SCA/9003/2007 1/58 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9003 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= PARBATBHAI MANSHIBHAI VANARIYAMUNICIPAL COUNCILOR AND DY. - Petitioner(s) Versus P.V.TRIVEDI OR HIS SUCCESSOR IN OFFICE & 2 - Respondent(s) ========================================================= Appearance : MR TUSHAR MEHTA for Petitioner(s) : 1, MR DILIP B RANA for Respondent(s) : 1, None for Respondent(s) : 2, MS DS PANDIT, LD.ASST.GOVERNMENT PLEADER for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date : 28/03/2008 CAV JUDGMENT 1. By way of filing present petition, the petitioner has challenged the order dated 25th January 2007 passed by the respondent no.1 in the capacity of a designated authority under Section 6 of the Gujarat Provision for SCA/9003/2007 2/58 JUDGMENT Disqualification of Members of Local Authorities for Defection Act, 1986 (hereinafter referred to as 'the Act') and has prayed for issuance of appropriate writ, order or direction, invoking jurisdiction vested in the Court under Article 226 of the Constitution of India. By way of the order impugned in the petition, the respondent no.1 under Section 8 of the Act has declared that the petitioner is disqualified from continuing as a Municipal Councellor of Jamkhambhalia Municipality, District Jamnagar. 2. The say of the petitioner is that he is the duly elected member of Jamkhambhalia Municipality (hereinafter referred to as 'the Municipality') and he is the Councillor of the Municipality after elections conducted in the year 2005. The strength of the members of the General Body of the Municipality is of 27 Municipal Councillors; and the grievance of the petitioner is that on an application made by the respondent no.2 who is one of the elected candidates sponsored by the Bhartiya Janta Party (hereinafter referred to as 'the SCA/9003/2007 3/58 JUDGMENT BJP') to the respondent no.1, the petitioner has been wrongly declared as disqualified under the Act. The finding recorded by the respondent no.1 is based on incorrect appreciation of facts available on record and the same is arrived at in violation of the mandatory provisions of the Act. The legality and propriety of the order is challenged on various grounds and it is prayed that this Court may quash and set aside the impugned order passed by the respondent no.1 and may declare the petitioner as a member of the BJP; and may also issue appropriate other directions to the respondents; meaning thereby, restoring the status of the petitioner as Municipal Councillor. 3. It is necessary to state the facts of the present case placed by the petitioner in nutshell so as to appreciate the oral submissions made by Shri Tushar Mehta, learned counsel appearing for the petitioner, and the stand taken by the respondents. The respondent no.2 is the person who had approached the respondent no.1 by moving an application to SCA/9003/2007 4/58 JUDGMENT the respondent no.1 who is appointed as per the scheme of Section 3 of the Act. There is no reply affidavit filed by respondent no.1. However, the respondent no.2 has filed his reply affidavit along with annexures which is at page no.65 to the petition. It is the say of the petitioner that a Special General meeting of the Municipality was convened on 24th July 2006. The petitioner fell ill on 21st July 2006 and was under medical treatment at the Hospital at Jamnagar upto 25th July 2006 and, therefore, he could not attend the meeting convened on 24th July 2006. The petitioner had intimated the competent authority of the Municipality about his inability to attend the meeting dated 24th July 2006. Thereafter, another meeting of the Municipality was convened on 29th July 2006. However, the respondent no.2 and other members elected as members belonging to BJP carved out a design to remove the petitioner. It is claimed by the respondent no.1 that before the meeting, the person authorized by the BJP had issued a mandate to each councellor elected as the BJP candidate to cast vote in the pattern SCA/9003/2007 5/58 JUDGMENT of the leader of the party in the House. It is not a matter of dispute that the votes were to be cast by raising hands but as the respondent no.2 and other members had decided to see that the petitioner is removed as Municipal Councillor, they had never served the mandate issued upon the petitioner in respect of the meeting dated 29th July 2006. In the House of 27 Members, 11 Members were representing BJP at the relevant point of time. In the meeting convened under Section 51(2) of the Gujarat Municipalities Act, 1963, (hereinafter referred to as 'the Act, 1963') dated 24th July 2006, the Executive Committee was to be constituted but the petitioner could not participate in the said meeting. When the meeting was convened on 24th July 2006, the person authorized by the BJP had issued a mandate to the members elected on sponsorship of the BJP. The similar mandate was issued for the meeting convened on 29th July 2006, but the petitioner was not served with the said mandate with an ulterior motive. It is alleged that after the meetings, the respondent no.2 filed an application on 23rd August 2006 before SCA/9003/2007 6/58 JUDGMENT the respondent no.1 under the provisions of the Act and placed several documentary evidence in support of the contentions raised in the said application; and the respondent no.2 claimed that the petitioner may be declared disqualified. The say of the petitioner is that the petitioner was supposed to present the application under Section 3 of the Act before the designated authority as per the scheme under Rule 6 of the Gujarat Provision for Disqualification of Members of Local Authorities for Defection Rules, 1987 (hereinafter referred to as 'the Rules') framed under the Act. The applicant before the designated authority was under obligation to see that the application as well as each annexure attached with the application is duly verified in the manner laid down under the sub-rule (6) of Rule 6 of the Rules. The said sub-rule (6) of Rule 6 of the Rules is mandatory in nature and the same has been held to be mandatory. If it is found that Rule 6(6) of the Rules is not complied with, the designated authority can straight way reject such application preferred under Section 3 of SCA/9003/2007 7/58 JUDGMENT the Act. The petitioner thereafter was served with the notice about filing of the application under Section 3 of the Act by the respondent no.2 and the application filed was resisted by the present petitioner by way of filing written reply to the said application. A copy of the said written reply is the part of this petition and the same is at Annexure- C. It is claimed that the documentary evidence produced by the petitioner including the medical certificate issued by the doctor show that it was not a conscious decision of the petitioner to abstain from the meeting convened on 24th July 2006. As the circumstances were unavoidable and beyond the control of the petitioner, he could not participate in the meeting convened on 24th July 2006. The petitioner had prayed before the designated authority that qua the allegations made in the said application, he is interested in examining the respondent no.2 as well as cross-examining the witnesses who have filed their affidavits in support of the said application so that truth can be surfaced before the respondent no.1. Specific prayer SCA/9003/2007 8/58 JUDGMENT was made by moving an application for the purpose but the same has resulted into serious prejudice. The order passed by the respondent no.1, according to the petitioner, is an order passed hurriedly and even there is no good sound reason. The contentions raised by the petitioner are not dealt with appropriately. It is the say of the petitioner that as the impugned order at Annexure-A is passed in contravention of the mandatory provisions of the Act and the Rules framed thereunder, it could not sustain in the eye of law. It is also the say of the petitioner that the respondent no.1 has failed in not rejecting the application preferred by the respondent no.2 under Section 3 of the Act at an initial stage. On first scrutiny the application was required to be rejected and there was no need even to serve the notice to otherside i.e. the petitioner. One further contention raised by the petitioner is that the impugned order is not an order violative of principles of natural justice keeping in mind the contents of the application at Annexure-D, but the same SCA/9003/2007 9/58 JUDGMENT is also not a reasoned order and, therefore, cannot sustain in the eye of law. 4. During the oral submissions, Shri Tushar Mehta, learned counsel appearing for the petitioner, has mainly concentrated his arguments on the point that the application preferred by the respondent no.2 under Section 3 of the Act ought to have been dismissed observing that the same is not filed in conformity with the mandatory provisions of the Act and the Rules framed thereunder. The application under Section 3 of the Act requires to contain a concise statement of material facts and should be accompanied by copies of documentary evidence on which such applicant relies upon and each such document requires to be signed by the applicant and verified in the manner laid down in the Code of Civil Procedure, 1908 for the purpose of verification of pleadings. Indisputably, practically all the vital documents filed in support of the application though are found signed by the respondent no.2, they are not found duly verified. When it is an undisputed SCA/9003/2007 10/58 JUDGMENT position that all the annexures are not verified as per the mandate issued under Rule 6(6) of the Rules, this Court may quash the order observing that the respondent no.1 has failed in appreciating this crucial aspect specifically pointed out by the petitioner during proceedings. While developing his arguments Shri Tushar Mehta has taken me through the relevant sub-rule (6) of Rule 6 of the Rules which reads as under : “Rule 6(6) : Every annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.” 5. The facts of personal knowledge obviously are required to be stated on oath and if the applicant intends to rely on any document to see that his oral say in the application gets strengthened, production of all such documents should be in accordance with the aforesaid Rule; meaning thereby, there should be an endorsement/ verification which is required as per the scheme of the Code of Civil Procedure, SCA/9003/2007 11/58 JUDGMENT 1908. Shri Tushar Mehta has placed reliance on two decisions of this Court. In one of the decisions, in the case of Pushpendra Chandra Prakash Sharma v. State of Gujarat, reported in 1996(3) GCD 792, while appreciating the scheme of relevant sub-rule (6) of Rule 6 of the Rules, this Court has observed as under : “21. In the instant case, the defect pointed out in the petition is that annexures are not signed and verified by the applicant (respondent No.3) as required by Rule 6(6) of the Rules of 1987. Thus, on the face, there appears to be noncompliance of sub-rule (6) of Rule-6. According to Mr K.S.Zaveri, learned counsel, the effect of noncompliance of sub-rule (6) of Rule 6 is that the Chief Secretary or the Designated Officer was left to no option but to dismiss the petition. He further submits that sub-rules 1 and 2 of Rule 7 casts a duty on the SCA/9003/2007 12/58 JUDGMENT Designated Officer to ensure that the petition is in conformity with the Rules. The mandate under the Sub- rule (2) of Rule-7 is that if the provision has not been complied with, the petition shall be dismissed. Mr Zaveri submits that the sub-rule (6) is analogous of section 83(1)(c) of Representation of Peoples Act, 1951 (hereinafter referred to as 'the Act, 1951'), which provides that any Schedule or Annexure to the petition shall be signed by the petitioner and verified in the same manner as the petition. The effect of noncompliance is rejection of the petition under the provisions of section 86(1). On the other hand, Miss V.P.Shah, Senior Advocate, appearing for the respondent No.3, submits that, at the first instance, sub-rule (6) of Rule-6 is not mandatory on the analogy of the section-83(1)(c) of the Act of 1951, and secondly, even if it is so, factually the Annexure are not integral SCA/9003/2007 13/58 JUDGMENT part of the petition and such petition can not be rejected on the ground of Annexure being not signed and verified as required by Rule 6(6). 22. I have given my anxious and thoughtful consideration to the rival contentions. The lure of office or other similar consideration, has given rise to evil of political defection, which has brought in Legislature anarchism, endangering the foundation of Democracy. Thus, the defection law at all level. Bearing this in mind, Rule 6(6) and Rule 7(2) providing the consequences of non-compliance, is considered. The normal rule is where a statute requires a particular act to be done in a particular manner and also lays down that failure to comply with the said requirement leads to specific consequences, it must lead to that consequences and no other consequences. Dealing with the provisions of section 81(3) of the Act of 1951, which SCA/9003/2007 14/58 JUDGMENT provides that every election petition shall be accompanied by copies of the petition for respondents and shall be attested by the petitioner under his own signature to be true copy of petition and provision of section 86(1) which provides consequences of non-compliance of provision of section 81 i.e. dismissal of the petition, Apex Court in numerous cases held that there is no option with the High Court but to dismiss petition. Though Rule 6(6) is analogous to section 83(1)(c) of the Act of 1951, but the consequence of noncompliance of section 83(1)(c) is not provided as dismissal under section 86. However, in Dr.(Smt.) Shipra etc. vs. Shantilal case, a decision reported in J.T. 1996(5) SC 681, Apex Court held that sections 81, 83(1)(c) and 86 read with Rule 94(A) of the Rules and Form 25 are to be read jointly as integral scheme. In F.A.Sapa etc. vs. Lathuthanga reported in AIR 1991 SC 1557, the Apex SCA/9003/2007 15/58 JUDGMENT Court held that if the schedule and annexure forms an integral part of the election petition itself, strict compliance would be insisted upon. 23. What is annexure has been considered by the Panjab & Haryana High Court in case of Panna vs. Mukhtiar Singh reported in AIR 1972 P & H 451. The Court after referring to dictionary meanings of annexure and English cases, held that an annexure would necessarily be a part of the petition, if there is a substantial reference in the petition. On the other hand, the election petition makes a reference to certain proposition of law. It will not be strictly an annexure and cannot be considered as integral part of the petition. 24. In the instance case, there are six annexure. The First Annexure is xerox copy of the Gujarat Government Extra Ordinary Gazette. SCA/9003/2007 16/58 JUDGMENT Annexure-2 is a letter from the President of Kachcha District, B.J.P. regarding appointment of the Municipal Leader. Annexure-3 is a copy of the letter in form No.1. Annexure-4 is a xerox copy of the circular by the Collector, Kachcha for calling a meeting for the election of the President. Annexure-5 is a copy of the proposal as President in the prescribed form. Annexure-6 is a copy of the proposal in the prescribed form in the name of Pushpendra C. Sharma as President.” 6. The second decision is in the case of Devabhai Parbatbhai Avadia and others v. P.D. Waghela- Competent Authority and others, reported in 2007(3) GLH 410. The Court in the said decision has held that upon receiving the complaint/ application under Section 3 of the Act under Rule 7(3) of the Rules, it is the duty of the designated authority to ascertain as to whether the application complies with SCA/9003/2007 17/58 JUDGMENT the requirement prescribed under Rule 6 of the Rules and if it is found wanting, the next step he is to take is to dismiss the application and intimate the applicant that his application is dismissed as the same was not found in accordance with the statutory Rules framed under the Act. There is no scope for correction of such mistake, if any, committed in this regard. This Court has observed, “There is no provision in the Rules like Rules 17 and 18 of Order 6 of CPC, which can authorize the Designated Officer to permit the party to amend the pleadings and only upon failure to amend after permission or order, to dismiss it.” According to Shri Tushar Mehta, the annexures though bear the signatures, it is difficult even to say that the same are signed by the respondent no.2 himself as he has not even cared to mention his name. The signatures are indisputably illegible and the contents of the application describe those documents (Annexures) attached with the said application as integral part of the application and, therefore, there was no scope for the designated authority to continue with SCA/9003/2007 18/58 JUDGMENT the proceedings, however, ignoring this infirmity the designated authority passed the impugned order declaring that the petitioner has incurred disqualification under the Act. 7. According to Shri Tushar Mehta at present one seat of the Municipality has been kept vacant in compliance of the order dated 04th November 2007 passed by this Court. 8. It is submitted by the respondent no.2 that he has appeared on caveat. As such no formal order with regard to issuance of notice appears to have been passed, the learned Single Judge has protected the interest of the petitioner; and therefore, the respondent was directed not to declare the post of the petitioner vacant and if it is declared vacant, the same shall not be filled in. The service of this order is the service of notice as to the pendency of the present proceedings before the Court and the substantive reliefs prayed for therein. The Collector is ordered to be joined as party respondent no.3 and the Court is informed that he has been served with SCA/9003/2007 19/58 JUDGMENT a copy of the said prohibitory order passed by this Court. Obviously, the respondent nos.1 and 3 cannot be said to be adversary parties in stricto senso, but the say of the learned counsel appearing for the respondent no.2, who has preferred caveat application, shall have to be considered. It is contended by the respondent no.2 that the petitioner was elected as Municipal Councillor being the candidate sponsored by the BJP and as he has been declared disqualified, he cannot continue directly or indirectly as a member of the Municipality as per the scheme of Section 8 of the Act. The impugned order is passed after hearing the parties, considering the contentions placed before the designated authority in accordance with law. The election of the Municipality had taken place on 25th October 2005 and it was claimed specifically before the designated authority that the person authorized by the BJP had issued mandate to all the Municipal Councillors belonging to the BJP including the present petitioner on 23rd July 2006, but the same was refused by the petitioner. This fact has been SCA/9003/2007 20/58 JUDGMENT observed and believed by the respondent no.1- Authority and the respondent no.2 heavily relies on this finding, and there was no reason for the designated authority to disbelieve the statement made by the respondent no.2 on oath. The petitioner had not participated in the meeting on the alleged sickness. Whether this ground was either justified or proper for remaining absent, is also a matter which can be considered when the Court is asked to invoke inherent powers vested under Article 226 of the Constitution of India, is one of the arguments of Shri Dilip B. Rana, learned counsel appearing for the respondent no.1. It is denied by the respondent no.2 that either respondent no.2 or other members belonging to the BJP had designed to remove the petitioner. No party would see that the strength of its party is reduced by one when there was a thin majority. The mandate was served to the petitioner so far as the meeting held on 29th July 2006 is concerned. The petitioner was one of the persons who had insisted that there should be a meeting to constitute the Executive SCA/9003/2007 21/58 JUDGMENT Committee. The designated authority has discussed this aspect in paragraph no.4 of the impugned order. The attempt to serve the mandate was made again on 29th July 2006. This conduct of the petitioner, according to Shri Dilip B. Rana, was sufficient to hold that the petitioner had incurred disqualification. It is not the say of the petitioner that casting of vote by him was in accordance with the voting pattern of the members elected on sponsorship of the BJP. According to Shri Rana, Rule 6(6) of the Rules is not mandatory in view of the provisions of Section 83(1)(c) of the Act, 1951. The annexures attached with the application made at Annexure-C are not and were not the integral part of the application and, therefore, it was not possible for the designated authority to reject the application without issuance of notice even to the otherside. For the sake of argument, if it is accepted that the aforesaid Rule 6(6) of the Rules is mandatory, this Court may ascertain as to whether the annexures were the integral part of the application or they were simply produced as list of documents in support of SCA/9003/2007 22/58 JUDGMENT the statement made on oath by the applicant. The affidavit of a witness is statement on oath by itself and its production in the proceedings is sufficient. Whether a statement on oath made by one witness which is found to be verified by the officer authorized to record verification of such a statement under the other relevant statute, would need further verification of the complainant-applicant, is also a crucial question. According to Shri Dilip B. Rana, the proceedings before the designated authority are small proceedings and there was no need to conduct a regular trial. Therefore, the application submitted by the petitioner during the proceedings (Annexure-D) was not required to be entertained on affidavit filed and documents produced, if any. The conduct of the petitioner has also been considered by the designated authority vis-a-vis the strength struggle between the groups; one headed by the members elected on the sponsorship of the BJP and the other rival group. The casting of vote against the party mandate is nothing but a hostility and if the respondent no.2 was able to establish the said SCA/9003/2007 23/58 JUDGMENT hostility and the designated authority finds that for one or the other reason, there was something like 'war for power' and the Councillor elected on the sponsorship of the party if defeats the mandate of the party, he incurs disqualification. But the disqualification is required to be declared formally. In the present case, the declaration made by the respondent no.1 by passing order at the conclusion of the summary inquiry is not in any manner an illegal or discriminatory order. It is not necessary that the mandate should be from national level when a party is a national party and, therefore, the mandate given by the local member representing the BJP in District Jamnagar cannot be