JUDGMENT ANANT S. DAVE, J. In this petition under Arts. 226 and 227 of the Constitution of India, the following prayers are made : "(A) Your Lordships may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside order dated 26-12-2008 passed by respondent No. 2-authority whereby disqualifying the present petitioners under the provisions of the Act [at Annexure 'AA' hereto]"; (B) Pending admission, hearing and final disposal of the petition, Your Lordships may be pleased to stay further operation, implementation and execution of order dated 26-12-2008 passed by respondent No.2-authority whereby disqualifying the present petitioners under the provisions of the Act (at Annexure 'AA' hereto"); 2. Thus, order dated 26-12-2008 is passed by the Designated Authority while exercising powers under Sec. 3 of the Gujarat Provision for Disqualification of Members of Local Authorities for Defection Act, 1986 (for short, 'the Act') read with Rule 3 of Gujarat Provision for Disqualification of Members of Local Authorities for Defection Rules, 1987 (for short, 'the Rules'). 3. The brief facts giving rise to the petition are as under : 3.1. On 25-10-2005, general election of Sidhpur Nagarpalika was held and there is no dispute about the fact that the petitioners had contested the election on the tickets of Bhartiya Janata Party (for short 'B.J. P.') i. e. original political party, and they were declared elected accordingly. The names of elected candidates under Rule 68 of the Gujarat Municipalities (Election) Rules, 1994 came to be published in the Gazette of Gujarat Government Extraordinary on 29-10-2005. On 5-11-2005, a meeting of all elected Members of Sidhpur Nagarpalika to elect President and Vice-President for Sidhpur Nagarpalika and mandates were issued to the Members of the B.J.P. by the President of the District B.J.P. Unit and petitioner No.2 came to be elected on 9-11-2005 by margin of 21:15. Even at that point of time, election of President took place in violation of mandate issued by the President of the District B.J.P. Unit. Therefore, Application No.5 of 2005 came to be filed before the Designated Authority under the Act, but, ultimately, that application was permitted to be withdrawn by the Authority. So, in the first round, upon withdrawal of the application, the proceedings under the Act to declare the petitioner No. 2 disqualified remained undecided. 3.2. Therefore, Application No.5 of 2005 came to be filed before the Designated Authority under the Act, but, ultimately, that application was permitted to be withdrawn by the Authority. So, in the first round, upon withdrawal of the application, the proceedings under the Act to declare the petitioner No. 2 disqualified remained undecided. 3.2. Since, the term of petitioner No.2 as President of Sidhpur Nagarpalika came to an end, notice was issued by the Collector to all the members that meeting of Members of Nagarpalika would take place on 5-5-2008 for election of President and Vice-President respectively. On 5-5-2008, a three-line Whip/direction was issued by the B.J.P., i.e. original political party to all the members stating that the election of President of Sidhpur Nagarpalika was scheduled to take place on 5-5-2008 and all the members who have been set up by the B.J.P. should vote as per the mandate issued by the President of the District Unit of B.J. P., Patan, in favour of the candidates so mandated. It is the case of the petitioners that all the members were to receive and sign the mandate but the petitioners had not signed the Whip nor had they given any such consent. On 5-5-2008, the meeting for election of President and Vice-President of Sidhpur Nagarpalika was convened and petitioner No. I came to be elected as President by securing 19 votes and rival candidate one Smt. Sarvamangalaben H. Thaker got only 16 votes. Smt. Sarvamangalaben H. Thaker was set up by the B.J. P. as per the mandate given to its members. 3.3. Since, the candidates set up by the B.J.P. for the post of President was defeated and the petitioners acted contrary to the direction/Whip issued by the President of the District Unit of B.J. P., Patan, show-cause notice dated 6-5-2008 was issued by the party and reply was given by the petitioners on 14-5-2008 stating that no breach of any direction/mandate was ever committed by the petitioners and they had acted in the interest of the party. 3.4. However, Application No. 18 of 2008 was filed by respondent No. 1 before the Designated Authority, which came to be admitted and a notice was issued to the petitioners to file reply. 3.4. However, Application No. 18 of 2008 was filed by respondent No. 1 before the Designated Authority, which came to be admitted and a notice was issued to the petitioners to file reply. Since, there were objections raised by the petitioners about competence and status of the Designated Authority, a writ petition being Special Civil Application No. 8035 of 2008 was preferred before this Court and this Court, while issuing Rule, by order dated 21-7-2008, stayed further proceedings before the Designated Authority. Against the order dated 21-7-2008, Letters Patent Appeal No. 938 of 2008 was filed by the State Government and Division Bench of this Court vide order dated 14-11-2008, set aside the order passed by the learned Single Judge. 3.5. Thereafter, the petitioners were called upon to remain present and finally the Designated Authority passed order dated 26-12-2008 allowing Application No. 18 of 2008 declaring the petitioners as disqualified as Members of Sidhpur Nagarpalika, which is challenged by the petitioners by way of filing the present petition. 4. Mr. Prakash Jani, learned Counsel for the petitioners has vehemently submitted that the order impugned in this petition is illegal, arbitrary, unconstitutional, and violative of the provisions of the Act and the Rules. Against the order dated 14-11-2008 passed in Letters Patent Appeal No. 938 of 2008, Special Leave Petition was filed before the Apex Court, and though it was pending and to be heard after reopening of Christmas vacation and a request was made to the Designated Authority, the impugned order is passed which is contrary to the fair procedure, and the impugned order being unreasonable and arbitrary deserves to be quashed and set aside. Even, on earlier occasion, by filing Application No. 5 of 2005, similar challenge was made before the Designated Authority, but the said application came to be withdrawn and respondent No.1 herein is in the habit of filing frivolous application without there being any merit. 4.1. Even, on earlier occasion, by filing Application No. 5 of 2005, similar challenge was made before the Designated Authority, but the said application came to be withdrawn and respondent No.1 herein is in the habit of filing frivolous application without there being any merit. 4.1. It is next contended by the learned Counsel for the petitioners that three-line Whip/mandate/direction was not signed by the competent authorized person on behalf of the B.J. P. and there is no positive proof in the possession of respondent No. 1 which may reveal that the petitioners were duly informed about the mandate and no breach thereof was ever committed by the petitioners and duty is cast upon a person to prove breach or violation of the Act or Rules, who alleges such breach or violation. 4.2. It is further contended that the petitioners had not signed the mandate, and therefore, there was no service of such mandate and particularly, in the mandate, consequence of disobedience was not stated that in the event of defiance of the mandate or Whip, a member shall be visited with consequence of disqualification, and therefore also, the Designated Authority failed to consider the above aspect and there is no finding on the above issue. It is further contended that the application filed before the Designated Authority was not in accordance with Rule 6 of the Rules, and in spite of interim relief being in operation in favour of the petitioners, the order is passed at the behest of the M.L.A. representing Sidhpur State Assembly belonging to the B.J.P. and also a Cabinet Minister in the State of Gujarat and, since undue int1uence is exercised on the Designated Authority, the whole exercise is mala fide and viewed accordingly by this Court to quash and set aside the order. 4.3. In support of the above submissions, the learned Counsel for the petitioners has placed reliance on the decisions of the Apex Court in the case of Sadashiv H. Patil v. Vithal De. 4.3. In support of the above submissions, the learned Counsel for the petitioners has placed reliance on the decisions of the Apex Court in the case of Sadashiv H. Patil v. Vithal De. Teke & Ors., reported in 2000 (8) SCC 82 and in the case of Kihota Hallohan v. Zachilllzu, reported in AIR 1993 SC 12 and submitted that failure to mention about vIsitation of disqualification as a member in the mandate itself is fatal and to incur disqualification under the Act, there must be direction issued and such direction must be by the original political party and in absence of proof of signatures of the Whip having been authorized by the original political party, any disobedience to such Whip would not attract applicability of Sec. 3(1B) of the Act. Therefore, on the strength of law laid down by the Apex Court in the above decisions, the impugned order deserves to be quashed and set aside. 4.4. In addition to the above, reliance is placed on the decision of this Court in the case of Devabhai Parbhatbhai Avadia v. P. D. Waghela, reported in 2007 (3) GLH 410 : 2008 (1) GLR 158 and submitted that Rule 6 is mandatory. herefore, in the event of non-compliance of Rules 6 and 7 about fair procedure and compliance of natural justice by the applicant before the Designated Authority, it was incumbent upon the Designated Authority to reject the application on that ground also. 5. Mr. Tushar Mehta, learned Additional Advocate General appearing for the State, has submitted that there is no dispute about the fact that in the election of Sidhpur Nagarpalika, which took place on 25-10-2005, for 35 seats, 24 candidates belonging to B.J.P. and 11 from the Indian National Congress Party came to be elected. The Act refers to direction and does not refer to Whip but direction and if Annexures 'G', 'H' and T of the petition are seen, in no uncertain terms the members of Sidhpur Nagarpalika were given direction to remain present in the meeting hall of Sidhpur Nagarpalika on 5-5-2008 for the election for the post of President and Vice-President. The Act refers to direction and does not refer to Whip but direction and if Annexures 'G', 'H' and T of the petition are seen, in no uncertain terms the members of Sidhpur Nagarpalika were given direction to remain present in the meeting hall of Sidhpur Nagarpalika on 5-5-2008 for the election for the post of President and Vice-President. A three-line Whip issued on 5-5-2008 was by the District Unit of B.J.P. directing all the members to vote for the post of President and Vice-President of Sidhpur Nagarpalika, as directed by the President of the District Unit of B.J.P., Patan, and failure to do so would invite disqualification as member of the Municipality under the Act and the Rules. Even the name of candidate for the post of President of Sidhpur Nagarpalika was also mentioned. Whip was signed by Bharatbhai Rajgor, President of the District Unit of B.J.P., Patan, and was served upon and signed by all the members and upon refusal by the petitioners to accept the Whip, it was read overloudly and for disobedience and defiance of the Whip, all the petitioners came to be suspended from the party. 5.1. This will go to show that the procedure for issuance of Whip by the competent person of the original political party to the members was duly complied with in accordance with the Act and the Rules. It is further submitted• that, on earlier occasion also, in the year 2005, breach of mandate was committed, but ultimately, upon withdrawal of the application, some of the petitioners continued to hold the post but upon tenure came to an end, again, in the year 2008, clear defiance of the direction of the party was noticed, and therefore, on the basis of material available before the Designated Authority, and on inquiry and scrutiny thereof, the disqualification incurred by the defectors does not deserve interference by this Court in exercise of power under Arts. 226 and 227 of the Constitution of India. 5.2. The learned Additional Advocate General has invited attention of this Court to various provisions of the Act and the Rules and submitted that the Apex Court had an occasion to examine Tenth Schedule of the Constitution of India, wherein, the Rules referred therein are pari materia except subsequently introduced Rule 10 in the Act in the year 2007. 5.2. The learned Additional Advocate General has invited attention of this Court to various provisions of the Act and the Rules and submitted that the Apex Court had an occasion to examine Tenth Schedule of the Constitution of India, wherein, the Rules referred therein are pari materia except subsequently introduced Rule 10 in the Act in the year 2007. The Rules are framed as provided under Sec. 8 of the Act and they are procedural in nature. The rules framed are directory and cannot be interpreted so as to render the substantive provision of the Act nugatory. 5.3. The learned Additional Advocate General has also placed reliance on the decision of the Apex Court in the cases of Kihota Hollohan v. Zachillhu. reported in AIR 1993 SC 412 (supra); Ravi S. Naik v. Union of India. AIR 1994 SC 1558 ; Rajendra Singh Rana v. Swami Prasad Maurya. AIR 2007 SC 1035 and Dr. Mahachandra Prasad Singh v. Chairman, Bihar Legislative Council & Ors.. reported in AIR 2005 SC 69 , and submitted that now there is no conflict in any of the decisions of this Court and the law laid down by the Apex Court in Dr. Mahachandra Prasad Singh (supra) which has taken into consideration earlier decision of the Apex Court will govern the provisions of the Act and the Rules. 5.4. It is further contended that the earlier decision of this Court in the case of Devabhai Parbhatbhai Avadia, reported in 2007 (3) GLH 410 : 2008 (1) GLR 158 was later on considered by the Division Bench of this Court where a reference is made to the decision of the Apex Court in Dr. Mahachandra Prasad Singh (supra). When the decision of the learned Single Judge in Special Civil Application No. 9003 of 2007 (Parbatbhai Mansibhai Vanaria, Municipal Councillor), came to be challenged, by Oral Order dated 11-4-2008, in Letters Patent Appeal No. 376 of 2008, after considering Paragraph 16 in the case of Dr. Manachandra Prasad Singh (supra), the Court found that the Rules are directory. When the decision of the learned Single Judge in Special Civil Application No. 9003 of 2007 (Parbatbhai Mansibhai Vanaria, Municipal Councillor), came to be challenged, by Oral Order dated 11-4-2008, in Letters Patent Appeal No. 376 of 2008, after considering Paragraph 16 in the case of Dr. Manachandra Prasad Singh (supra), the Court found that the Rules are directory. It is further submitted that even the learned Single Judge who delivered the judgment in Devabhai Parbhatbhai Avadia, reported in 2007 (3) GLH 410 : 2008 (1) GLR 158 , again considered the said decision in the case of Devabhai Parbhatbhai Avadia, reported in 2008 (3) GLH 73 : 2008 (4) GLR 3614 and after considering the decision the Apex Court in Dr. Mahachandra Prasad Singh (supra) held that the Rules are directory. 5.5. The learned Additional Advocate General has also placed reliance on the decision of the Orissa High Court AIR 1990 Orissa 88 and the decision of the High Court of Bombay, Goa Panji Bench, dated 29-1-2005 in Writ Petition No. 107 of 2005, wherein, it is held that Rules are directory. 5.6. Thus, it is submitted that even if procedural irregularity is noticed and non-compliance of Rule by itself will not result into quashment of the order in exercise of power under Arts. 226 and 227 of the Constitution of India. 5.7. All the contentions raised before the Designated Authority were dealt with in accordance with the procedure to be followed under Rule 7 by observing principles of natural justice and any other contention on the question of fact cannot be permitted to be raised by this Court. 5.8. In view of interpretation of Rule 10 of Amendment in the year 2007, it is the duty cast upon a member of the Panchayat or councillor, as the case may be, to receive mandate issued by such original political party and also to ascertain by obtaining a copy thereof and the petitioners were duty-bound to act as per the provisions of the Rules and by not doing so also, they have committed serious breach of the Rules and, considering overall facts, the petition deserves to be rejected. 6. Mr. 6. Mr. Ashim Pandya, learned Counsel appearing for respondent No.1, has submitted that the authority of the person who issued the Whip was not challenged and there is no defect in the application preferred before the Designated Authority and some lacuna in mentioning of date on the application as well as on the affidavit was clearly explained, and therefore, such trivial lacuna has no relevance to decide the application. It is further submitted that the petitioners have incurred disqualification under clause (a) of Sec. 3 itself since formation of separate group was not condoned by the party and the Rules being directory in nature even if non-compliance thereof will not entail beneficial order in favour of the petitioners who are proved defectors under the Act. It is lastly submitted that the scope of judicial review is limited as decided by the Apex Court in the case of Kihota Hallohan v. Zachillhu, reported in AIR 1993 SC 412 (supra), and as per the Apex Court, judicial review in such matters would be confined to in respect of actions falling outside the jurisdiction of the authority taking such action only and it precludes challenge to such action on the ground of an error committed in the exercise of jurisdiction vested in the authority because such an action cannot be said to be an action without jurisdiction and there being no jurisdictional error, no interference is called for. 7. In rejoinder, Mr. Prakash Jani, learned Counsel for the petitioners has vehemently contended that when breach of mandate is not proved and what is reflected is that Whip was addressed only to the local President, in view of the decision of the Apex Court in the case of Sadashiv H. Patil (supra), the impugned order deserves to be quashed and set aside. It is further submitted that the facts in Dr. Mal1acl1andra Prasad Singh (supra) were different and the Rules were framed by the Speaker of the Assembly and scheme of Schedule X of the Constitution and the Act and the Rules in the present case are different and the Secretary, who is the Designated Authority under the Act, is not holding a high constitutional position like Speaker, and therefore, the Rules are to be interpreted as mandatory and not directory. It is, therefore, submitted that the reliance on Dr. It is, therefore, submitted that the reliance on Dr. Mal1acl1andra Prasad Singh (supra) has no relevance to the facts of the present case, and therefore, the petition deserves to be allowed. 8. Having heard learned Counsels for the parties and considering the facts and circumstances of the case on the touchstone of the law laid down by the Apex Court, in my opinion, the contentions raised by the learned Counsel for the petitioners do not persuade this Court to accept the same, inasmuch as, the order passed by the Designated Authority cannot be said to be in any manner without jurisdiction, illegal, unconstitutional or contrary to the provisions of the Act and the Rules. 9. Before analyzing the facts in details, the Apex Court in Dr. Malzachandra Prasad Singh (supra) has succinctly recorded underlying concept of Fifty-Second Amendment to the Constitution and introduction of Tenth Schedule by referring to the decision the case of Kihata Hallahan (supra). In Paragraphs 4 and 5 of the above decision, the Apex Court considered the background in which the Tenth Schedule was added to the Constitution in 1967 and for achieving the object. the provisions of the Tenth Schedule to the Constitution, which were relevant, were considered and in Paragraph 6, it is held as under : "6. The underlying object and the purpose which the Tenth Schedule seeks to achieve were explained as under in Kuhota Hollohan (supra) and it will be useful to keep them in mind while interpreting its provisions : 'Para 13 : These provisions in the Tenth Schedule give recognition of the role of political parties in the political process. A political party goes before the electorate with a particular programme and it sets up candidates at the election on the basis of such programme. A person who gets elected as a candidate set up by a political party is so elected on the basis of the programme of that political party. The provisions of Paragraph 2( I)(a) proceed on the premise that political propriety and morality demand that if such a person, after the election, changes his affiliation and leaves the political party which had set him up as a candidate at the election, then he should give up his membership of the legislature and go back before the electorate. The provisions of Paragraph 2( I)(a) proceed on the premise that political propriety and morality demand that if such a person, after the election, changes his affiliation and leaves the political party which had set him up as a candidate at the election, then he should give up his membership of the legislature and go back before the electorate. The same yardstick is applied to a person who is elected as an Independent candidate and wishes to join a political party after the election." Thus, to remove the evil of defections by the members of the political party elected on their symbol, necessity to frame a legislation was noticed. 10. Since constitutional validity of the Act was challenged, the Apex Court the case of Kihota Hallohan (supra), in Paragraph 111, held as under : "In the result, we hold on contentions (E) and (F) : That the Tenth Schedule does not in providing for an additional ground, for disqualification and for adjudication of disputed disqualifications, seek to create a non-justiciable constitutional area. The power to resolve such disputes vested in the Speaker or Chairman is a judicial power. That Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the Speakers/Chairman is valid. But the concept of statutory finality embodied in Paragraph 6(1) does not detract from or abrogate judicial review under Arts. 136, 226 and 227 of the Constitution insofar as infirmities based on violations of constitutional mandates, mala fides, noncompliance with Rules of Natural Justice and perversity, are concerned. That the deeming provision in Paragraph 6(2) of the Tenth Schedule attracts an immunity analogous to that in Arts. 112(1) and 212(1) of the Constitution as understood and explained in Keshav Singh case, AIR 1965 SC 754 to protect the validity of procedure. The deeming provision, having regard to the words 'be deemed to be proceedings in Parliament' or 'proceedings in the legislature of a State' confines the scope of the fiction accordingly." 10.1 In Ravi S. Naik (supra), the Apex Court has held in Paragraph 18 as under : "18. The deeming provision, having regard to the words 'be deemed to be proceedings in Parliament' or 'proceedings in the legislature of a State' confines the scope of the fiction accordingly." 10.1 In Ravi S. Naik (supra), the Apex Court has held in Paragraph 18 as under : "18. The submission of Shri Sen is that the petitions that were tiled by Khalap before the Speaker did not fultil the requirements of clause (a) of sub-rule (5) of Rule 6 inasmuch as the said petition did not contain a concise statement of the material facts on which the petitioner (Khalap) was relying and further that the provisions of clause (b) of sub-rule (5) of Rule 6 were also not complied with inasmuch as the petitions were not accompanied by copies of the documentary evidence on which the petitioner was relying and the names and addresses of the persons and the list of such information as furnished by each such person. It was also submitted that the petitions were also not verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings and thus there was non-compliance of sub-rule (6) of Rule 6 also and that in view of the said infirmities the petitions were liable to be dismissed in view of sub-rule (2) of Rule 7. We are unable to accept the said contention of Shri Sen. The Disqualification Rules have been framed to regulate the procedure that is to be followed by the Speaker for exercising the power conferred on him under sub-paragraph (1) of Paragraph 6 of the Tenth Schedule to the Constitution. The Disqualification Rules, are therefore, procedural in nature and any violation of the same would amount to an irregularity in procedure which is immune from judicial scrutiny in view of sub-paragraph (2) of Paragraph 6 as construed by this Court in Kihota Hollohan's case, 1992 AIR SCW 3497 (supra). Moreover, the field of judicial review in respect of the orders passed by the Speaker under sub-paragraph (1) of Paragraph 6 as construed by this Court in Kihota Hollohan's case (supra) is confined to breaches of the constitutional mandates, mala flues, non-compliance with Rules of Natural Justice and perversity. We are unable to uphold the contention of Shri Sen that the violation of the Disqualification Rules amounts to violation of constitutional mandates. We are unable to uphold the contention of Shri Sen that the violation of the Disqualification Rules amounts to violation of constitutional mandates. By doing so, we would be elevating the Rules to the status of the provisions of the Constitution which is impermissible. Since, the Disqualification Rules have been framed by the Speaker in exercise of the power conferred under Paragraph 8 of the Tenth Schedule they have a status subordinate to the Constitution and cannot be equated with the provisions of the Constitution. They cannot, therefore, be regarded as constitutional mandates and any violation of the Disqualification Rules does not afford a ground for judicial review of the order of the Speaker in view of the finality clause contained in sub-paragraph (1) of Paragraph 6 of the Tenth Schedule as construed by this Court in Kihota Hollohan's case, 1992 AIR SCW 3497 (supra)." 11. Again the Apex Court in Dr. Mahachandra Prasad Singh (supra) referred of the decision of the Apex Court in Ravi S. Naik (supra), and referring to Paragraph 11 of the decision pertaining to the conduct of a member alone, a decision can be rendered under the Act disqualifying a member of the House. Another decision in the case of G. Viswanathan v. Han 'ble Speaker, Tamil Nadu Legislative Assembly, reported in AIR 1996 SC 1060 , was referred and it was held that the act or voluntarily giving up the membership of the political party may be either express or implied. When a person who has been thrown out or expelled from the party which set him up as a candidate and got elected, joins another (new) party, it will certainly amount to his voluntarily giving up the membership of the political party which had set him up as a candidate for election as such member. In Paragraphs 15 and 16, the Apex Court discussed the provisions of Paragraph 2 of Tenth Schedule, which are pari-materia with the provisions of Sec. 3 of the Act and held as under : "15. It may be noticed that the nature and degree of inquiry required to be conducted for various contingencies contemplated by Paragraph 2 of Tenth Schedule may be different. It may be noticed that the nature and degree of inquiry required to be conducted for various contingencies contemplated by Paragraph 2 of Tenth Schedule may be different. So far as Clause (a) of Paragraph 2(1) is concerned, the inquiry would be a limited one, namely as to whether a member of the House belonging to any political party has voluntarily given up his membership of such political party. The inquiry required for the purpose of Clause (b) of Paragraph 2(1) may, at times, be more elaborate. For attracting Clause (b), it is necessary that the members of the House 0) either votes or abstains from voting (ii) contrary to any direction issued by the political party to which he belongs or by any person or authority authorized by it in this behalf, (iii) without obtaining the prior permission of such political party, person or authority; and (iv) such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention. Therefore, for the purpose of Clause (b), inquiry into several factual aspects has to be conducted. It may be noticed that Clause (b) does not say that the prior permission has to be in writing, and therefore, it can be oral as well. Similarly, the manner in which condonation has to be expressed has not been indicated. Therefore, for holding that a member of a House has incurred a disqualification under Clause (b) of Paragraph 2(1) findings on several aspects will necessarily have to be recorded. Similarly, for application of Paragraph 4, inquiry has to be made whether the original political party merged with another political party, whether the member of the House has become member of such other political party or as the case may be, of a new political party formed by such merger or whether he has not accepted the merger and opted to function as a separate group. 16. Sub-rule (1) of Rule 6 says that no reference of any question as to whether a member has become subject to disqualification under the Tenth Schedule shall be made except by a petition in relation to such member made in accordance with the provisions of the said Rule and sub-rule (6) of the same. 16. Sub-rule (1) of Rule 6 says that no reference of any question as to whether a member has become subject to disqualification under the Tenth Schedule shall be made except by a petition in relation to such member made in accordance with the provisions of the said Rule and sub-rule (6) of the same. Rule provides that every petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings. The heading of Rule 7 is 'Procedure'. Sub-rule (1) of this Rule says that on receipt of petition under Rule 6, the Chairman shall consider whether the petition complies with the requirement of the said Rule and sub-rule (2) says that if the petition does not comply with the requirement of Rule 6, the Chairman shall dismiss the petition. These rules have been framed by the Chairman in exercise of power conferred by Paragraph 8 of Tenth Schedule. The purpose and object of the Rules is to facilitate the job of the Chairman in discharging his duties and responsibilities conferred upon him by Paragraph 6, namely, for resolving any dispute as to whether a member of the House has become subject to disqualification under the Tenth Schedule. The Rule being in the domain of procedure, are intended to facilitate the holding of inquiry and not to frustrate or obstruct the same by introduction of innumerable technicalities. Being subordinate legislation, the Rules cannot make any provision which may have the effect of curtailing the content and scope of the substantive provision, namely, the Tenth Schedule. There is no provision in the Tenth Schedule to the effect that until a petition which is signed and verified in the manner laid down in the C.P.C. for verification of pleadings is made to the Chairman or the Speaker of the House, he will not get the jurisdiction to give a decision as to whether a member of a House has become subject to disqualification under the Schedule. Paragraph 6 of the Schedule does not contemplate moving of a formal petition by any person for assumption of jurisdiction by the Chairman or the Speaker of the House. Paragraph 6 of the Schedule does not contemplate moving of a formal petition by any person for assumption of jurisdiction by the Chairman or the Speaker of the House. The purpose of Rules 6 and 7 is only this much that the necessary facts on account of which a member of the House becomes disqualified for being a member of the House under Paragraph 2, may be brought to the notice of the Chairman. There is no lis between the person moving the petition and the member of the House who is alleged to have incurred a disqualification. It is not an adversarial kind of litigation where he may be required to lead evidence. Even if he withdraws the petition it will make no difference as the duty is cast upon the Chairman or the Speaker to carry out the mandate of the constitutional provisions, viz. the Tenth Schedule. The object of Rule 6 which requires that every petition shall be signed by the petitioner and verified in the manner laid down in the C.P.C. for the verification of pleadings, is that frivolous petitions making false allegations may not be tiled in order to cause harassment. It is not possible to give strict interpretation to Rules 6 and 7 otherwise the very object of the Constitution (Fifty-second Amendment) Act by which Tenth Schedule was added would be defeated. A defaulting legislator, who has otherwise incurred the disqualification under Paragraph 2, would be able to get away by taking the advantage of even a slight or insignificant error in the petition, and thereby, asking the Chairman to dismiss the petition under sub-rule (2) of Rule 7. The validity of the Rules can be sustained only if they are held to be directory in nature as otherwise on strict interpretation, they would be rendered ultra vires." Sub-section (1) of Sec. 3 of the Act reads as under : "3. Disqualification on ground of defection : (1) Subject to the provisions of Sees. The validity of the Rules can be sustained only if they are held to be directory in nature as otherwise on strict interpretation, they would be rendered ultra vires." Sub-section (1) of Sec. 3 of the Act reads as under : "3. Disqualification on ground of defection : (1) Subject to the provisions of Sees. 4 and 5, a councillor 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 abstention has not' been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention." Section 4 of the Act reads as under : "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 constitute the group representing a 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-sec. (1) of Sec. 3 on the ground,- (i) that he has voluntarily given up membership of his original political 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-sec. (1) of Sec. 3 and to be his original political party for the purposes of this Section." Sub-rule (6) of Rule 3 of the Rules reads as under : "3. Information to be furnished by leader of municipal party or panchayal party. (6) 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 authorised 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 abstention, 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 abstention has or has not been condoned by such political party, person or authority." Rule 5 reads as under : "5. Register of information as to members : (1) The specified officer shall maintain, in Form IV, a register based on the information furnished under Rules 3 and 4 in relation to the councilors or, as the case may be, members. (2) The information in relation to each councilor or member shall be recorded or a separate page in the Register." Rule 6 reads as under : "6. (2) The information in relation to each councilor or member shall be recorded or a separate page in the Register." Rule 6 reads as under : "6. Reference to he made by petitions.- (1) No reference of any question as to whether a councillor or member has become subject to disqualification under the Act shall be made except by a petition in relation to such councillor or member made in accordance with the provisions of this rule. (2) A petition in relation to a councillor or member may be made in writing to the Chief Secretary to the Government of Gujarat or Designated Officer by any other councillor or, as the case may be, member. (3) Before making any petition in relation to any councillor or member, the petitioner shall satisfy himself that there are reasonable ground for believing that a question has arisen as to whether such councillor or member has become subject to disqualification under the Act. (4) Every petition,- (a) shall contain a concise statement of the material facts on which the petitioner relies; and (b) shall be accompanied by copies of the documentary evidence if any, on which the petitioner relies and where the petitioner relies on any information furnished to him by any person a statement containing the names and address of such persons and the gist of such information as furnished by each such person. (5) Every petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908), for the verification of pleadings. (6) Every annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. 7. Procedure :- (I) 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. (2) 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 accordingly. (2) 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 accordingly. (3) 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 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, 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 or the Designated Officer. (4) 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 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. (5) The Chief Secretary or the Designated Officer shall, as soon 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 within respect to such reference in a 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. (6) Whether 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. (6) Whether 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. (7) 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 councillor 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. Rule 10 (as amended) reads as under : "10. A Councillor of Municipal Corporation or the municipality or a member of the panchayat who is elected on the symbol of political party shall while attending any meeting of Municipal Corporation or the municipality or a panchayat ensure whether any mandate is issued by such political party and if any mandate is issued by such political party, he shall obtain such mandate from such political party, or by any person or authority authorized by it. The Chairperson of any meeting of Municipal Corporation or the municipality or a panchayat shall verify that such a mandate has been issued by the political party, and circulated to the Councilor of Municipal Corporation or the member of municipality or a member of the panchayat." 12. The above rules, except Rule 10, and the Rules before the Apex Cour are pari-materia, and therefore, the law laid down by the Apex Court in the case of Dr. Mahachandra Prasad Singh (supra) is squarely applicable to the facts of the present case. The above rules, except Rule 10, and the Rules before the Apex Cour are pari-materia, and therefore, the law laid down by the Apex Court in the case of Dr. Mahachandra Prasad Singh (supra) is squarely applicable to the facts of the present case. What is observed by the Apex Court in Paragraph 15 about, 'for attracting Clause (b), it is necessary that the members of the House (i) either votes or abstains from voting (ii) contrary to any direction issue by the political party to which he belongs or by any person or authority authorize by it in this behalf, (iii) without obtaining the prior permission of such politic a party, person or authority; and (iv) such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention,' is equally applicable to the facts of the present case qua clause (b) of sub-sec. (1) of Sec. 3 of the Act. Clause (b) does not say that the prior permission has to be in writing, and therefore, it can be oral as well and the manner in which the condonation is to be expressed is also indicated. 13. In Paragraph 16, the Apex Court has discussed the object and purpose for which the procedural safeguards are provided so as to prevent undue harassment to the elected councillors or members, but at the same time, it is held that a defaulting legislature or member, who has otherwise incurred the disqualification under Paragraph 2, would not be able to get away by taking the advantage of even a slight or insignificant error in the petition. Therefore, a trivial lacuna in the application cannot be said to be fatal to the finding of the Authority. 14. Therefore, the Rules being procedural and directory, there is no dispute about it and as rightly submitted by the learned Additional Advocate General, even this Court also upheld nature of rule being directory in Letters Patent Appeal No. 376 of 2008 so also the learned Single Judge the case of Devabhai Parbhatbhai Avadia, reported in 2008 (3) GLH 73 : 2008 (4) GLR 3614. 15. 15. In the backdrop of the above declaration of law by the Apex Court and this Court, if the facts already embodied in this petition and as appreciated in the correct perspective by the Designated Authority exercising powers under the Act and the Rules are seen, admittedly, the petitioners were elected as members of Sidhpur Nagarpalika pursuant to the election of Members of Sidhpur Nagarpalika held on 25-10-2005, and subsequently, upon completion of tenure, again, the District Collector issued a notice for convening meeting. Agenda notice dated 30-4-2008 was issued informing the members about election for the post of President and Vice-President of Sidhpur Nagarpalika on 5-5-2008. A three-line Whip dated 5-5-2008 was issued directing the members of the municipality to remain present in the meeting for election for the post of President and Vice-President of Sidhpur Nagarpalika on 5-5-2008 and to vote as per the mandate given by the President of the District Unit of B.J.P., Patan, and any disobedience of the Whip would result into appropriate legal action under the Act and the Rules. The three-line Whip is accompanied by a mandate of the President of the District Unit of B.J.P., Patan. The mandate directed all the members to vote for Smt. Sarvamangalaben H. Thaker for the post of President of Sidhpur Nagarpalika and failure thereto would result into appropriate legal proceedings as per Annexure 'H' and 'I' to the petition (at pages 71 and 72). 16. Annexure 'J', page 73 of the same date reveals that the members, other than the petitioners, received the mandate and three-line Whip dated 5-5-2008 and bearing signatures. The above fact was appreciated by the Designated Authority on the basis of material produced on record, and therefore, the finding of the Designated Authority about proper procedure followed by the party and the authenticity of the Whip and mandate dated 5-5-2008 does not suffer from any vice of illegality. The fact also remains that all the petitioners were present in the meeting where the Whip was read over loudly upon refusal by the petitioners to accept the same and no further action was required by the original political party to serve the Whip, and therefore, also the contention raised by the learned Counsel for the petitioners about non-issuance of Whip/mandate to the petitioners and non-receipt thereof would fall to ground. As rightly submitted by Mr. As rightly submitted by Mr. Ashim Pandya, learned Counsel appearing for the Municipality, nowhere contention was raised about the authority to issue Whip by the party, and therefore also, no contention in this regard can be permitted to be raised in this petition under Art. 226 of the Constitution of India. 16.1. The trivial lacuna in mentioning dates by the applicant before the Designated Authority in Application No. 18 of 2008 is explained by filing further affidavit wherein it is stated that no doubt affidavit was sworn on 15-6-2008, but when it was presented before the Designated Authority on 16-6-2008 it was referred and mentioned as such at the end of the application, and therefore, anomaly is crept in. Such lacuna of a trivial nature and just procedural and explained to the satisfaction of this Court, I do not see any reason to base any conclusion on the above mistake. 16.2. The applicant, who filed the application before the Designated Authority, could establish his facts, and on the basis of material produced before the Authority, it was proved that, though direction/Whip was issued by the President of District Unit of B.J.P., Patan in accordance with the provisions of the Act and the Rules, the petitioners have shown disobedience and it was read over to them, the petitioners voted contrary to the above direction/Whip of the party, and therefore, the burden, as required under Sec. 3 of the Act, stands discharged. It is to be noted that, for the act of the petitioners of disobedience to direction/mandate/Whip of the party, no pardon is accorded by the political party as required under Sec. 4 of the Act, and therefore, the decision of the Designated Authority is just, proper and within four corners of the Act and the Rules. 16.3. As per Rule 10, it is the duty cast upon a member of the panchayat or councillor, as the case may be, to receive mandate issued by such original political party and also to ascertain by obtaining a copy thereof. Therefore, primarily and basically, burden is on the alleged defaulter and unless and until such burden is discharged, a rebuttable presumption would arise that the original political party had issued a mandate and such defaulter acted contrary to it or defied the same. 17. Therefore, primarily and basically, burden is on the alleged defaulter and unless and until such burden is discharged, a rebuttable presumption would arise that the original political party had issued a mandate and such defaulter acted contrary to it or defied the same. 17. Further, as held by the Apex Court in the case of Rajendra Singh Rana v. Swami Prasad Maurya, reported in 2007 (4) SCC 270 : AIR 2007 SC 1035, formation of a group or a split has to be in the original political party and it is to be vertical and not horizontal. Even form of separate group is also not recognized by the original party. 18. The judgment of the Apex Court in the case of Sadashiv H. Patil (supra) is on different facts, and therefore, is not applicable to the facts of the present case. There, in absence of proof of signature on the Whip having been authorized by Jallta Aghadi to issue Whip and violation thereof, in the facts of that case, it was held that Sec. 3(1)(b) would not be applicable. 19. Contentions are raised by learned Counsel for the petitioner that law laid down by the Apex Court by interpreting Schedule X to the Constitution of India and Rules framed by the Speaker of the Assembly cannot be straightaway made applicable in the facts of this case, where the Act in question is framed by the Legislature of the State and Rules framed therein have to be considered. Inter alia, it was also contended that the Speaker of the Assembly or the Parliament, as the case may be, is the Constitutional post and it carries a great weightage and importance of being the Head of the Legislative Assembly or Lok Sabha, as the case may be. Considering the importance of the post of Speaker, if he is empowered to take appropriate steps under the rules framed, faith reposed by the maker of the Constitution and the Parliament while introducing or amending the Schedule to that extent may be justified. But in the facts of this case, powers have been given to the officer of the rank of Secretary, State of Gujarat and such officer being Executive under the influence of the Minister concerned is not expected to act independently, non-arbitrary and reasonable manner, and therefore, also the matter is to be viewed from the above perspective. 19.1. But in the facts of this case, powers have been given to the officer of the rank of Secretary, State of Gujarat and such officer being Executive under the influence of the Minister concerned is not expected to act independently, non-arbitrary and reasonable manner, and therefore, also the matter is to be viewed from the above perspective. 19.1. The above contention of Mr. Prakash Jani, learned Counsel for the petitioner though sound attractive, but cannot be accepted inasmuch as the Act in question in the petition is no doubt framed by the State Legislative Assembly enjoining rule making power subject to placement before the Assembly and if the overall scheme of the Act and Rules is perused there is no difference in substance or form with that of the Paragraphs of Schedule X of the Constitution of India. Therefore, the above aspect interpreting Rules 6 and 7 being directive was taken into consideration by the learned Single Judge of this Court in second Parbatbhai's case and considering the same there is no hesitation in holding that Rules 6 and 7 are directive in nature. That Secretary of the State of Gujarat, who is to function as Designated Authority under the Act is a high-ranking officer and head of the Department holding senior position as Executive in the State administration. At the same time, powers to be exercised and duties to be discharged by such Designated Authority are governed by the provisions of the Act and Rules and subject to the Court exercising powers under Arts. 226 and 227 of the Constitution of India in case if challenge is made against legality or validity of exercise of such power. Therefore, there is enough check if such Designated Authority acts contrary to law or decisions or authorities as propounded by High Court or Apex Court. Besides, if the Speaker is to deal with a case of an elected representatives of the Assembly or the Parliament, as the case may be, the Designated Authority, ordinarily, an officer of the level of Secretary to the State, has to deal with elected members/councillors of the panchayat or municipality, as the case may be. Besides, if the Speaker is to deal with a case of an elected representatives of the Assembly or the Parliament, as the case may be, the Designated Authority, ordinarily, an officer of the level of Secretary to the State, has to deal with elected members/councillors of the panchayat or municipality, as the case may be. Therefore, looking to the functions and duties to be performed by members or councillors of panchayat or municipality under relevant State Acts, comparison cannot be drawn with the duties and functions to be discharged by elected representative of the Assembly or the Lok Sabha. Thus, comparison between the two authorities under the Act and the Schedule and persons attracting disqualification is hypothetical and no conclusion can be drawn when they are not as such similarly situated. 19.2. If the contentions raised by learned Counsel for the petitioners are examined in the context of the evidence on record and findings of the Designated Authority, this Court has to keep in mind that the parameters laid down by the Apex Court in Kihata Hallahan (supra) are very limited and it is to be judged only where the decision of the Designated Authority is confined to jurisdictional errors viz. infirmities based on violation of constitutional mandate, mala fides, non-compliance of principles of natural justice and perversity. If the above parameters are applied in the facts of this case, none of the grounds is available to the petitioner to challenge much less to be reviewed by this Court while exercising powers under Arts. 226 and 227 of the Constitution of India. 20. As a result of foregoing discussion, all the contentions on facts as well as on law raised by the learned Counsel for the petitioners fail. 21. In the result, this petition is rejected. Notice is discharged with no order as to costs. The interim relief stands vacated. 22. Mr. Pravin Panchal for Mr. P. K. lani, learned Counsel for the petitioners requests to stay implementation of this order. The said request is opposed by Mr. Ashim Pandya, learned Counsel for respondent No. 1. Considering the facts of the case, I also do not find any reason to stay the order. Hence, this request is rejected. (SBS) Petition dismissed.