned, the candidate set up by BJP was also not elected and Mrs. Meenaben Rakeshbhai Pandya was declared in the said election as Vice President. So, in the said meeting on 24.8.2020, Smt. Brindaben Shukla was declared as elected President, whereas, Mrs. Meenaben Rakeshbhai Pandya was declared as Vice President. In the said meeting, out of 11 councilors of BJP, 03 councilors defied the mandate by political Party of respondent No.1, hence on 28.9.2020, a show cause notice was issued upon the petitioners calling upon them within a period of 7 days to explain as to why the petitioners shall not be removed from the party since they have committed breach of the mandate of the party, to which they belong. Simultaneously, the respondent No.1 Smt. Pritiben Umeshkumar Soni was set up as candidate for President of Municipality and for which, a mandate was issued, but the petitioners have defied the
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High Court in exercising the jurisdiction under Article 227 of the Constitution of India was totally erroneous.
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Election - Disqualification on ground of defection - Petitioner has violated the whip and invited the impugned order. Violation alleged in terms of Section 4 with regard to 24 hours as held by this C....
Elected councillors can be disqualified for abstaining from votes if they fail to prove lack of proper service of a whip under anti-defection laws, as intent and knowledge of proceedings are crucial ....
There can be many inferences for voluntarily giving up the membership even if one has not resigned; the case at hand is one where the petitioners have all resigned, therefore, no inference need be dr....
The main legal point established in the judgment is the requirement for clear communication of the direction issued by a political party to its councilors to invoke the provisions of the Karnataka Lo....
Service of a political party whip is deemed effective under the General Clauses Act when properly addressed and posted, presuming the recipient's awareness of its contents.
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