ORAL JUDGMENT 1. By way of this petition under Article 226/227 of the Constitution of India, the petitioners -Municipal Councilors of Himmatnagar Nagarpalika have prayed for an appropriate writ, order and/or directions quashing and setting aside the impugned judgement and order dtd.15/10/2009 passed by the appropriate authority under the Gujarat Provision For Disqualification of Members of Local Authorities For Defection Act, 1986 (hereinafter referred to as the Act for short) Commissioner of Information and Broadcasting, by which the respective petitioners are disqualified as Councilors of the Himmatnagar Nagarpalika under sec.3(1)(a) and 3(1)(b) of the Act. The respective petitioners have also challenged the provisions of Rule 10 of the Gujarat Provision For Disqualification of Members of Local Authorities For Defection Rules, 1987 (hereinafter referred to as the Rules for short) as inserted by the impugned notification dtd.13/2/2007 as ultra vires to provisions of Sec.8 of the Act. 2. Facts leading to the present Special Civil Application in nutshell are as under:- 3. All the petitioners are the Municipal Councilors of Himmatnagar Nagarpalika. The petitioners belong to National Political Party Bhartiya Janata Party and it is admitted position that all of them contested the election as Councilors of the Nagarpalika on the ticket of Bhartiya Janata Party. It appears that the term of the President of the Himmatnagar Nagarpalika was to expire on 8/5/2008 and therefore, the District Collector appointed the Deputy Collector, Himmatnagar by order dtd.28/4/2008 to preside over and to conduct the meeting on 8/6/2008 to hold the election of the President of the Himmatnagar Nagarpalika. It appears that even the Vice President of the Nagarpalika also tendered his resignation and therefore, the said office was also required to filled in by holding bye election. That the meeting of the Councilors was called and convened on 6/5/2008 by the District Collector, Himmatnagar at 11.00 a.m. at the Meeting Hall of Himmatnagar Nagarpalika. It is the case on behalf of the respective petitioners that in the said meeting the petitioner No.1 came to be elected as the President of the Himmatnagar Nagarpalika whereas one Ushaben Pradipkumar Patel was elected as Vice President of the Himmatnagar Nagarpalika. It appears that one Jayantibhai Devabhai Patel contested the election for the post of the President and he lost against petitioner No.1 by margin of 7 votes. It appears that one Jayantibhai Devabhai Patel contested the election for the post of the President and he lost against petitioner No.1 by margin of 7 votes. It appears that the respondent No.4 herein filed a petition on 26/5/2008 for making a reference under the provisions of Rule 6 of the Rules before designated officer to disqualify the petitioners under the provisions of the Act by contending inter-alia that the respective petitioners have incurred disqualification under sec.3 of the Act. It was alleged and contended by the respondent No.4 that there was split issued by the leader of the President of the Sabarkantha District Bhartiya Janata Party i.e. one Pruthviraj Patel to the petitioners and all other Councilors belonging to Bhartiya Janata Party to cast their votes only in favour of Jayantibhai Devabhai Patel and dispute that the petitioners acted contrary to the mandate/whip and directions issued by the Bhartiya Janata Party i.e. the President of the Sabarkantha District Bhartiya Janata Party and therefore, they have incurred disqualification under sec.3(1)(b) of the Act. It was further alleged that even the respective petitioners have incurred disqualification under sec.3(1)(a) of the Act as the respective petitioners have voluntarily given up their membership of Bhartiya Janata Party. It appears that along with the said application on 26/5/2004 the respondent No.4 also presented list of documents under a Production Application together with the clarification inclusive of the affidavits of various persons/councilors inclusive of the affidavit of Pruthviraj Patel, President of the Sabarkantha District Bhartiya Janata Party in support of their contention with respect to mandate and direction issued. That the designated officer respondent No.3 issued notice to the petitioners and other respondents of the said application including the petitioner No.2 herein that the petitioners and other respondents of the said application filed a written reply before designated officer on 18/6/2008 denying having received any mandate issued by the said Pruthviraj Patel and denying the contents of the affidavit of said Pruthviraj Patel by further taking the defence that the petitioners formed the group and they were more than 1/3rd of councilors, that is not disqualification even under sec.3(1)(a) of the Act. That the respondent NO.4 filed rejoinder on 23/6/2008. That the respondent NO.4 filed rejoinder on 23/6/2008. It appears that there was some dispute with respect to the further proceedings and therefore, the petitioner Nos.2 and 11 approached this Court by way of Special Civil Application Nos.6492 of 2009 and the said Special Civil Application came to be disputed of in view of the statement made by the learned Additional Advocate general appearing on behalf of the respondent Nos.1 and 3 in the said Special Civil Application. That thereafter the petitioners' application was heard by the designated officer on 7/7/2009, by which the application of the petitioners to cross examine Pruthviraj Patel came to be rejected. That the said land came to be challenged by way of Special Civil Application No.7271 of 2009 and the learned Single Judge vide order dtd. 7/10/2009 rejected the said Special Civil Application. Being aggrieved by and dissatisfied with the order passed by the learned Single Judge passed in Special Civil Application No.7271 of 2001, the petitioners preferred Letters Patent Appeal No. 2321 of 2009 before the Vacation Judge. At the time when the present petition was filed, the said Letters Patent Appeal was pending, however, it is reported that the said Letters Patent Appeal is now disposed of with an observation that it will be open for the respective petitioners to take ground while challenging the final decision of the designated authority. That thereafter the designated authority has passed the impugned order dtd.15/10/2009 disqualifying the respective petitioners from the post of councilors of the Himmatnagar Nagarpalika, both under sec.3(1)(a) and 3(1)(b) of the Act. Feeling aggrieved and dissatisfied with the impugned order passed passed by the designated authority -the respondent No.3 herein dtde.15/10/2009 disqualifying the respective petitioners as the councilors of the Himmatnagar Nagarpalika have preferred present Special Civil Application under Article 226/227 of the Constitution of India. 4. Mr.Vaghela, learned advocate appearing on behalf of Mr.P.S. Champaneri, learned advocate appearing for the respective petitioners have made the following submissions in support of his prayer to quash and set aside the impugned order passed by the designated authority disqualifying the petitioners as councillors of Himmatnagar Nagarpalika:- i. That the petitioners are challenging rule 10 of the Rules as unconstitutional and ultra vires to sec.8 of the Act. That Special Civil Application Nos. That Special Civil Application Nos. 38 and 45 of 2009 in which Rule 10 of the Rules is challenged, are admitted and the leanred Single Judge had granted the interim relief to continue the councilors who are disqualified as councilors but without any voting rights. Therefore, it is submitted that the present petition be also admitted and the interim relief be granted. ii. That the respective petitioners are denied their valuable rights to cross examine Pruthviraj Patel and it has prejudiced the case of the respective petitioners. That the respective petitioners specifically denied the contents of the affidavit of Pruthviraj Patel more particularly para (A) to (D) of the Affidavit, by which it was alleged that the said Pruthviraj Patel had issued mandate/direction to all the councilors belonging to Bhartiya Janata Party inclusive of the petitioners and that it was specifically denied that any mandate was received by the respective petitioners. Therefore, it is submitted thast the respective petitioners ought to have been given opportunity to cross examine the said Pruthviraj Patel. iii. That the respective petitioners were not given sufficient opportunity to make the oral submission. iv. That there was no specific case of the respondent No.4 with respect to disqualification of the respective petitioners under sec.3 (1)(a) of the Act. v. That the petitioners have never incurred disqualification either under sec.3(1)(a) of the Act or under sec.3(1)(b) of the Act. vi. That the petitioners and the concerned respondents of the application (12 in numbers) formed a group which was more than 1/3rd councilors belonging to Bhartiya Janata Party (there was 28 elected councilors belong to Bhartiya Janata Party) and therefore, the respective petitioners have not incurred disqualification. 5. Mr.Vaghela, learned advocate appearing on behalf of the petitioners has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Jagjit Singh Vs. State of Haryana and others, reported in (2006) 11 SCC 1 in support of his submission that the respective petitioners ought to have been given opportunity to cross examine Pruthviraj Patel who had alleged to have issued mandate/direction to the councilors of the Nagarpalika belong to the Bhartiya Janata Party. No other submissions have been made. By making above submissions and relying upon aove decision, it is requested to allow present Special Civil Application. 6. No other submissions have been made. By making above submissions and relying upon aove decision, it is requested to allow present Special Civil Application. 6. The petition is opposed BY Mr.Tushar Mehta, learned Additional Advocate General appearing on behalf of the respondent Nos.1, 3 and 5 and Mr.Asim Pandya, learned advocate appearing on behalf of the respondent No.4. 7. Mr.Tushar Mehta, learned Additional Advocate General has submitted that without further entering into the controversy with respect to whether the respective petitioners have incurred disqualification under sec.3(1)(b) of the Act or not and whether the respective petitioners were rightly denied the permission to cross examine the Pruthviraj Patel or without further entering into the question of validity of Rule 10, the respective petitioners have incurred disqualification under sec.3(1)(a) of the Act and therefore, the impugned order is not required to be quashed and set aside. It is submitted that the respective petitioners have formed a separate group and cast their votes in favour of the petitioner No.2 (belonging to other party) and thus they have voluntarily given up their membership and therefore, they have incurred disqualification under sec.3(1)(a) of the Act. It is further submitted that in the reply itself the respective petitioners have admitted that as there was a dispute with respect to candidature of President, the petitioners and other respondents of the application formed a separate group. Therefore it is submitted that the conduct of the petitioners itself is suggestive of giving up voluntary giving up membership of Bhartiya Janata Party of whom they belonged. It is further submitted that as such split at the municipality level and/or local level will not come to rescue of the petitioners as the Bhartiya Janata Party is a National Political Party and there shall be a slit at the national level and therefore, even if more than 1/3rd councilors have formed separate group, still the respective petitioners have incurred disqualification under sec.3(1)(a) of the Act. It is submitted that as such the aforesaid controversy is now not res-integra in view of the decision of the Hon'ble Supreme Court in the case of Jagjit Singh Vs. State of Haryana and others, reported in (2006) 11 SCC 1 and decision of the Constitutional Bench of the Hon'ble Supreme Court in the case of Rajendra Singh Rana and others Vs. State of Haryana and others, reported in (2006) 11 SCC 1 and decision of the Constitutional Bench of the Hon'ble Supreme Court in the case of Rajendra Singh Rana and others Vs. Swami Prasad Mayura, reported in AIR 2007 S.C. 1305 , more particularly paragraph Nos.38, 48 and 49. 8. It is further submitted that the respondent No.4 has specifically pleaded in the application, and more particularly in the reply of the application for execution of the Pruthiviraj Patel (copy of which was given to the respective petitioners) with respect to disqualification of the petitioners under sec.3(1)(a) of the Act and the respective petitioners have also pleaded that they have not rendered any disqualification as they have formed a separate group of 12 councilors I.e. more than 1/3rd of the elected councilors belonging to Bhartiya Janata Party. It is submitted that it cannot be said that the respective petitioners are not given opportunity to submit the case with respect to disqualification under sec.3(1)(a) of the Act. 9. It is further submitted by Mr.Tushar Mehta, learned Additional Advocate General that sufficient opportunity has been given to the respective petitioners to submit their case and even the respective petitioners have also submitted their written submissions and written submissions have been considered and dealt with by the respondent No.3 ? Designated Authority. By making above submissions and relying upon the above decisions it is requested to dismiss the present Special Civil Application. 9. Heard the learned advocates appearing on behalf of the respective parties at length. 10. Designated Authority. By making above submissions and relying upon the above decisions it is requested to dismiss the present Special Civil Application. 9. Heard the learned advocates appearing on behalf of the respective parties at length. 10. At the outset, it is required to be noted that under the provisions of the Act more particularly under sec.3, a councilor or a member belonging to any political party shall be disqualified for being a council or a member in case of two eventualities namely [i] if he has voluntarily given up his membership of such political party; or [ii] 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. The relevant provision with respect to disqualification of a candidate or a member on the ground of defection is as under:- Sec.3.Disqualification on ground of defection. 1. Subject to the provisions of Sections 4 and 5, a councilor or a member belonging to any political party shall be disqualified for being a councilor 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. In the backdrop of above statutory position the present petition is required to be considered and dealt with. 11. In the backdrop of above statutory position the present petition is required to be considered and dealt with. 11. It is an admitted position aht the respective petitioners and other respondents of the application were elected as councilors of the Himmatnagar Nagarpalika on the ticket of a political party, Bhartiya Janata Party which is a national political party. It is admitted position that the respective petitioners cast their votes in favour of a candidate (petitioner No.2) belonging to other political party. In reply to the application filed by the respective petitioners it is specifically admitted by the respective petitioners that as there was difference of opinion with respect to candidature of the President, the respective petitioners and other four councilors who are respondents in the main application, formed a separate group. Therefore, it can safely be said that the respective petitioners and others have voluntarily given up their membership of the Bhartiya Janata Party on whose ticket they contested the election and they were elected. 12. The respondent No.4 approached the Designated Authority by submitting application alleging inter-alia that the respective petitioners have incurred disqualification under sec.3 of the Act. Sec.3 includes sec.3(1)(a) and 3(1)(b) of the Act. From the proceedings and record i.e. application or reply to the various application and the replies filed by the respective petitioners it appears that the attention of the respective petitioners were drawn drawn with respect to alleged disqualification under sec.3(1)(a) as well as under sec.3(a)(b) of the Act. Even the respective petitioners also submitted and pleaded that as the respective petitioners have and other councilors (12 in numbers) formed a separate group which was more than1/3rd of the councilors belong to Bhartiya Janata Party, they have not rendered any disqualification as per sec.4 of the Act. It appears from the impugned order that the designated authority has passed the authority disqualifying the petitioners and others as councilors of Himmatnagar Nagarpalika, both under sec.3(1)(a) and under sec.3(1)(b) of the Act. Number of submissions have been made by the learned advocates appearing on behalf of the respective parties with respect to the disqualification under sec.3(1)(a) as well as 3(1)(b) of the Act. Number of submissions have been made by the learned advocates appearing on behalf of the respective parties with respect to the disqualification under sec.3(1)(a) as well as 3(1)(b) of the Act. However, as the impugned order passed by the designated authority disqualifying the respective petitioners as councilors of the Himmatnagar Nagarpalika under sec.3(1)(a) of the Act can be sustained, this Court is not entering into other controversy and the dispute with respect to disqualification of the respective petitioners under sec.3(1)(b) of the Act. Therefore, this Court is not further entering into the question/dispute with respect to challenging the validity of rule 10 of the Rules and/or whether the respective petitioners were rightly denied the permission to cross examine Pruthviraj Patel and/or whether any prejudice has been caused to the respective petitioners by not giving permission to the respective petitioners to cross examine Pruthviraj Patel and/or whether there was a valid mandate and/or whether the respective petitioners received the mandate from the President of the Bhartiya Janata Party or not. Therefore, this Court is not considering anything on merits with respect to the disqualification of the respective petitioners under sec.3(1)(b) of te Act, as, as stated above, the impugned order passed by the designated authority can be sustained on the ground that the respective petitioners have incurred disqualification even under sec.3(1)(a) of the Act (for the reasons stated hereinafter). Therefore,this Court is not considering the challenge to the Rule 10of the Rules. Even otherwise, ti is to be noted that in the Special Civil Application Nos. 38 and 45 of 2009 rule 10 of the Rules is challenged and the learned Single Judge has granted restricted interim relief and to permit those candidates who are disqualified as councilors but without any voting rights. Therefore, so far as the election of the President of the Vice President and the Vice President as the case may be of the Himmatnagar Nagarpalika is concerned, even considering the interim order passed by the learned Single Judge in the aforesaid Special Civil Applications, the respective petitioners cannot have any right to vote. Therefore, there is no question of permitting the respective petitioners to cast their votes in the meeting of the election of the President which is now scheduled on 4/11/2009. Therefore, there is no question of permitting the respective petitioners to cast their votes in the meeting of the election of the President which is now scheduled on 4/11/2009. The aforesaid observation is only to point out that even in a petition in which Rule 10 is challenged, limited interim relief has been granted, however, as stated above, in the present petition, this Court is not further considering the legality and validity of the Rule 10 of the Rules and it will be open for the respective petitioners to challenge the same by way of appropriate petition, as, as stated hereinabove, the impugned order passed by the designated authority can be sustained with respect to disqualification of the respective petitioners as councilors under sec.3(1)(a) of the Act. 13. Now, so far as whether the respective petitioners have incurred disqualification under sec.3(1)(a) of the Act or not and whether they can get benefit of sec.4 of the Act or not, that is the only question which is considered by this Court. It is admitted position that there were 28 councilors of the Nagarpalika elected on the ticket of the Bhartiya Janata Party inclusive of the petitioners and it is also admitted and so pleaded in the reply to the application by the respective petitioners that as there was a dispute and difference of opinion with respect to candidature of the President, the petitioners and other respondents of the application (12 in numbers) formed a separate group and therefore, there was a split. Therefore, it is the case on behalf of the petitioners that number of councilors who formed the separate group on split was more than 1/3rd of the elected councilors belonging to Bhartiya Janata Party, they have not rendered disqualification under sec.3 (1)(a) of the Act, as their disqualification is saved under sec.4 of the Act. Now the aforesaid question is squarely covered by two decisions of the the Hon'ble Supreme Court namely in the case of Jagjitsinh (supra) and Rajendra Singh Rana (supra). Identical question came to be considered by the Constitutional Bench of the Hon'ble Supreme Court in the case of Rajendra Singh Rana (supra). Now the aforesaid question is squarely covered by two decisions of the the Hon'ble Supreme Court namely in the case of Jagjitsinh (supra) and Rajendra Singh Rana (supra). Identical question came to be considered by the Constitutional Bench of the Hon'ble Supreme Court in the case of Rajendra Singh Rana (supra). The question posed for consideration before the Hon'ble Supreme Court was whether in a case where a political party is a national party with respect to getting benefit under sec.4 of the Act, there shall be a split at the national level or local level. The Hon'ble Supreme Court in para 38 has observed and held as under:- 38. Acceptance of the argument that the legislators are wearing two hats, one as members of the original political party and the other as members of the legislature and it would be sufficient to show that one third of the legislators have formed a separate group to infer a split or to postulate a split in the original party, would militate against the specific terms of paragraph 3. That paragraph speaks of two requirements, one, a split in the original party and two, a group comprising of one third of the legislators separating from the legislature party. By acceding to the two hat theory one of the limbs of paragraph 3 would be made redundant or otios. An interpretation of that Page 1015 nature has to be avoided to the extent possible. Such an interpretation is not warranted by the context. It is also not permissible to assume that the Parliament has used words that are redundant or meaningless. We, therefore, overrule the plea that a split in the original political party need not separately be established if a split in the legislature party is shown. 15. Even with respect to inference whether when it can be said that the concerned councilor, MLA has voluntarily given up membership, the Hon'ble Supreme Court in para 48 and 48 has observed and held as under:- 48. The act of giving a letter requesting the Governor to call upon the leader of the other side to form a Government, itself would amount to an act of voluntarily giving up the membership of the party on whose ticket the said members had got elected. Be it noted that on 26.8.2003, the leader of their party had recommended to the Governor, a dissolution of the Assembly. Be it noted that on 26.8.2003, the leader of their party had recommended to the Governor, a dissolution of the Assembly. The first eight were accompanied by Shivpal Singh Yadav, the General Secretary of the Samajwadi Party. In Ravi Naik (supra) this Court observed: A person may voluntarily give up his membership of an original political party even though he has not tendered his resignation from the membership of that party. Even in the absence of a formal resignation from the membership, an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs. 49. Clearly, from the conduct of meeting the Governor accompanied by the General Secretary of the Samajwadi Party, the party in opposition and the submission of letters requesting the Governor to invite the leader of that opposition party to form a Government as against the advise of the Chief Minister belonging to their original party to dissolve the assembly, an irresistible inference arises that the 13 members have clearly given up their membership of the BSP. No further evidence or enquiry is needed to find that their action comes within paragraph 2(1)(a) of the Tenth Schedule. Then the only question is whether they had shown at least prima facie that a split had occurred in the original political party on 26.8.2003 and they had separated from it along with at least 24 others, so as to make up one-third of the legislature party. 16. Similar view has been taken by the Hon'ble Supreme Court in the case of Jagjit Singh (Supra). Considering the aforesaid two decisions, more particularly decision of the Constitutional Bench of the Hon'ble Supreme Court in the case of Rajendra Singh Rana and the facts of the case on hand, even if the respective petitioners and others have formed a separate group (12 in numbers) being more than 1/3rd of the elected members. The councilors of the Nagarpalika belonging to Bhartiya Janata Party as there is no split at the national level, the respective the petitioners cannot get benefit under sec.4 of the Act, considering the aforesaid decision of the Hon'ble Supreme Court more particularly in the case of Rajendra Singh Rana (supra). In view of the aforesaid facts and circumstances, the respective petitioners and others (12 in numbers) have incurred disqualification under sec.3(1)(a) of the Act. In view of the aforesaid facts and circumstances, the respective petitioners and others (12 in numbers) have incurred disqualification under sec.3(1)(a) of the Act. It is to be noted that Mr.Vaghela, learned advocate appearing on behalf of the respective petitioners is not in a position to seriously dispute that the respective petitioners have voluntarily given up their membership of the political party they belonged to. Even otherwise, considering the conduct of the petitioners and even their admission that they have formed separate group and considering the aforesaid decision of the Hon'ble Supreme Court in the case of Rajendra Singh Rana, more particularly para 48 and 49, it can be safely be said that the respective petitioners have voluntarily given up their membership of Bhartiya Janata Party of whom they belonged to. 17. Under the circumstances it cannot be said that the impugned order passed by the designated authority disqualifying the respective petitioners and others as councilors of the Himmatnagar Nagarpalika under sec.3(1)(a) of the Act is in any way erroneous and/or illegal and/or perverse which calls for interference of this Court in exercise of the powers under Article 226/227 of the Constitution of India. As stated hereinabove, the designated authority is justified in declaring the respective petitioners as disqualified as councilors of the Himmatnagar Nagarpalika under sec.3(1)(a) of the Act. The respective petitioners are not entitled to benefit of sec.4 of the Act in view of the decision of the Hon'ble Supreme Court as there is no split at the national level. 18. In view of the above and for the reasons stated above, there is no substance in the present petition, it deserves to be dismissed and is accordingly dismissed. 19. At this stage, Mr.Vaghela, learned advocate appearing on behalf of the petitioners has requested to stay the present order so as to enable the respective petitioners to challenge the present judgement and order before the appellate forum. 20. The prayer is opposed by Mr.Asim Pandya, learned advocate appearing on behalf of the respondent No.4 and Mr.Tushar Mehta, learned Additional Advocate General appearing on behalf of the respondent Nos.1, 3 and 5, by submitting that the election of the President is required to be held within 25 days of the vacancy and next meeting is scheduled on 4/11/2009. 21. The prayer is opposed by Mr.Asim Pandya, learned advocate appearing on behalf of the respondent No.4 and Mr.Tushar Mehta, learned Additional Advocate General appearing on behalf of the respondent Nos.1, 3 and 5, by submitting that the election of the President is required to be held within 25 days of the vacancy and next meeting is scheduled on 4/11/2009. 21. Considering the above and even otherwise considering the aforesaid observations made by this Court, as the respective petitioners have incurred disqualification under sec.3(1)(a) of the Act, prayer to stay the present order is hereby rejected. However, it is observed and it goes without saying that the election of the President to be held on 4/11/2009 is always subject to the decision that might be taken in Letters Patent Appeal that may be filed, if the same is filed at the earliest.