ORAL ORDER

1. This petition under Article 226 of the Constitution of India is filed for quashing and setting aside the decision of the Designated Authority under the provisions of the Gujarat Provision for Disqualification of Members of Local Authorities for Defection Act, 1986 (herein after referred to as the “Anti Defection Act”) in Dispute Application No.15 of 2020, whereby the petitioner was held to be disqualified as Member / Councilor of Devgadh Bariya Municipality and also as the President of the Municipality.

2. It is pertinent to relate the manner in which the matter has proceeded, whereby order dated 27.01.2021 granting ad-interim relief in terms of Paragraph No.8(B) and stayed the implementation and operation of the impugned judgment dated 15.01.2021 by the Designated Authority and was a subject matter of challenge before the Division Bench in Letters Patent Appeal No.191 of 2021. The Division Bench has recorded as under:-

“2. With the consent of the learned counsels of the parties, we dispose of this appeal with a request to the learned Single Judge to decide the Special Civil Application No. 1373 of 2021 which is already fixed for 2nd March, 2021, either on the said date or as expeditiously as possible subject to cooperation that may be extended by both the learned counsels for the parties which they have assured before us that they would do. Mr. Upadhyay, learned counsel for the appellant states that the appellant would file counter affidavit within a week from today, respondent No.1 may file rejoinder within three weeks thereafter. This time slot has been given so as to expedite the disposal of the Special Civil Application. In case any of the parties moves an amendment application that would be dealt with accordingly by the learned Single Judge.

3. The interim direction issued by the learned Single Judge dated 27.01.2021 in terms of Para 8(B) of the petition will remain in abeyance. It is further provided that any observations made in the order dated 27.01.2021 will not influence the learned Single Judge in taking the final decision on merits wherein all the issues would remain open to both the parties.”

3. It appears that pursuant thereto subsequent development has taken place where the election to the post of President was held on 24.03.2021 and the new President was elected with vote as 23:1 in the Municipality with the total 24 members, and therefore, now a newly elected President is already elected and functioning as such.

4. It is the case of the petitioner that the Designated Authority has erroneously relying upon certain events treated the petitioner to have incurred disqualification as a member, but according to the petitioner, no such event had taken place.

5. Learned advocate for the petitioner submitted that the petitioner had filled up nomination form for the post of President of the Municipality in a meeting presided by Deputy Collector of Devgadh Bariya. The name was seconded by a Councilor of the Municipality from another political party.

6. It is the case of the petitioner that the petitioner, who was elected as a member on the symbol of Indian National Congress, her name was reflected in the mandate of Bhartiya Janta Party (herein after referred to as the “BJP”) for the name for being elected as the President of the Municipality. Considering these two events, the respondent no.3 has filed Dispute Application No.15 of 2020 seeking declaration from the Designated Authority that the petitioner no more is qualified to continue as a Member/ Councilor and President of Municipality. Before the Designated Authority, the respondent no.3 had contended that the petitioner was elected as a President of the Municipality with the support of the members of the rival party though the petitioner was elected as a Councilor from Indian National Congress, and therefore, by the conduct, the petitioner had voluntarily given up her membership of Indian National Congress and had incurred disqualification, as provided for in