SCA/5505/2008 1/71 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5505 of 2008 With SPECIAL CIVIL APPLICATION No. 5740 of 2008 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 ? ========================================================= PRAVINJI SHAKRAJI THAKORE & 3 - Petitioner(s) Versus STATE OF GUJARAT & 4 - Respondent(s) ========================================================= Appearance : MR YATIN N OZA SR.ADVOCATE WITH MR RAJESH K SAVJANI for Petitioner(s) : 1 - 4. MR SATYAM CHHAYA, ASSTT. GOVERNMENT PLEADER for Respondent(s) : 1, None for Respondent(s) : 2,4 MR PINAKIN M RAVAL for Respondent no 5 MR TUSHAR MEHTA for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date :15/05/2008 COMMON CAV JUDGMENT SCA/5505/2008 2/71 JUDGMENT 1. I have heard Mr. Yatin N. Oza, learned Sr. Advocate appearing with Mr. Rajesh Savjani for petitioners in both the petitions, Mr. Satyam Chhaya, learned AGP for the respondent State and Mr. Tushar Mehta, learned counsel appearing for respondent no.3 in both the petitions. 2. Rule. Mr. Satyam Chhaya, learned AGP, Mr. Pinakin Raval and Mr. Tushar Mehta, learned counsel waive service of Rule on behalf of the respective respondents. By the consent of the parties, both these petitions are finally disposed of. 3. Both these petitions are filed by 4 members of Gandhinagar District Panchayat, holding their posts as Member of District Panchayat, on account of their victory in the polls conducted by the Election Commission. Two different proceedings have been adjudicated simultaneously by the Designated Officer appointed under the Gujarat Provision for Disqualification of Members of Local Authorities for Defection Act, 1986 [hereafter referred to as “the said Act”] read with provisions of Gujarat Provisions for SCA/5505/2008 3/71 JUDGMENT Disqualification of Members of Local Authorities for Defection Rules, 1989 and Amendment Rules, 2007 [hereafter referred to as “the Amendment Rules, 2007”]. The petitioners are common in both these petitions and they have brought similar factual and legal issues for determination. In Special Civil Application No. 5505 of 2008, the petitioners have challenged the finding recorded by the Designated Officer, dated 24th March, 2008 in Application No. 32 of 2008 filed by Chavda Pratapsinh Laxmansinh, respondent no.3 in the said petition. In the application submitted before the Designated Officer, the said respondent no.3 as applicant of the said application, sought for declaration of disqualification of present 4 petitioners on the ground of defection under Section 3 of the said Act and the relevant Rules. It is alleged that Member-Secretary of Gujarat Khadi Gramodhyog Board is appointed as Designated Officer. It is prayed that 4 petitioners herein, be declared as disqualified from the membership of District Panchayat in exercise of SCA/5505/2008 4/71 JUDGMENT powers vested under Section 6 of the said Act. Respondent no.3 initially had filed a petition invoking jurisdiction of this Court under Article 226 of the Constitution of India with a prayer that the petitioners of both these petitions may be restrained from participating in any meeting of Gandhinagar District Panchayat and for that necessary directions or order may be issued to the respondents of that petition. Reference of filing of substantive petition by the respondent no.3 being Special Civil Application No. 2595 of 2008 has been made during the course of oral submissions and the same has been referred in the record of the present proceedings. That petition was moved in reference to disqualification Application No. 32 of 2008. 4. In Special Civil Application No. 5740 of 2008, the petitioners have challenged the legality and validity of the very order, i.e. common order passed by the Designated Officer dated 24th March, 2008 in reference to Application No. 33 of 2008. Application No. 33 of 2008 was moved by SCA/5505/2008 5/71 JUDGMENT Kalusinh P. Bihola, one of the elected members of the Gandhinagar District Panchayat and respondent no.3 of Special Civil Application No. 5740 of 2008. As two different applications were moved by two different members of Gandhinagar District Panchayat against the petitioners of both the present petitions to declare them as disqualified as members of the District Panchayat, the said two applications were heard and decided by the Designated Officer simultaneously and both of them were disposed by common order dated 24th March, 2008. 5. Both these petitions are filed challenging the said common order dated 24th March, 2008 passed by the Designated Officer deciding disqualification Application Nos. 32 of 2008 and 33 of 2008, which were preferred by respondent no.3 of each of these petitions. It is relevant to note that the parties have expressed their consent before the Designated Officer and have decided to lead/produce evidence in one of the proceedings of one of the two applications preferred before the Designated Officer. SCA/5505/2008 6/71 JUDGMENT However, as both the said applications are different, to avoid technicalities, two different petitions have been filed otherwise, issue brought before this Court for its determination is factually and legally similar. Nature of reliefs prayed for in both the above petitions is identical. The petitioners have prayed for issuance of appropriate writ, order or direction, mainly in the terms that this Court may issue a writ of certiorari declaring the proceedings initiated by respondent No.3 against the petitioners under the provisions of Gujarat Provisions for Disqualification of Members of Local Authorities for Defection Act, 1986 and Rules, 1987 as not maintainable and the order under challenge dated 24th March, 2008 passed by the Designated Officer is not sustainable in the eye of law and therefore, the same be set aside. Rest of the reliefs in prayer clauses [B] and [C] in both the petitions are ancillary reliefs. 6. Firstly, basic facts and the controversy brought before the Court may be stated. SCA/5505/2008 7/71 JUDGMENT 7. The State Election Commission conducted elections of Gandhinagar District Panchayat on 27th October, 2007. Gandhinagar District Panchayat consists of 25 elected members. In the said elections, 15 members nominated and posed as candidates, came to be elected under the symbol of Indian National Congress [I] [hereafter referred to as “INC[I]”]. Therefore, 15 members belonging to INC[I] formed party in the body constituted of Gandhinagar District Panchayat. Pursuant to the election results, formal notification was issued by the State Election Commission under Rule 53[3] of the Gujarat Panchayat Election Rules, 1984 read with Section 15[4] of the Gujarat Panchayat Act, 1993. Thereafter, one Mahendrasinh Shankersinh Vaghela was elected as President of Gandhinagar District Panchayat. According to the petitioner, as all the 4 petitioners, along with one more member, namely, Kunvarben Jivraj Chaudhari were not satisfied with the working of the District Panchayat administration, more particularly, Panchayat Party, all the 5 members SCA/5505/2008 8/71 JUDGMENT decided to form a separate group in the name of Gandhinagar Jilla Vikas Manch and all the 5 members, thereafter jointly submitted an application to the District Development Officer on 17th October, 2007 informing him to record split in the original Panchayat Party and requested that they may be recognized as separate group. It is alleged that the group of these 5 members decided to form separate political [Group] party within the District Panchayat on 15.10.2007 or 17.10.2007 and from that day a Panchayat Party came into existence. On that very day, an application was also submitted that the President of District Panchayat should hand over administration of District Panchayat to the general body. Affidavits were also submitted to the District Development Officer. According to the petitioners, they are 5 members, i.e. 1/3rd of the original strength of INC [I] representing that party in the elected body of District Panchayat and a group has come to be formed which requires recognition as Panchayat Party. SCA/5505/2008 9/71 JUDGMENT It is contended by the petitioners that as per Section 4 of the said Act, disqualification on the ground of defection would not apply in case of split and on 17th October, 2007, there was split in INC [I] in Gandhinagar District Panchayat Party. Development Commissioner was thereafter, vide letter dated 20th October, 2007 informed by the District Development Officer about the split in the original party and he was requested to do the needful in the matter. On receipt of the communication by the Development Commissioner, necessary proposal was sent and ultimately, a request was made to grant permission to convene special meeting of Gandhinagar District Panchayat on 23rd November, 2007. The District Development Officer intimated the Development Commissioner that considering the scheme of Section 4 of the said Act, group of 5 members, perhaps cannot be declared as disqualified and therefore, appropriate decision, if need be, may be taken and the separate group, if ordered, may be recognized and the proposal made earlier may be considered. SCA/5505/2008 10/71 JUDGMENT Thereafter, on 29th November, 2007, one of the petitioners, namely, Pravinji Shakraji Thakor forwarded “No Confidence Motion” to the District Development Officer against the President of Gandhinagar District Panchayat and requested the District Development Officer to do the needful in the matter. Letter of moving “No Confidence Motion” in the prescribed form under Rule 20 of the Panchayat [Procedure] Rules, 1997, allegedly signed by group of 15 members was also forwarded. Thereafter, the District Development Officer requested the Development Commissioner to convene the meeting. It is alleged that neither before the meeting nor during the course of the meeting that was convened on 11th January, 2008, whip/mandate was served on the petitioners. It emerges from the record that it was decided that general body meeting may be convened to discuss No Confidence Motion moved by each elected member. Therefore, by issuing whip/mandate, each member of INC [I] in Gandhinagar District Panchayat party was directed to vote in particular way. Stand of the SCA/5505/2008 11/71 JUDGMENT petitioners is that no such whip/mandate was ever served to them. At one place, in the record available with the Court, it emerges that the say of the petitioners at one point of time was that they were not supposed to be served with such whip/mandate nor they were supposed to accept such whip/mandate as they were not the members of the INC [I] in Gandhinagar District Panchayat Party. However, it is contended in the present petitions that the Chairman/President who presided over the general body meeting, even had not cared to inform any of the petitioners about issuance of the whip/mandate by the Indian National Congress [I] Panchayat Party nor they were served with the mandate prior to commencement of the proceedings of the meeting. It is the say of the petitioners that this is clear violation of Rule 10 of Amendment Rules, 2007 and therefore, on this ground, there was no scope to declare any of the petitioners as disqualified from the membership. This is not a case of giving up membership voluntarily. Merely because one of the members, namely Kunverben SCA/5505/2008 12/71 JUDGMENT Chaudhari, who was with the petitioner at the time of forming of a separate group took a sharp “U” turn in her stand, would not make the case of the petitioners either bad or unsustainable. It is alleged that the Designated Officer has ignored relevant provisions of the Act as well as Rules. Application No. 32 of 2008 was required to be dismissed on the technical ground holding that the same is not maintainable in the eye of law for the infirmities in the application itself. But when the parties agreed to deal with both the applications and requested to decide them simultaneously and to produce evidence in one of the applications, it would be difficult for this Court to observe that the Designated Officer ought to have passed order dismissing Application No. 32 of 2008 on the ground of violation of non-compliance of mandatory provisions while filing the application for disqualification and the second application, therefore, could have been dismissed saying that the second application of similar nature against the same members cannot SCA/5505/2008 13/71 JUDGMENT succeed. Either applying the principles of res judicata or under the broad principles of natural justice, successive application of similar nature ought not to have been allowed by the Designated Officer. 8. Undisputedly, in the second application, being Application No. 33 of 2008, when it was presented by respondent no.3 of Special Civil Application No. 5740 of 2008, there was no technical infirmity. The Designated Officer, therefore, with the consent of the parties, has rightly decided both the applications simultaneously and has disposed of both the applications by common order. 9. At this stage, it would be relevant to reproduce the operative part of the order passed by the Designated Officer. The same is reproduced as under:- “xxx I have come to the conclusion that in this particular case, there is no split in original political party. The section 2[F], section 3 and section 4 of the 'Gujarat Provision for Disqualification of Members of Local Authority for Defection Act, 1986' have been obtained from the 10th Schedule of Constitution of India para 1[c] and Para 2 and Para 3 for the purpose of disqualification on the ground of defection. SCA/5505/2008 14/71 JUDGMENT The respondents have failed to establish the split in original political party. In the light of aforesaid judgments of the Hon'ble Supreme Court and facts which have appeared from the record of the file, I hereby decide to disqualify all the 4 respondents from the membership of Jilla Panchayat Gandhinagar.” xxx 10.While evaluating the submissions made and the documents produced, the Designated Officer has discussed the following four points; [i] Is there any split in the original political party? [ii] Is there 1/3rd strength of the separated group? [iii] If it is not so, then, is there any violation of mandate issued by such political party's authorized person; [iv] Is there any act of voluntarily giving up membership of such political party by the separated group members. Here, it would be relevant to reproduce provision of Section 4 of the said Act. The same reads as under:- “Section 4: Disqualification on ground of defection not to apply in case of Split [1] Where a councillor or, as the case may be, a member makes a claim that he and any other members of the municipal party or, as the case may be, the Panchayat party constitutes the group representing, a SCA/5505/2008 15/71 JUDGMENT faction which has arisen as a result of a split in his original political party and such group consists of not less than one- third of the councillors of such municipal party or, as the case may be, members of such Panchayat party.- [a] he shall not be disqualified under sub- section [1] of section 3 on the ground,- [i] that he has voluntarily given up membership of his original party; or [ii] that he has voted or abstained from voting in the meeting of such municipal corporation, Panchayat or, as the case may be, municipality contrary to any direction issued by such party or by any person or authority authorized by it in that behalf without obtaining the prior permission of such party, person, authority and such voting or abstention has not been condoned by such party, person or authority within fifteen days from the date of such voting or abstention; and [b] from the time of such split, such faction shall be deemed to be the political party to which he belongs for the purposes of sub-section [1] of section 3 and to be his original political party for the purposes of this section.“ It is held by the Designated Officer that in this case, there is no split in the original political party. Undisputedly, INC [I] is a national level party. There was no evidence before the Designated Officer that there was split at national level nor even at State level in the political party, i.e. INC [I], nor was SCA/5505/2008 16/71 JUDGMENT there any split in that very party at district level. The Designated Officer has considered the ratio of the judgment of the Supreme Court in the case of Jagjit Singh v/s. State of Haryana and others, [[2006] 11 Supreme Court Cases 1] and Rajendra Singh Rana & ors. v. Swami Prasad Maurya, [AIR 2007 SC 1305] and the observations made by the Apex Court therein. It emerges from the record that on 17th October, 2007, the application signed by 5 members [4 petitioners + Kunverben Chaudhary] was sent to the District Development Officer which was received by him, but in couple of hours, one of these 5 members, namely, Kunverben Chaudhari addressed and sent a letter to District Development Officer, Gandhinagar contending that she has not signed any letter addressed, forming a separate group nor she is part of Gandhi Jilla Vikas Manch. Affidavit of Kunverben Chaudhari sent along with application dated 17th October, 2007, is of 15th October, 2007. Therefore, on the day on which Kunverben Chaudhari affirmed an affidavit, application SCA/5505/2008 17/71 JUDGMENT dated 17th October, 2007 was not even prepared. Signature on the application dated 17th October, 2007 has been seriously disputed and the Designated Officer, therefore, was authorized to scrutinize the allegations and counter allegations as to genuineness of signature of Kunverben Chaudhari in the application dated 17th October, 2007. The letter written by Kunverben Chaudhari, expresses categorical denial of fact that she was party in moving the application of forming a separate group. She has expressed her ignorance about the letter. It is also declared in the said letter that she has not joined any separate group nor has she signed the application. It is alleged by Kunverben Chaudhari that somebody might have forged her signature to create a document. She has also declared that she is loyal to the INC [I] and will remain with INC [I] party. 11.The Designated Officer has considered the subsequent conduct of Kunverben Chaudhari, and her immediate conduct is found consistent with the letter that she had written to the SCA/5505/2008 18/71 JUDGMENT responsible officers including District Development Officer. Even during the general body meeting, namely, in the requisition meeting convened to discuss No Confidence Motion move, she acted as loyal member of Congress [I] party. 12.Mr.Oza,learned Sr.Advocate has argued at length and has taken me through the entire case,relevant part of the statutory provisions and other factual matrix.Submissions of Mr.Oza, can be summarized as under. [1] Finding of the Designated Officer only on the point of split is improper and has resulted into serious prejudice to the petitioners and the authority ought to have held that there was split in the Panchayat Party. [2] Disqualification under clause [b] of sub- section [1] of Section 3 is bad, illegal and unsustainable, because, there was no whip [Dandak] in the Panchayat Party of Indian National Congress [I] and mandate ought to have come from the national level. There was no evidence to the suggestion of the Designated Officer that President of Gandhinagar District Congress Committee was authorized to issue mandate. [3] There is no evidence to show that mandate was SCA/5505/2008 19/71 JUDGMENT ever served or had reached to the petitioners or any one of them. [4] Mode of service of whip is well discussed by the judicial pronouncements and there is no evidence to show that whip was ever served or conveyed to the petitioners. Mere instruction or communication to cast vote in particular manner cannot be concluded with the word “whip” or “mandate” or “direction” binding on a member of the political party, more particularly in free democratic society. [5] This is a clear case of violation of Rule 10 of the Amendment Rules, 2007, as Chairman has failed in serving whip prior to commencement of the proceedings, so also it is necessary to quash the finding recorded by the Designated Officer and the Court should hold that for want of service of whip, disqualification could not have been ordered. Mode of service and other aspects of whip have been discussed by the Apex Court and there was no evidence before the Designated Officer that the same was served accordingly. Even then, the SCA/5505/2008 20/71 JUDGMENT petitioners have voted against the interest of the political party to which they belong. [6] The word “Secretary” of government department signifies that a person who is enjoying the post of Secretary or any higher position in the administration of the government only can be conferred with powers of Designated Officer as per the scheme of Section 6 of the Act. It is not the case of any of the respondents that Mr. Sanehi was at relevant point of time Secretary of particular department or was enjoying any higher position, that is, of Secretary. Therefore, Mr. Sanehi had no jurisdiction, authority or power to deal with the Reference. Mr. Jasubha Rana, President of District Panchayat was not authorized to issue any direction. At the most, he could be said to have issued instructions. Elected member can ignore instructions conveyed by the District Party President. Mr. Rana was never SCA/5505/2008 21/71 JUDGMENT authorized to issue mandate to the members of the District Panchayat, Gandhinagar, by resolution passed by national level party nor is there any evidence to show that national level party had ever decided that all district heads of the party shall be entitled to give directions or mandate to the elected members of each Panchayat or Municipalities functioning in that district. 13.Of course, Mr. Oza, in response to the query raised by the Court has fairly accepted that if the Court is of the view that there was no split in the party in view of the judgment of the Apex Court in the case of Jagjit Singh [supra], then, he would not be able to argue much as the Supreme Court has crystallized the law in this regard. 14.Submissions of Mr. Tushar Mehta, appearing for the respondent no.3 are mostly as per the affidavits submitted by the respondent no.3, i.e. first affidavit in reply and second affidavit in reply. He has mainly placed SCA/5505/2008 22/71 JUDGMENT reliance upon two decisions of the Apex Court in the case of Jagjit Singh v. State of Haryana & others reported in [2006] 11 Supreme Court Cases 1 and other two decisions, i.e. in the case of Kihoto Hollohan v. Zachilihu & ors., reported in 1992 Supp [2] Supreme Court Cases 651 and in the case of Ravi S. Naik v. Union of India & Ors, reported in AIR 1994 SC 1558. However, he has fairly accepted that these decisions were considered by the Apex Court in subsequent two decisions relied upon by him. 15.I have considered the contents of the application, order under challenge as well as affidavit in reply filed by respondent no.3. It is not necessary to discuss other details about the admission hearing that had taken place before one learned Single Judge [Hon'ble Ms. Justice Abhilasha Kumari] on 1st April, 2008 and the subsequent order passed on 2nd April, 2008 by the said learned Single Judge. But the fact remains that the petitioners have not been granted any interim protection by this Court. Anxiety of Mr. Yatin N. Oza, learned Senior SCA/5505/2008 23/71 JUDGMENT Advocate appearing with Mr. Rajesh K. Savjani, appearing for the petitioners is that this Court should hear and decide the petitions as expeditiously as possible otherwise publication of notification of bye-election treating the post of the petitioners as vacant may result in to serious prejudice to the petitioners. 16.I have heard Mr. Yatin N. Oza, learned Sr. Advocate appearing with Mr. R.K. Savjani for the petitioner, Mr. Tushar Mehta, learned counsel appearing for the respondent no.3 and Mr. Satyam Chhaya, learned Asstt. Govt. Pleader appearing for the respondent State. 17.Mr. Chhaya, learned AGP appearing for the respondent State has submitted that the finding recorded by the Designated Officer is in