Draft amendment allowed, and also leave to join Rajkumari Hemangini Kirtikumar Sinhji, original applicant before Designated Authority and Settlement Commissioner, who is represented through Shri Jal Unwala as Respondent No.3.
The petitioners by way of this petition under Article 226 of the Constitution of India have challenged the order dated 20/10/2011 passed by the Designated Authority under the provisions of Gujarat Provisions For Disqualification of Members of Local Authority for Defection Act 1986 (herein after referred to as the 'Defection Act" for the sake of brevity).
In fact one of the opponents in this order namely opponent no.1 has approached the Court by filing Special Civil Application No. 17744 of 2011 and in this matter the Court has passed detailed order after extensively hearing learned advocates for the parties. However, as the advocate for the respondent therein could not agree for final disposal, interim order was passed and protection was granted to the petitioner therein, opponent no.1 herein above, but that order was restricted to the said opponent/petitioner in said petition, and hence the remaining five persons namely opponent no.2 to 6 have approached this Court for identical relief. The mater was filed on 16/3/2012 and permission was sought for urgent circulation which was granted,subject to removal of office objection, which was removed on Saturday and hence the matter in fact should have been listed today, but it was not listed, therefore a specific mention and request was made in the morning in presence of learned advocate for the respondents and the same was accepted and thus urgent circulation for being hearing today was permitted.
The facts mentioned in this petition indicate that the dispute arises out of Taluka Panchayat of Satlasana meeting held on 24/5/2011 for discussing and deliberating upon the no confidence motion against the then existing President. Satlasana Taluka Panchayat has total strength of 15 elected members, out of which 11 members were elected on the symbol of Bharatiya Janta Party ('BJP' for short) and 4 have been elected on the symbol of Indian National Congress (herein after referred to as 'Congress party' for brevity). The first meeting for electing President was held on 9/11/2010 wherein opponent no.1 in the order was elected as Vice President, however no confidence motion was sought to be passed and hence on 20/5/2011 the BJP, a political party instructed district president or regional president who does not hold any position in Taluka Pancnhayat to issue mandate informing all that the meeting of Satlasana Taluka Panchayat is going to be held on 24/5/201 for discussing no confidence motion against the then existing president of Taluka Panchayat. You are all elected as members of taluka panchayat on the symbol of BJP, therefore you are all mandated to remain present in the meeting and vote in favour of presidential candidate decided by the party. If you remain absent, defy this mandate or vote against the party then it would amount to breach of discipline. This mandate was issued. As it is stated herein above one Shri Rishikesh G. Patel who is said to be president of Mehsana District Unit of BJP and who is admittedly not holding any position at all in taluka panchayat in any capacity. On 24/5/2011 an advertisement was released in newspaper 'Sandesh' wherein it was mentioned that on 24/5/201 at 11.00 clock Satlasana taluka panchayat meeting is going to be held wherein no confidence motion against the then existing president was to be discussed, you are members of BJP taluka panchayat, therefore you are mandated to remain present in that meeting and cast your vote against no confidence motion. If any defiance of this mandate, or if you remain absent or cast your vote against the party, then, it will be treated as breach of discipline. It is stated that this mandate was also read over in the meeting held.
The BJP taluka panchayat party had elected one Shri Parthibhai Patel as leader in place of one Shri Samarsinh who was all along acting as leader of the panchayat party so far as BJP panchayat party is concerned. This replacement had taken place on 24/5/201 itself and the replacement was notified. Concerned TDO of Satlasana under his communication dated 24/5/2011, i.e. very same day on which no confidence motion was to be discussed in the meeting held on the same day. The meeting accordingly held and no confidence motion was passed. The members, that is the persons figuring in impugned order from sr. no.1 to 6 had defied the mandate and hence they defeated lady president, invoked declaration from designated authority appointed under section 6 of the Defection Act. The objections were filed and ultimately order came to be passed on 20/10/2011.
Learned advocate for the petitioners sought permission to rely upon and adopt the submissions made extensively while conducting the matter being Special Civil Application No. 17744 of 2011 and requested that same submissions be treated as submissions made in this petition also, and sought leave to add in case some new submissions are made on behalf of the respondent.
Learned counsel for respondent passed on two bunches of papers which have been taken on record. Therefrom he invited this Court's attention to communication dated 7/5/2005 which is issued by regional joint secretary of BJP which is in vernacular language, wherein the district president of party have been authorized to issue mandate on behalf of the party and that should be taken note of by all. This communication is not forming part of the record as there was no precise challenge to the validity of mandate on behalf of the petitioners. Learned counsel for respondent thereafter invited this Court's attention to communication dated 7/11/2010 where under the regional president of BJP authorized one Rishikesh G.Patel which is in terms of mandate for casting vote in favour of the persons mentioned there under, meaning thereby on 7/11/2010 when President,Vice President, and leader of the house was to be elected, the mandate came from regional president of BJP and not from District President as that mandate is issued by Regional President to the District President informing him that the persons named against their designation have to be elected and votes are to be cast in their favour. Relying upon this document an attempt is made to contend that the mandate in question cannot be said to be unauthorized in any manner, nor can it be said to be in realm of any suspicion as the authorization is unequivocally clear. Learned advocate for the respondent further contended that non acceptance of those authorization before designated authority would not weaken the case of the respondent in any manner, as had there been a specific challenge to the authority for issuance of mandate then, this could have been produced. In any way when these mandates are forming part of the record of this petition as they have been produced today before this Court, the Court may take judicial note thereof and do not atleast pass any interim order in favour of present petitioners.
Learned counsel for the respondent thereafter invited this Court's attention to minutes of the meeting of the taluka panchayat held on 24/5/2011 and contended that the mandate which is published in newspaper was read over to all the concerned and as decided by learned Single Judge of this Court in Special Civil Application No. 2533 of 2011 with Special Civil Application No. 2534 of 2011 in case of Raiyabhai Mohanbhai Savalia Vs. Settlement Commissioner and Director of Land Records and Ors., reported in 2011 (2) GLH pg. 511, mere writing of the mandate is sufficient irrespective of its being signed upon by the concerned.
Shri Jal Unwala, learned advocate for respondent no.3 contended that learned Single Judge of this Court in aforesaid decision of Raiyabhai Mohanbhai Savalia (supra) has also held in unequivocal terms that the question with regard to service of mandate is in fact insignificant in case where facts indicated sufficiently that at the commencement of the meeting the presiding person of the meeting has read over the mandate to all the present in the meeting. This observations were now confirmed by the Division Bench of this Court as the judgment & order of learned Single Judge cited herein above was carried in appeal being Letters Patent Appeal No. 506 of 2011, wherein the Division Bench while rendering judgment on May 13, 2011 unequivocally confirmed the same, therefore now the submission on the part of petitioners with regard to lack of service or lack of evidence of service of mandate may not help the petitioners case in any manner and that issue should really be of no consequence at all.
Learned advocate for respondent no.3 thereafter contended that the petitioners have in fact no right to contend with regard to service of mandate and or authority to issue mandate as the facts of this case would go to show that the petitioners had given up voluntarily membership of the political party and thus their own conduct which is evident from the record that they requested for separate sitting arrangements on account of their forming a new party or group, which is also placed on record. This conduct would disentitle the petitioners from agitating the service of mandate and authority of person to issue mandate as if that request for treating them as separate group and seeking separate arrangements of sitting is to be treated as they are voluntarily giving up membership of the political party. Therefore provision of Section 3 (1) (a) is straightway attracted. Section 3 (1) (a) clearly provides the eventuality where if the member gives up voluntarily membership of a political party then that action is sufficient for disqualifying him to continue as member of that Panchayat. In the instant case this action of the petitioners would therefore be held against them in seeking any relief whatsoever as the provision of Section 3 (1) (a) are also attracted. This submission is in alternative to the submission with regard to factom of defection attracted under section 3 (1) (b) of the Defection Act.
Learned advocate for respondent no.3 invited this Court's attention to the bunch of papers submitted during submission and contended that Taluka Vikas Adhikari was informed by Mehsana District President of BJP Unit vide his communication dated 24/5/201 that one Parthibhai Mangabhai has been elected as leader of the party in the meeting held of members of Taluka Panchayat which may kindly be noted. Learned advocate for respondent no.3 thereafter invited this Court's attention to the minutes of the meeting and portion which is starting right after tabular form after narration part is over, and it clearly mentioned therein that said Shri Parthibhai Mangabhai had read over whip issued by the party which was not agreeable by those six members who had sought separate sitting arrangements. Thus these two documents are sufficient to indicate that the petitioners had sufficient knowledge of the mandate issued by the party and their attitude of defying the same was pre-determined which left no room for any other submission with regard to lack of mandate, authority of mandate, service of mandate and therefore this petition is required to be dismissed.
Shri Jal Unwala for respondent no.3 further submitted that the submissions canvassed in the earlier petition in which the Court has dictated order may also be treated as submissions in this petition also so far as respondent no.3 is concerned.
This Court is of the considered view that the petitioners have raised serious contentions which needs appropriate consideration.
The Court has elaborately dealt with the contentions in the earlier matter, however at the cost of repetition, once again it is most appropriate to set out the contentions so as to make this order self-sufficient order.
The Court is of the view that before adverting to rival contentions few indisputable facts emerging there from deserve to be mentioned as under, namely:-
(1) The Satlasana Taluka Panchayat had total 15 members for which the elections were held and ultimately BJP Taluka Panchayat party was formed and it had 11 elected members, who are elected on the symbol of BJP. 4 members were elected on the symbol of Indian National Congress. After the elections were over to the Panchayat, Regional President of BJP, the political party, addressed a communication dated 7/11/2010 to one Mr. Rishikesh Patel who happened to be District President of Mehsana BJP Party, informing that the names have been mentioned for different posts which indicate that for the post of President respondent no.3 name was mandated, for the post of Vice President petitioner of Special Civil Application No. 17744 of 2011 was mentioned and for leader of party one Mr. Samarsinh Kakusinh Parmar, who happened to be respondent no.4 in the present petition. Thus when Taluka Panchayat meeting was held these people were elected and business was transacted.
No confidence motion against the then existing President i.e. Respondent no.3 was brought with signature of as many as 10 members and, therefore, special meeting for deliberating and discussing that motion was made on 24/5/2011. On 20/5/2011 District President of BJP Unit of Mehsana District addressed a communication which was entitled as "whip" which was supposed to be sent through registered post AD. This communication addressed to individual member, is in vernacular language and therefore proper transaction thereof may be read as under.
"The meeting of Satlasana Taluka Panchayat is going to be held on 24/5/2011 in respect of no confidence motion against the existing President of Satlasana Taluka Panchayat. You are members of BJP Taluka Panchayat. Therefore you are mandated to remain present in the meeting and cast your vote in favour of the candidate for President chosen by the party. In case, if you defy this mandate and absent yourself in the meeting or cast your vote against the party, then. It will be treated as breach of discipline."
This is termed to be mandate, defiance whereof in terms of provision of Section 3 of Defection Act.
(3) The President of BJP Mehsana District issued one more mandate entitled as "whip" on 24/5/2011 itself in which it is mentioned that the meeting of Satlasana Taluka Panchayat is going to be held on 24/5/2011 at 11.00 'O' clock in respect of no confidence motion against existing President. As you are Taluka Panchayat Member of BJP you are mandated to remain present in the meeting and cast your vote against the no confidence motion. In case of your defiance of the mandate and if you remain absent or cast vote against the party, then, it would be treated as breach of discipline. Right below that letter in a tabular form 11 members names are mentioned and against No. 11 to 6 names no signature is there, whereas for No. 7 to 11 there are four signature against No. 7, 9, 10 & 11.
Identically worded mandate was released in the newspaper called Sandesh in Uttar Gujarat, Mehsana, on very same day i.e. 24/5/2011.
(5) The communication is addressed by one Parmar Samarsinh Kakusinh i.e. petitioner no.4 herein to Taluka Vikas Adhikari (TDO, Satlasana) informing him to make arrangements for sitting separately in light of their earlier request dated 19/5/2011 in the meeting to be held on 24/5/2011.
(6) On this, there is an announcement to be done as per rules. The minutes of the meeting does contain regarding that the presiding officer of the meeting read over to all present the mandate received from the party to which Nos. 1 to 6 did not act.
(7) On 24/5/2011 in the meeting no confidence motion brought was approved and accepted which resulted into dethroning of respondent no.3 from her post of President, Taluka Panchayat.
(8) The political party issued show cause notice to all the petitioners calling upon them to explain as to why disciplinary proceedings shall not be initiated against them for defiance of mandate. Those documents are produced on record.
(9) The suspension order was also made and notice was issued for calling upon petitioners why they should not be expelled from the party after the meeting was over. Those documents are produced on record.
(10) Respondent no.3 approached designated authority for seeking appropriate declaration qua petitioners and petitioner of earlier SCA No. 17744 of 2011 for disqualifying them on account of their defiance of the mandate issued by political party-BJP.
(11) The present petitioners and petition of SCA No. 17744 of 2011 filed their objection on 16/8/2011 and ultimately designated authority accepted contention of respondent no.3, and passed order declaring the petitioners and petitioner of SCA No. 17744 of 2011 to be disqualified to continue as members of Satlasana Taluka Panchayat vide its order dated 20/10/2011 which is subject matter of challenge in this petition.
Against the aforesaid backdrop of factual aspects, now the Court is to examine the rival contentions of learned advocates for the parties. Before that, provision of Section 3 of the Defection Act deserves to be set out as under.
"3.
Disqualification on ground of defection:- (1) Subject to the provisions of sections 4 and 5, a concillor or a member belonging to any political party shall be disqualified for being a councillor or a member,-
(a) if he has voluntarily given up his membership of such political party; or
(b) if he votes or abstains from voting in any meeting of a municipal corporation, panchayat or as the case may be, municipality contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf without obtaining in either case the prior permission of such political party, person or authority and such voting or absentition has not been condoned by such political party, person or authority within fifteen days form the date of such voting or absention.
Explanation
- (1) For the purposes of this section,-
(a) a person elected as a councillor or, as the case may be, a member shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such councillor or member,
(b) an appointed councillor or member shall,-
(i) where he is a member of any political party on the date of his appointment as such councillor, or as the case may be, member be deemed to belong to such political party;
(ii) in any other case, be deemed to belong to the political party of which he becomes, or, as the case may be, first becomes a member of such party before the expiry of six months from the date on which he is appointed as such concillor, or as the case may be, a member.
(2)An elected councillor, or as the case may be, a member who has been elected as such otherwise than as a candidate set up any political party shall be disqualified for being a councillor or, as the case maybe, a member if he joins any political party after such election.
An appointed councillor or, as the case may be , member shall be disqualified for being a councillor or , as the case may be, a member if he joins any political party after the expiry of six months from the date on which he is appointed as such councillor,as the case may be, a member.
Notwithstanding anything contained in the foregoing provisions of this section, a person who on the commencement of this Act, is a councillor, or, as the case may be, a member (whether elected or appointed as such councillor or member) shall
(a) where he was a member of a political party immediately before such commencement, be, deemed,for the purposes of sub-section (1) to have been elected as a councillor or as the case may be, a member as a candidate set up by such political party;
(b) in any other case, be deemed to be an elected councillor or, as the case may be, member who has been elected as such otherwise than as a candidate set up by any political party for the purpose of sub-section (2) or, as the case may be, deemed to be an appointed councillor or, as the case may be, a member for the purposes of sub-section (3)."
Plain reading of aforesaid provision would unequivocally go to show that the mandate is not required to be issued only by the person who is forming part of the elected party as the language of the section is clearly indicative of the fact that mandate is required to be issued by political party which is definitely different than the Panchayat party. Thus the mandate could be issued by political party or by the person authroised by the political party and the authority issuing mandate need not be himself an elected member of the elected party. But what is required to be noted is that the person issuing mandate who have authorisation from the political party to issue the mandate under the mandate. In the instant case the mandate is issued admittedly by the President of BJP District Unit of Mehsana and as per the say of learned advocate for respondent no.3, BJP i.e. political party has authorised her to issue mandate as could be seen from the documents in the form of communication dated 7/11/2010 and 7/11/2005. Learned advocate has submitted that these two documents could not be placed before the designated authority as in fact there was no challenge to the person who issued the mandate, namely President of political party of Mehsana unit. Therefore non production thereof would not vitiate the fact that mandate was in fact issued by competent authority. The Court is of the considered view that the mandate and its authority are essential factors which have to be appropriately discussed and dealt with by the designated authority in view of the scheme of the Defection Act.
The Apex Court has in case of Sadashiv H. Patil etc. Appellants V. Vithal D. Teke and others etc. With Ashok YT. Patil and others Vs. District Collector, Satara and others, reported in AIR 2000 Supreme Court 3044, in para nos. 13 & 14 have discussed as under.
"13.
A finding as to disqualification under the Act has the effect of unseating a person from an elected office held by him pursuant to his victory at the polls in accordance with democratic procedure of constituting a local authority. The consequences befall not only him as an individual but also the constituency represented by him which would cease to be represented on account of his having been disqualified. Looking at the penal consequences flowing from an elected Councillor being subjected to disqualification and its repercussion on the functioning of the local body as also the city or township governed by the local body the provisions have to be construed strictly. A rigorous compliance with the provisions of the Act and the Rules must be shown to have taken place while dealing with a reference under Section 7 of the Act.
14. In Civil Appeals Nos. 6266-6268/98 no rules or regulations of Janta Aghadi are shown to have been filed with the Collector. The record does not show that any such rules or regulations exist. Had they been there an effort could have been made to find out 'authorisation to issue whip' having been provided therein. During the course of hearing we asked the learned counsel for the appellant to show any resolution of Janta Aghadi authorising the signatories of the whip to issue the whip. No such resolution was filed before the Collector or the High Court and not even shown to us. The contents of the whip do not also contain any recital spelling out the existence of any such authorisation which also goes to show that there was no such authorisation given. In the absence of proof of the signatories of the whip having been authorised by the Janta Aghadi to issue the whip the violation thereof would not attract the applicability of Section 3 (1) (b) of the Act. May be that the party, Aghadi or front had resolved to sponsor a particular person's candidature at the election. Acting contrary to such resolution, howsoever strongly worded, may render its member liable to disciplinary proceedings at the party level. But to incur disqualification under the Act there must be a direction issued and such direction must be either by the party, Aghadi or front to which the Councillor proceeded against belongs or be by any person or authority authorised in this behalf. Mere resolution is not a substitute for direction. On this single ground alone the judgment of the High Court deserves to be maintained."
Therefore, this observation of the Apex Court need to be borne-in-mind while dealing with the contentions with regard to the challenge to the impugned order.
This Court has in fact dealt with elaborately the decisions and orders cited on behalf of the petitioner in the earlier matter, therefore the Court now need not repeat those observations. But suffice it to say that those observations which have been made while granting interim relief to the petitioner thereunder may also be held good and applicable so far the present petition is concerned, and therefore they be treated as weighed with this Court while considering this matter also.
The additional contention canvassed on behalf of respondent no.3 that on account of the petitioners own request for treating them separate from the original political party, which would attract provision of section 3 (1) (a), is in my view, misconceived and would not help respondent no.3 at all. The factom of so called split or voluntarily giving up of party's membership is not accepted or treated as relevant by all the parties including political party or else there would not have been issuance of show cause notice as mentioned herein above or notice for expulsion. Therefore, in absence of any evidence to indicate that giving up of membership was effected and acted upon by all and in that eventuality only this submission would be of some avail to respondent no.3. Prima facie at this stage the Court is of the view that that this submission is wholly misconceived and does not deserve any further consideration.
The decision of learned Single Judge qua sufficiency of reading over of mandate to the members present at the commencement of the meeting, confirmed by the Division Bench is also of no avail to respondent no.3, as assuming for the sake of arguments without holding that the fact is true & correct then also that in itself would not be sufficient to indicate complete compliance with provision of the Act & Rules so as to invoke drastic measure of disqualifying the elected member from being continued as member of panchayat.
This Court at this stage would like to advert to the detailed provision of Rules which have been framed in pursuant to the provision of Defection Act. The rules are called The Gujarat Provision For Disqualification of Members Of Local Authorities For Defection Rules, 1987 (hereinafter referred to as the 'Defection Rules' for brevity). Rule 2 (a) defines "designated officer" designated by the State Government under Section 6, Rule 2(b) defines "Form" appended to Defection Rules and Rule 2(c) defines "leader". Said definition is required to be quoted.
"2.
Definition,- In these rules, unless the context otherwise requires,-
(a) "designated officer" means an officer designated by the State Government under section 6:
(b) "Form" means a form appended to these rules;
(c) "leader" in relation to a municipal party or, as the case may be, a panchayat party means a member of the party chosen by it as its leader and includes any other member of the party authorised by the party to act. In the absence of the leader as, or discharge, the functions of, the leader of the party for the purposes of these rules;"
Rule 3 of the Rules provides in detail what are the information to be furnish by leader of municipal party or panchayat party. Said rule is also therefore required to be reproduced.
"3.
Information to be furnished by leader of municipal party or panchayat party,- (1) - The leader of each municipal party or, as the case may be, Panchayat party (other than a municipal party consisting of only one member or a panchayat party consisting of only one member) shall, before the first meeting, of the municipal corporation, the pancyhayat., or the municipality, or where such municipal party or panchayat party is formed after the first such meeting, within thirty days after its information or, in either case within such further period as the designated office may for sufficient cause allow, furnish the following information to the designated officer, namely:-
(a) a statement (in writing) containing the names of members of such municipal party or, as the case may be , panchayat party together with other particulars regarding such members in Form 1 and the names and designations of the members of such party who have been authorised by it for communicating with the designed officer for the purposes of these rules;
(b) a copy of the rules and regulations (whether known as such or as constitution or by any other name) of the political party concerned, and © whether such municipal party or panchayat party has any separate set of rules and regulations (whether known as such or as constitution or by any other name), also a copy of such rules and regulations.
Where a municipal party or panchayat party consists of only one member, such member shall furnish a copy of the rules and regulations mentioned in clause (b) of sub-rule (1) to the designated officer, before the first meeting of the municipal corporation, panchayat or, as the case may be, municipality or, where he has become a councillor of such corporation, or municipality or a member of a panchayat after the first meeting, within thirty days after the meting of the municipal corporation, panchayat or municipality which he first attends or, in either case within such further period as the designated officer may for sufficient cause allow.
In the event of any increase in the strength of a municipal party consisting of only one councillor or member or, as the case may be, panchayat party consisting of only one member, the provisions of sub-rule (1) shall apply in relation to such municipal party or, as the case may be, panchayat party as if such municipal party or, as the case may be, panchayat party had been formed on the first date on which its strength increased.
Whenever any change takes place in the information furnished by the leader of a municipal party or, as the case may be, panchayat party under sub-rule (1) or by a member under sub-rule (2),he shall, within thirty days thereafter, or , within such further period as the designated officer may for sufficient case allow, furnish in writing information to the designated officer with respect to such change.
(5) In the case of the municipal corporation, panchayat or municipality in existence on the date of commencement of these rules, the rules, the reference in sub-rules (1) and (2) to the first meting of the municipal corporation, panchayat or municipality shall be construed as a reference to the meting held immediately after the commencement of these rules.
Where a member belonging to any political party votes or abstains from voting in any meeting of a municipal corporation panchayat or municipality contrary to any direction issued by such political party or by any person or authority authroised by it in this behalf, without obtaining in either case, the prior permission of such political party, person or authority, the leader of the municipal party or panchayat party concerned or where such member is the leader, or as the case may be, the sole member of such municipal party, or panchayat party, such member, shall as soon as may be after the expiry of fifteen days from the date of such voting or absention, and in any case within thirty days from the date of such voting or abstention inform the designated officer in Form II whether such voting or absention has or has not been condoned by such political party, person or authority.
Explanation-
A member may be regarded as having abstained from voting only when he, being entitled to vote, refrains from voting."
Rule 7 is also required to be reproduced which is laying down procedure as to how the designated officer is to act when it receives application seeking declaration for disqualifying members defying the mandate.
"7.
Procedure:- On receipt of a petition under rule 6 of the Chief Secretary to the State Government or the designated officer shall consider whether the petition complies with the requirement of rule.
If the petition does not comply with the requirements of rule 6, the chief Secretary or as the case may be, the designated officer shall dismiss the petition and intimate the petitioner accordingly.
If the petition complies with the requirements of rule 6, the chief Secretary or, as the case may be, the designated officer shall cause copies of the petition and of the annexures thereto to be forwarded,-
(a) to the councillor or member in relation to whom the petition has been made; and
(b) where such councillor or member belongs to any municipal party or a panchayat party and or such petition has not been made by the leader thereof also to such leader, and such or councillor member or leader shall,m within seven days of the receipt of such copies, or within such further period as the designated officer may for sufficient cause allow, forward his comments in writing thereon the chief Secretary ;k;or the designated officer.
After considering the comments, if any, in relation to the petition, received under sub-rule (3) within the period allowed (whether originally or on extension under that sub-rule) the chief Secretary or designated officer may either proceed to determine the Secretary or designated officer may either proceed to determine the question or, if he is satisfied, having regard to the nature and circumstances of the case that it is necessary or expedient so to do, refer the petition to such officer as he deems fit for making a preliminary inquiry and submitting a report to him.
The Chief Secretary or the designated officer shall, as son as may be after referring a petition to the officer under sub-rule (4), intimate the petitioner accordingly and cause an announcement to be made with respect to such reference tin meeting of the municipal corporation, panchayat or municipality or if such meeting is not likely to be held soon, cause the information as to the reference to be published in the manner specified in clause (b) of sub-rule (3) of rule 4.
Where the chief Secretary or designated officer makes a reference under sub-rule (4) to the officer he shall proceed to determine the question as soon as may be after receipt of the report from the officer.
The procedure which shall be followed by the Chief Secretary or designated officer for determining any question and the procedure which shall be followed by the officer for the purpose of making a preliminary inquiry under sub-rule (4) shall be consistent with the rules of natural justice and neither the chief Secretary or designated officer shall come to any findings that a concillor or member has become subject to disqualification under the Act without affording a reasonable opportunity to such councillor or member to represent his case and to be heard in person."
The designated authority is therefore under an obligation to indicate in unequivocal terms whether the petition preferred to him is in compliance with requirement of rules. He is authorised even to dismiss the said application in case if it is not in compliance with defection rules. Rule 7 (3) mentioned herein above with appropriate emphasize as thereunder it is specifically mandated to the officer concerned to follow that procedure, namely when petition is not preferred by leader of the party, copy of the petition along with annexures is to be supplied to the leader of the party and that leader of the party is under an obligation to file reply within seven days of the receipt of copies or within such further period as designated authority may have sufficient cause to allow, forward its comments in writing to the designated authority.
In the instant case, reading of the entire order impugned does not disclose nowhere that the leader of the house i.e. leader of the Panchayat party was called upon to express his views or was required to be served with copy and the copy was in fact served and he chose to file no reply or not to file reply, though the language of Rule 7 (3) (b) is unequivocally clear with regard to duty cast upon the designated authority to send copy to the leader of the party in whose party the defection is alleged and petition is filed by person other than the leader. In the instant case, admittedly, petition is filed by the person that is defeated ex-president who was admittedly never leader of the party and leader of the party was in fact one Parthibhai as stated herein above in this order. Therefore, question arise as to whether can there be said to be a compliance with procedure for passing order, the answer would be an emphatic NO, as in the entire order nowhere the authority has made any reference with regard to compliance with provision of Rule 7(3) (b) of the Defection Rules. This in my view is an infirmity which requires to be appreciated appropriately as this is serious matter of declaring an elected person to be disqualified by an executive action and therefore enough precautions and stringent compliance with the rules are sine-qua-non for passing order. The reading of the entire order betrays unequivocally that the authority has not even adverted to the procedure nor has been shown as to how and in what way procedure was followed.
The procedure prescribed in Rule 7 (4) also go to indicate that serious duty is cast upon designated authority to impartially examine the question as to whether the member being complaint of defying had in fact defied so as to incur drastic provision of being disqualified to continue as member, the requisite inquiry should also be ordered. Unfortunately, in the instant case the authority has not resorted to this provision. It is in my view mandatory upon the authority to resort to appoint an inquiry officer, but when such a disposing is resorted to, then, it is all the more bounden duty cast upon designated officer to record its finding unequivocally in respect of the objections and independent of objection also, in respect of fulfillment of the provision which would leave no room to him to pronounce that the defection has taken place so as to declare the defiant member to be disqualified. Thus in the instant case, in my view, the following lacunas prima facie emerge from the order which would render the order untenable in eye of law. They are enlisted as under:
(a) The authority was required to appreciate the language of the mandate. In the instant case the fact is that there were two different mandates issued by same authority and language employed in both these mandates is markedly different. The first mandate in point of time issued is dated 20/5/2011 in which on the face of it one would notice that there was no unequivocal mandate to cast vote against the no confidence motion. The couching of the mandate is ofcourse in the realm of the person who issues mandate but that in itself would not absolve of his duty to issue unequivocal mandate as it is a fact minimum required. In common law also, if one needs to obey the order one is to be informed about the order and its nature and purport. In the instant case the mandate dated 20/5/2011 does not indicate anywhere that there is mandate to cast vote against no confidence motion nor is there any mentioning as to who is Presidential candidate chosen by the party. Thus when the members who are supposed to act in accordance with the information, which are not informed in unequivocal terms with regard to purport of the mandate or when the mandate itself is not very clear, question arises as to whether advice of such so called mandate would bring about a drastic action of disqualifying of member who has been elected, the menswear would be NO.
(b) The second mandate is said to have been issued already on the date that is 24/5/2011 itself. Now in this mandate for the first time it is mentioned that members are required to file against no confidence motion. The question arises as to whether can this mandate be said to be a mandate giving sufficient time to members to consider it and act upon it. It is nobody's case that legislature would ever approve a situation whether an elected member will have no room to deliberate or discuss or register their view with the authority issuing mandate. It is also required to be borne-in-mind that parent section 3 of the Defection Act thus provides exception, namely leave to remain absent, leave not to obey mandate etc. When this situations are envisaged and when elected members are supposed to follow his own conscious for exercising his power as he has been representing his constituency, may be elected on a symbol of party but that itself is not sufficient to render him mere instrument in the hands of political parry so as to suppress his inner conscience as he has to carry out the mandate of the people of the constituency who have elected him. Therefore, in light of this also question arise as to whether mandate issued on the very same day which does not bear any timing could be said to be so effective a particular mandate as to render the person or member to be disqualified. This is a serious issue requires consideration and more deliberations. The Court need not delve upon any more on the mandate. On the face of it, it bears date 24/5/2011, that is the day on which the no confidence motion was to be discussed at 11.00 '0' clock. Therefore, it was duty cast upon designated authority to atleast satisfy himself and record his satisfaction in the order that that mandate which is pressed into service was the mandate issued well in advance that is before the meeting started. Assuming for the sake of examining without holding that the mandate was issued little different than the timing of the meeting then also, nothing prevented the authority, that is designated officer, in recording its satisfaction in that behalf. The entire order of the designated officer is conspicuously silent qua this aspect and therefore in my view, this lacuna is required to be appropriately explained by concerned authority or its concerned.
(c) The designated authority has unfortunately not adverted to two minuets on the difference in language nor has the authority unequivocally said as to which mandate is required to be stayed as the mandate defiance whereas would render member disqualified. Non adverting to this aspect in my view prima facie vitiates the order itself. As it is stated herein above the Apex Court has in terms expressed in case of AIR 2000 Supreme Court 3044 (supra) that the task of rendering elected member disqualified is a task which is required to be undertaken with all seriousness and sincerity. In the instant case reading of entire order betrays lack of close scrutiny of various aspects and non adherence to the procedure prescribed under Rule 7 which in my view cannot be said to be very procedure and not substantial so as to justify passing of the order prima facie.
In view of this, this Court is of the considered view that the matter deserves consideration. Hence RULE. Rule is waived by Shri Jal Unwala for respondent no.3 and learned AGP for respondent no.1 respectively. By way of interim relief the implementation and operation of the impugned order is stayed till final disposal of this matter.
This interim relief, in my view, is required to be granted as non-granting of this relief would amount to depriving the members/petitioners their right to represent their constituency on the basis of the impugned order which has been prima facie found not to be tenable in eye of law. The question arises as to whether the Court may restrain itself from granting relief which may amount to allowing the petition at this stage. The answer is, in a given case such relief is required to be granted, especially when the matter was in fact heard at length extensively. Besides, it is also required to be noted that the Court is not inclined to deprive the petitioner of their legitimate right to participate in the meetings and vote also, as merely permitting petitioners to participate without their right to vote would also amount to depriving of them their right to represent their own constituency when this Court has prima facie found the order to be untenable in eye of law. Therefore, staying of operation of the impugned order would operate in favour of the petitioners so as to permit them to act as members of the Satlasana Taluka Panchayat hereinafter.
At this stage Shri Unwala requested that the Court has already stayed order passed in earlier matter being SCA No. 17744 of 2011 and this matter also be stayed up to 23/3/2012 Shri S.M. Sojitwala for Mr. BT Rao has strongly objected to this request. The objection is over ruled. The Court is of the considered view that stay is required to be granted to have this order tested before the appropriate forum. Hence, this order is stayed till 23/3/2012 and will be made operative only from 24/3/2012. Direct service permitted.
[ S.R. BRAHMBHATT, J ] /vgn Top