SCA/22379/2005 1/52 CAV JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 22379 of 2005 With SPECIAL CIVIL APPLICATION No. 22385 of 2005 With SPECIAL CIVIL APPLICATION No. 22391 of 2005 With CIVIL APPLICATION Nos 12966 and 12967 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE M.S.SHAH and HONOURABLE MR.JUSTICE SHARAD D.DAVE ========================================================= 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 ? ========================================================= ANILBHAI NATUBHAI PATEL - Petitioner(s) Versus JAYRAJBHAI JAYANTIBHAI PATEL & 7 - Respondent(s) ========================================================= Appearance : MR IQBAL SYED for Petitioner(s) : 1, MR L NAGESHWAR RAO with ASIM PANDYA for HL PATEL ADVOCATES for Respondent(s) : 1, 6, 7, MR SB VAKIL with MS. KRUTI M SHAH for Respondent(s) : 2, MR SP HASURKAR AGP for Respondent(s) : 3, 4, 5, 8, 9. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.S.SHAH and HONOURABLE MR.JUSTICE SHARAD D.DAVE SCA/22379/2005 2/52 CAV JUDGMENT Date : 23/02/2006 COMMON CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE M.S.SHAH) In these petitions under Article 226 of the Constitution, three councillors of Anand Municipality have challenged the election of the first respondent herein (Jayrajbhai Jayantibhai Patel) as President of the Anand Municipality on 8.11.2005. The petitioner in Special Civil Application No.22391 of 2005 has also prayed that petitioner – (Vijaybhai Haribhai Patel) be declared as having been elected as the President of Anand Municipality. The petitioners in the other two petitions have supported the prayer for the said declaration. 2. Since the Gujarat Municipalities Act, 1963 does not provide for any machinery or forum for determining challenge to election of President and Vice President of the Municipality, this Court has entertained the petitions and heard them on merits. FACTS 3. Elections to the Anand Municipality were held on 25.10.2005 and the results were declared on 27.10.2005. Out of total 42 councillors, 19 were elected as the candidates sponsored by BJP and the other 23 candidates were elected as independent candidates. On 29.10.2005, the Collector, Anand issued a notice under Section 32 of the Gujarat SCA/22379/2005 3/52 CAV JUDGMENT Municipalities Act, 1963 (hereinafter referred to as “the Act”) and Rules 3 and 4 of the Gujarat Municipalities (President and Vice President) Election Rules 1964 (hereinafter referred to as “the Rules” or “the Election Rules”) declaring the program for election of President and Vice President of the Anand Municipality on 8.11.2005 at 1.00 PM in the Anand Municipality meeting hall. At the meeting conducted on 8.11.2005 presided over by the Resident Deputy Collector nominated by the Collector, out of 42 elected councillors of the Municipality, 38 were present, two councillors – Anilbhai Patel and Meenaben Gohil were not present because they were arrested by the police at about 12.30 PM on the date of meeting. As per the provisions of Section 33(1)(a) of the Act and as per the Government notification dated 9.7.2002, it was decided at the meeting that for the first two and a half year term, the office of President was not reserved for any class. As far as the office of Vice President is concerned, the term is five years. 4. As per Rule 6 of the Election Rules after the term of the President and Vice President is determined at the meeting, the Presiding Officer shall invite nominations for the election of the President. Similarly, at the meeting nominations are also to be invited for the office of the Vice President where such election is due. Two councillors offered their candidature for the office of President. 19 councillors cast their vote in favour SCA/22379/2005 4/52 CAV JUDGMENT of the first respondent by show of hand. Thereafter the other 19 councillors cast their vote in favour of Vijaybhai Haribhai Patel (petitioner in Special Civil Application No.22391 of 2005). There is no dispute about the fact that there was no overlapping and the 19 councillors who voted in favour of the first respondent were different from the 19 councillors who voted in favour of Vijaybhai Haribhai Patel. In view of equality of votes, on the basis of provisions of sub-section (4) of Section 32, the Presiding Officer drew lots and the first respondent (Jayrajbhai Jayantibhai Patel) was declared as elected as President of Anand Municipality w.e.f. 8.11.2005 for a term of two and a half years. 5. Similar procedure was followed for electing the Vice President for which office, there were two candidates, namely Ghanshyambhai Khemchandbhai Khatri and Mohammedsafi Gulamnabi Vora (the second respondent). For elections to this office also, 19 members voted in favour of Ghanshyambhai Khemchandbhai Khatri and the other 19 members voted in favour of the second respondent. Here also, in view of equality of votes, on the basis of the provisions of sub-section (4) of Section 32 of the Act, the Presiding Officer drew lots and on that basis declared the second respondent as the Vice President of the Anand Municipality for a term of five years as the term of the Vice President is co- terminus with the term of the Municipality. SCA/22379/2005 5/52 CAV JUDGMENT BASIS OF THE PETITIONS AND PRAYERS MADE 6. The present petitions are filed by three councillors – Anilbhai Nathubai Patel, Meenaben Pratapbhai Gohil and Vijaybhai Haribhai Patel alleging that just before the meeting of the Municipality was to commence for holding the aforesaid elections at 1.00 PM on 8.11.2005, at about 12.30/ 12.35 PM Anilbhai Nathubhai Patel was arrested in relation to an offence registered under the Copy Right Act and Meenaben Pratapbhai Gohil was arrested in connection with an offence under the Bombay Prohibition Act. It is contended that the arrest of both the councillors was so timed as to prevent both of them from voting at the elections of President and Vice President, as the BJP had secured only 19 seats out of 42 seats and there were 23 independents. Out of the 23 independent councillors, 21 councillors had formed their group under the banner of “Anand Shaher Vikas Manch” (Anand City Development Council) (hereinafter referred to as “the Vikas Manch”) and they had sponsored two independent councillors for the offices of President and Vice President. The petitioners and other independent councillors had decided to move out of Anand city from 4.11.2005 to 7.11.2005 with a view to make themselves inaccessible to the local BJP leaders who were trying to win them over and they visited places like Surat, Nasik and Shirdi. It is further contended that since the local party leadership was unable to win over any of the 21 independent candidates united under the Vikas Manch, SCA/22379/2005 6/52 CAV JUDGMENT they resorted to the unfair means as well as abuse and misuse of powers of the Police Officers by getting false FIRs filed on 5.11.2005. In the FIR under the Copy Right Act, Pareshbhai Patel and Anilbhai Patel were named as the accused. Meenaben Gohil was not named as an accused in the FIR filed against Premilaben Manibhai @ Popatbhai Gohil. Pareshbhai Patel and Premilaben named as accused in the two separate FIRs were arrested in the evening of 5.11.2005 and released on 6.11.2005. 7. When the independent councillors were about to enter the meeting hall of the Anand Municipality at about 12.30 PM on 8.11.2005, the Police Officers (respondent Nos.3 to 5) and Police staff and the constables under them arrested Anilbhai Patel and Meenaben Gohil at 12.30 PM and 12.35 PM respectively. It is the case of the petitioners that the arrest was made just half an hour before the scheduled time of elections in order to prevent Anilbhai Patel and Meenaben Gohil from exercising their votes at the elections and to tilt the election results in favour of the candidates of the BJP party; that both Anilbhai Patel and Meenaben Gohil were to vote for the candidates sponsored by the Vikas Manch (including Vijaybhai Patel for the office of President), but because they were arrested and forcibly dragged away from the meeting room, they could not exercise their vote in favour of the candidates of the Vikas Manch. They were released on bail upon being produced before the learned JMFC at SCA/22379/2005 7/52 CAV JUDGMENT about 5.00 PM after they were moved in jeep between 12.30 PM and 4.00 PM without any reason and thereafter taken to the police station. They were not produced before the learned JMFC till 4.00 PM only with a malafide intention to see that they were released on bail only after the general board meeting was over and the election results were declared. It is, therefore, submitted that if these two petitioners Anilbhai Patel and Meenaben Gohil had not been arrested, both of them could and would have voted in favour of Vijaybhai Patel who would have secured 21 votes against 19 votes secured by the first respondent (Jayrajbhai Jayantibhai Patel). It is submitted that respondent Nos.3 to 7 and other police personnel acted in a highhanded and arbitrary manner only with the malafide intention to help BJP and their official candidate to win the election to the offices of President and Vice President of Anand Municipality. It is further alleged that respondent Nos.8 and 9 obliged respondent Nos.3 to 5 by exercising their political influence in preventing their transfer and also in preventing departmental actions against respondent No.5. It is further alleged that respondent Nos. 4 to 7 and other police personnel have acted as per the direction of respondent Nos.3 and 5. 8. In these petitions, the petitioners have challenged election of the first respondent as President of the Anand Municipality. Although prayer (b) was widely worded to challenge the proceedings of SCA/22379/2005 8/52 CAV JUDGMENT the meeting of Anand Municipality held on 8.11.2005, at the hearing of the petitions, Mr Iqbal Saiyed, and Mr Vakharia, learned counsel for the petitioners have stated in categorical terms that they are challenging the proceedings of the meeting held on 8.11.2005 only in so far as election to the office of President is concerned, and that they are not challenging the election to the office of Vice President because the 21 independent candidates forming the Vikas Manch had made a common cause of electing President and Vice President from amongst themselves and not to elect any BJP councillor. Since Mohammedsafi Gulamnabi Vora, a councillor in the Vikas Manch, is otherwise also declared as elected at the meeting held on 8.11.2005 by draw of lots, the petitioners are not challenging the election of the Vice President. 9. The petitioners had also initially prayed for appropriate writ to direct the Police Officers to pay appropriate compensation to Anilbhai Patel and Meenaben Gohil for their wrongful arrest and for non- compliance with the requirements laid down in DK Basu's case. But at the hearing the learned counsel for the petitioners stated that the petitioners would not press this relief in these proceedings and pray for liberty to file other substantive proceedings for this relief. In other words, the challenge in the petitions is now confined to the election to the SCA/22379/2005 9/52 CAV JUDGMENT office of President of Anand Municipality on the ground that but for the Police Officers arresting Anilbhai Patel and Meenaben Gohil half an hour before the elections on 8.11.2005, the result of the election would have been materially different and instead of the first respondent (Jayrajbhai Patel), Vijaybhai Patel would have been declared as elected to the office of President. By amendment granted on 19.12.2005, Vijaybhai Patel made a prayer for such declaration in his petition and the other two petitioners have supported the same throughout. SUBMISSIONS ON BEHALF OF PETITIONERS 10. In support of the contention that the arrest was unlawful or at least was made in an arbitrary manner and only in oder to prevent the petitioners from participating in the elections and voting at the elections, Mr Saiyed, learned counsel for the two petitioners has taken the Court through the relevant first information reports and the complaints made by Anilbhai Patel protesting against the untimely arrest. It is submitted that in the FIR dated 5.11.2005 filed under the Copy Right Act there were two accused Pareshbhai Patel and Anilbhai Patel. Pareshbhai was arrested in the evening of 5.11.2005 and without being produced before the learned Magistrate or without his having obtained any bail order from any Court, the Police on their own released Pareshbhai Patel on the next day. It is submitted that, therefore, the police authorities SCA/22379/2005 10/52 CAV JUDGMENT themselves had not considered the offence to be so serious that Anilbhai Patel was required to be arrested on 8.11.2005 at 12.30 PM just half an hour before the scheduled elections. It is submitted that in any case Anilbhai Patel could have been permitted to vote at the meeting and thereafter upon his coming out of the meeting room he could have been arrested. It is also pointed out that on 8.11.2005 Anilbhai Patel had in fact gone to the Court of the Additional Sessions Judge at Anand and had submitted anticipatory bail application before going to the election meeting and it was specifically mentioned in the said application that he was apprehending the arrest for political reasons so that he cannot participate in the elections, a copy of the anticipatory bail application being Misc. Criminal Application No.507 of 2005 filed on 8.11.2005 is also placed on record. Similarly, Anilbhai Patel has placed on record a copy of the complaint filed in the Court of learned Judicial Magistrate First Class at Anand on 9.11.2005 (registered as Criminal Misc. Application No.6233 of 2005) against the three police officers – respondent Nos.3, 4 and 5 herein and eight to ten other police men who can be identified on seeing them. In the said complaint, it is stated that when the complainant (petitioner Anilbhai) was going for voting on 8.11.2005 for election of President/ Vice President of the Municipality, from outside the door of the Boardroom the complainant-petitioner was beaten with fist blows and pushed, and the complainant-petitioner and another woman councillor SCA/22379/2005 11/52 CAV JUDGMENT (Meenaben Gohil – petitioner in SCA No.22385 of 2005) were forcibly made to sit inside the police van and that the police officers had taken the complainant- petitioner and the other woman councillor in the van till evening and, therefore, the complainant- petitioner and the other woman councillor could not exercise their right to vote at the elections of President and Vice President. It was also stated in the said complaint that the police officers had illegally conspired with the prominent leaders of the Bhartiya Janta Party and had filed false cases against the complainant petitioner and woman councillor and the police officers had illegally detained two of them as a part of the conspiracy to deprive them from voting at the elections. Apart from the complainant himself (petitioner in SCA No.22379 of 2005) and councillor Meenaben Pratapbhai Gohil (petitioner in SCA No.22385 of 2005), the following were named as witnesses:- 1.Mohammed Safi Gulamnabi Vohra 2.Idrishbhai HajiIsmailbhai Vohra alias Bhanabhai 3.Shashikant Manubhai Patel On the said complaint, the learned 2nd Addl. Senior Civil Judge & JMFC, Anand passed orders datd 10.11.2005 directing that the Superintendent of Police, Anand District shall conduct investigation of the allegations in the complaint under Section 202 of Cr PC and hand over the report to the Court and it SCA/22379/2005 12/52 CAV JUDGMENT was further directed that the Superintendent of Police, Anand shall not transfer the investigation of this complaint to any other officer without the prior permission of the Court. It was stated at the hearing of these petitions that the report is not as yet filed by the Superintendent of Police, Anand. 11. Similarly, regarding Meenaben Gohil (petitioner in SCA No.22385 of 2005), it is stated that she was not named in the FIR lodged under Sections 66(1)(b), 65(a), 81 and 116 of the Bombay Prohibition Act. In the FIR Mrs Premilaben Manibhai alias Popat Ranchhodbhai Gohil and adult member of daughter who was residing with her are arraigned as accused. The FIR lodged by police constable Rajendra Mohanram on patrol duty mentioned that during patrolling, information was received from a private informant to the effect that Pratapbhai Ranchhodbhai Gohil is selling country made liquor and foreign liquor of other provinces. On the basis of the said information, the informant and the police constable had gone to the resident of Pratapbhai where a lady, who gave her name as Premilaben, was found present and three bottles of Indian made Foreign liquor were found of the value of Rs.200/- each and no permit was produced by Premilaben. On that basis it was inferred that Premilaben was involved in the sale of the aforesaid three bottles of foreign liquor and an offence under Section 66(1)(b), 65(a) and 81 was registered against Premilaben and her other adult member residing with her. Although the FIR does SCA/22379/2005 13/52 CAV JUDGMENT mention that the information was received against Popatbhai R Gohil, he has not been named as an accused. It is also contended that the averments in the FIR nowhere make out any offence under Section 65(a) of the Bombay Prohibition Act and still a reference to that section was made deliberately only with the intention to make the offence non-bailable as provided under Section 119 of the Bombay Prohibition Act. Premilaben was arrested on 5.11.2005 and released on bail on 6.11.2005 after having been produced before the learned JMFC. It is submitted that apart from the fact that Meenaben Gohil, wife of Pratapbhai R Gohil, was not arraigned as accused in the FIR and that she was not required to be arrested merely because she is related to Premilaben. Even otherwise, it is submitted that the the alleged offence was not so serious (maximum punishment would be 3 years sentence) that Meenaben was required to be arrested just half an hour before the elections and that in her case also she could have been arrested after she would come out of the meeting room after attending the meeting for electing the President and the Vice President. Meenaben has also alleged that she was arrested by the police just half an hour before the elections and taken in the police van and moved around Anand town and was not even presented before the learned Magistrate till 4.00. It is also contended that Meenaben was available in Anand town from early morning of 8.11.2005 and could have been SCA/22379/2005 14/52 CAV JUDGMENT arrested in the morning and produced before the learned JMFC in which case she would have got bail even before the scheduled time of the elections at 1.00 PM or in the alternative, the police officers could have arrested the petitioner after the election meeting was over. However, the police exercised their powers malafide with the only intention of preventing her from exercising her right to vote against the official candidate of the Bhartiya Janta Party and in favour of the candidate sponsored by the independents under the banner of Anand Shaher Vikas Manch. 12. The petitioners have also made allegations of mala fides against the police officers, particularly the third respondent (BC Bhandari, Police Inspector, LCB, Anand Police Station) and the fifth respondent (RB Patel, Police Inspector, Anand Town Police Station) - (i) allegations in the FIRs in connection with which Anilbhai Patel and Meenaben Gohil were arrested did not constitute cognizable offences. (ii) both Anilbhai Patel and Meenaben Gohil were arrested around 12.30 PM and they were dragged into the police van and moved around in Anand town and they were not produced before the learned JMFC till the election meeting was over and the results were declared and upon being granted bail by the SCA/22379/2005 15/52 CAV JUDGMENT learned JMFC, they were released at 5.00 PM. (iii) Anilbhai Patel was arrested by the police under instructions of respondent No.3 BC Bhandari. According to petitioner Anilbhai Patel, he had informed respondent Nos.3 to 5 and other subordinate police personnel that the petitioner was prepared to surrender himself to the police officers but before that he may be allowed to exercise his legitimate right to vote, but respondent No.3 along with other police personnel caught and dragged petitioner Anilbhai Patel forcibly from the staircase of the meeting hall and put him inside the police van. Respondent Nos.3 to 5 also did not show any warrant to the petitioner and manhandled the petitioner and humiliated him in public by abusing and giving him fist blows. (iv) It is further alleged by petitioner Meenaben Gohil (SCA No.22385) and petitioner Vijaybhai Patel (SCA No.22391) that respondent Nos.3, 4 and 5 Police Officers at Anand Police Station, are able to continue their posting at Anand on account of political influence of respondent Nos.8 and 9 (respondent Nos.6 and & in SCA No.22391) who are MLA Anand and General Secretary, Anand District Bhartiya Janta Party respectively and who are influential local SCA/22379/2005 16/52 CAV JUDGMENT BJP leaders having great political influence over the police officers and other local officers of Anand. (a) The third respondent has been able to maintain his posting at Anand (where he has built his own residential bungalow and where he stays with his family) and/or nearby places, like Nadiad and Borsad for the last ten years with the political influence of the eighth respondent. The third respondent was transferred from Anand to State CID Crime at Ahmedabad about six months ago, but he managed to get his transfer cancelled through the political influence of the eighth respondent. The third respondent has for all practical purposes become a resident of Anand city for the last more than ten years. (b) The fifth respondent is a police inspector at Anand Town Police Station. It is alleged that his immediate subordinates were charged with the offence of taking bribe about three months ago and that in such case even the higher officer as the Head of police station is transferred and departmental action is taken for lack of supervision, but on account of intervention of the eight respondent, the fifth respondent (RB Patel) is saved from departmental action as well as SCA/22379/2005 17/52 CAV JUDGMENT transfer. SUBMISSIONS ON BEHALF OF RESPONDENTS 13. In reply, Mr Hasurkar learned AGP appearing for the Resident Deputy Collector, Anand who presided over the meeting, submitted that the Resident Deputy Collector conducted the meeting in accordance with the relevant statutory provisions and, therefore, there was no illegality as far as the proceedings at the meeting are concerned. On behalf of the police officers, learned AGP Mr Hasurkar has submitted that the police officers were merely discharging their duties in arresting Anilbhai Patel and Meenaben Gohil because cognizable nonbailable offences were registered against them on 5.11.2005 and they were not available till 7.11.2005 and, therefore, there was nothing wrong in arresting these two accused on 8.11.2005. It is submitted that there is no law prohibiting the arrest of any municipal councillor against whom an offence is registered. It is submitted that since allegations of malafides are denied, the petitions may be dismissed. 14. Mr Asim Pandya, learned counsel appeared for the first respondent (Jayrajbhai Jayantibhai Patel) who was declared elected as President of Anand Municipality at the meeting held on 8.11.2005, the sixth respondent (Mr Dilipbhai M Patel, MLA, Anand) and the seventh respondent (Kantibhai Shankarbhai Chavda, General Secretary, BJP, Anand). Mr Pandya has SCA/22379/2005 18/52 CAV JUDGMENT opposed the petitions and submitted that since elections were held on 8.11.2005 in accordance with the relevant statutory provisions, the petitions do not deserve to be entertained by this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution. Mr Pandya has also relied on the affidavits filed by the above named respondents to the effect that they had