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2023 Supreme(Guj) 520
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
ARAVIND KUMAR, ASHUTOSH SHASTRI, JJ.
DAXABEN MITESHKUMAR NATHANI – Appellant
Versus
STATE OF GUJARAT – Respondent
Letters Patent Appeal No. 1132 of 2022, Special Civil Application No. 1373 of 2021, Civil Application (For Stay) No. 1 of 2022
Decided On : 06-02-2023
Advocate Appeared:
For the Appellant : N.K. MAJMUDAR.
For the Respondents: K.M. ANTANI, C.B. UPADHYAYA, KIRTAN H. MISTRY.
Violation of party mandates and voluntary departure from the original party can lead to disqualification under the Anti Defection Act.
Headnote:
Anti Defection Act - Disqualification of Members of Local Authorities - Gujarat Provision for Disqualification of Members of Local Authorities for Defection Act, 1986 - Section 3(1)(a)
Fact of the Case:
The case involves the disqualification of a member of a municipality under the Anti Defection Act for defecting from the Indian National Congress (INC) to the Bharatiya Janata Party (BJP) and violating party mandates.
Finding of the Court:
The court found that the writ applicant had violated the provisions of Section 3(1)(a) of the Anti Defection Act by voluntarily leaving the INC and joining the BJP, and by contesting and voting in favor of the BJP candidate despite being elected on the symbol of INC.
Issues: The issues included whether the writ applicant violated party mandates, voluntarily left the original party, and breached the provisions of the Anti Defection Act.
Ratio Decidendi: The court held that the writ applicant's actions constituted a violation of the Anti Defection Act, leading to her disqualification as a member of the municipality.
Final Decision: The appeal was dismissed, affirming the order of disqualification under the Anti Defection Act.
JUDGMENT :
ARAVIND KUMAR, J.
1. The order dated 29.3.2022 passed in Special Civil Application No. 1373 of 2021 is under challenge in this intra-court appeal.
2. We have heard the arguments of Mr. N.K. Majmudar, learned advocate appearing for the appellant, Mr. K.M. Antani, learned AGP for respondent No. 1 and Mr. C.B. Upadhyaya, learned advocate appearing for Mr. Kirtan H. Mistry for respondent No. 3. Respondent Nos.2 and 4 are served and unrepresented.
3. The issue in this appeal relates to the decision of the designated authority under the provisions of the Gujarat Provision for Disqualification of Members of Local Authorities for Defection Act, 1986 (hereinafter referred to as ‘Anti Defection Act’) rendered on 15.1.2021 by respondent No. 3 authority whereunder appellant herein (hereinafter referred to as ‘writ applicant’) has been disqualified as member of Devgadh Baria Municipality.
4. Facts in brief which has led to the filing of this appeal can be crystallised as under:
BACKGROUND OF THE CASE:
5. During December 2017, election of Devgadh Baria Municipality was declared and came to be held on 19.2.2018 for filling up 24 posts of the councillors. Writ applicant participated in the said election by filing nomination and contested the election on the symbol of Indian National Congress (hereinafter referred to as ‘INC’) and was declared as elected as a member of the municipality from Ward No. 4. Accordingly, the gazette notification came to be issued on 19.2.2018.
6. The election for the post of President and Vice President of the said municipality was held on 6.6.2018 for the period upto 25.8.2020. A whip came to be issued to all the elected members of INC to vote in favour of the official candidate namely the writ applicant who had contested for the post. On account of said mandate/whip having been violated, the Gujarat Pradesh Congress Samiti suspended the writ applicant from the party (INC) for a period of 6 years on the ground that she had breached the mandate/whip issued by the party and had voted against instructions of the political party (INC) to which the writ applicants belonged to.
7. Respondent No. 3 herein filed an application to disqualify the writ applicant and other 6 members on the ground that they belonged to INC party and had not voted as per the instructions of the President of INC. Said application came to be rejected by the designated authority by order dated 20.6.2019. This order is said to have attained finality and no contra-material has been placed in this regard.
8. The Collector, Dahod issued a meeting notice fixing the agenda for election of candidates for the post of President and Vice President of Devgadh Baria Municipality for the second term namely on completion of first term in which the writ applicant had been elected as President by issuance of a meeting notice dated 18.8.2020.
9. In the meanwhile, it is stated that writ applicant herein had joined Bharatiya Janata Party (hereinafter referred to as ‘BJP’) by submitting an application Form No. 0053361 and was admitted to the said party according to the list of members announced by the President of City BJP, the name of writ applicant was entered.
10. In response to the meeting notice dated 18.8.2020, writ applicant filed her nomination to contest for the post of President of Devgadh Baria Municipality by filing her nomination as a candidate of INC party. A whip or mandate came to be issued by BJP on 25.8.2020 to its members including writ applicant to vote in favour of the official nominee of BJP. In the election held to the posts of President and Vice President for which the writ applicant had contested for the post of President against Smt. Charmiben Neel Soni resulted in both the candidates securing equal votes viz. 12 votes each. On account of tie between two candidates, the election officer viz. Chief Officer drew chits (lots) as per Rule 9 of the Gujarat Municipalities (President and Vice President) Election Rules, 1964 in view of both candidates
