JUDGMENT 1. By way of this petition under Article 226 of the Constitution of India, the petitioners, who are disqualified as Members / Councilors of Chhota Udepur Nagar Palika under the provisions of the Gujarat Provision for Disqualification of Members of Local Authorities for Defection Act, 1986 (hereinafter referred to as “the Act” for short), have prayed for appropriate writ, order and/or direction quashing and setting aside the impugned order dtd.25/5/2009 passed by the Designated Appropriate Authority under the Act by which the petitioners are disqualified as Councilors / Members of Chhota Udepur Nagar Palika by holding that the respective petitioners have incurred disqualification as they have committed breach of the mandate issued by the political party of which they belonged and on whose ticket they were elected as Members of the Chhota Udepur Nagar Palika. By way of amendment, the petitioners have also prayed for interim relief restraining the State Election Commission from filling up the vacancies created pursuant to the impugned order in Chhota Udepur Municipality, as the State Election Commission has issued a Notification in the month of November, 2009 for election of the posts of Members which had fallen vacant pursuant to the impugned order. 2. Facts leading to the present Special Civil Application, in nutshell, are as under:- 3. All the petitioners came to be elected as Members of the Chhota Udepur Nagar Palika in the general elections held on 17/2/2008 on the symbol of a political party - Bhartiya Janata Party. That the election to the post of the President and the Vice President of the Nagar Palika was scheduled on 5/3/2008. It was the case on behalf of the original applicants that there was a mandate by the aforesaid political party to cast their votes in favour of one Narendrabhai Jayswal (as President) and one Mehulbhai Patel (as Vice President) and despite the mandate the respective petitioners cast their votes against the mandate of the aforesaid political party. Therefore, the respondent Nos.2 and 3 herein approached the respondent No.1 - Competent appropriate Authority appointed under the Act seeking disqualification of the petitioners contending inter-alia that as the respective petitioners have acted and cast their votes against the mandate of the party, and they have incurred disqualification under sec.3(1)(b) of the Act. An application was submitted before the respondent No.1 to disqualify the respective petitioners as Members of the Nagar Palika. An application was submitted before the respondent No.1 to disqualify the respective petitioners as Members of the Nagar Palika. The respective petitioners were served with the notice from the office of the respondent No.1 on the Petition No.21 of 2008 filed by the respondent Nos.2 and 3 under sec.3(1)(b) of the Act. It was specific case on behalf of the respondent Nos.2 and 3 that the President of the Bhartiya Janata Party, Vadodara Unit as well as the President of the Bhartiya Janata Party of the State Unit have given mandate on 5/3/2008 and directed all the members of the Chhota Udepur Nagar Palika belong to Bhartiya Janata Party to cast their votes in favour of the aforesaid two candidates only. The respondent Nos.2 and 3 produced documents by way of communication / mandate dtd.5/3/2008. All the petitioners appeared before the respondent No.1 and submitted a detailed reply dtd.15/6/2008. It was the specific case on behalf of the petitioners that as the mandate by the party was in favour of a candidate belonging to Bahujan Samaj Party (B.S.P.) and as they were of the opinion that the same was not in their interest, they resigned from the Bhartiya Janata Party and they formed a separate group and therefore, assuming that there was a mandate, the same was not binding to them. It was further submitted that though the mandate was read over by one Mehulbhai Patel, as one another member objected to them, the same could not be read and therefore, they were personally not aware of such a mandate by the Bhartiya Janata Party. Therefore, it was requested to withdraw the notice by holding that they have not incurred any disqualification under sec.3(1)(b) of the Act as there is no breach of mandate by them. During the course of hearing before the respondent No.1 the petitioners submitted affidavit dtd.6/10/2008 before the designated authority submitting that the District President of the Bhartiya Janata Party, Vadodara Unit was not having any authority to issue mandate by State Unit and the State Unit of the Bhartiya Janata Party had not issued any mandate. It is to be noted that in the meantime, all the petitioners were suspended from the Bhartiya Janata Party by suspension order dtd.10/3/2008 and the explanation of the respective petitioners were called for. It is to be noted that in the meantime, all the petitioners were suspended from the Bhartiya Janata Party by suspension order dtd.10/3/2008 and the explanation of the respective petitioners were called for. It was the case on behalf of the respective petitioners subsequently before the appropriate authority, more particularly in the month of February, 2009 that subsequently explanation of the respective petitioners came to be accepted by the party and the respective petitioners came to be continued as Members of the Bhartiya Janata Party and it was the case on behalf of the petitioners that the Secretary of the Bhartiya Janata Party, State Unit vide communication dtd.14/2/2009 addressed a letter to the respondent Nos.2 and 3 herein to withdraw the Application No.21 of 2008 and therefore, the petitioners requested the respondent No.1 - designated authority to dismiss the application in view of the subsequent development and the communication by Secretary of the Bhartiya Janata Party, State Unit dtd.14/2/2009. That thereafter, the said application came to be heard by the respondent No.1 - designated authority on 20/2/2009 and for the first time, the petitioners came out with a case that the President of the Bhartiya Janata Party, State Unit condoned the action of the petitioners of having commiting breach of the mandate of the party on 19/3/2008 itself and therefore, it was contended on behalf of the petitioners that as the action of the petitioners was condoned by the party, there is no question of disqualifying the petitioners under sec.3(1)(b) of the Act. It was further submitted on behalf of the petitioners that even otherwise in view of the communication dtd.14/2/2009 the Secretary of the Bhartiya Janata Party, State Unit itself addressed a letter to the respondent Nos.2 and 3 to withdraw the Disqualification Application No.21 of 2008 as the suspension of the respective petitioners from the party was withdrawn and it was requested to dismiss the said application. It was the specific case on behalf of the respondent Nos.2 and 3 that as such there was no condonation of the action of the petitioners by the President of the Bhartiya Janata Party, State Unit on 19/3/2008 as alleged by the petitioners and the said communication dtd.19/3/2008 is nothing but afterthought and backdated. It was the specific case on behalf of the respondent Nos.2 and 3 that as such there was no condonation of the action of the petitioners by the President of the Bhartiya Janata Party, State Unit on 19/3/2008 as alleged by the petitioners and the said communication dtd.19/3/2008 is nothing but afterthought and backdated. It was submitted that even at the time when the petitioners filed the reply to the show cause notice on 15/6/2008 and even thereafter when affidavits were filed on 6/10/2008 it was never the case of the petitioners that the action of the petitioners has been condoned by the President of the Bhartiya Janata Party, State Unit on 19/3/2008. After considering the submissions made by the rival parties, the designated authority - respondent No.1 passed the impugned order disqualifying the respective petitioners under sec.3(1)(b) of the Act holding that the respective petitioners have committed breach of the mandate issued by the Party and they have incurred disqualification under sec.3(1)(b) of the Act. Being aggrieved and dissatisfied with the impugned order passed by the respondent No.1 - designated authority in disqualifying the respective petitioners as Members of the Chhota Udepur Nagar Palika under sec.3(1)(b) of the Act, the petitioners have preferred the present Special Civil Application under Article 226/227 of the Constitution of India. 4. Mr.N.K. Pahwa, learned advocate appearing on behalf of the petitioners has made the following submissions in support of his prayer to allow the present Special Civil Application by quashing and setting aside the impugned order passed by the respondent No.1 - Designated Authority:- i. In view of the condonation of the action of the petitioners by the President of the Bhartiya Janata Party, State Unit on 19/3/2008, once the party has condoned the action of the petitioners as per 3(1)(b) of the Act there cannot be any disqualification. ii. After the petitioners were suspended from the Bhartiya Janata Party on 10/3/2008, the respective petitioners gave explanation to the political party to which they belonged to and thereafter not only the President of the Bhartiya Janata Party condoned the action of the petitioners on 19/3/2008 but subsequently even their suspension came to be revoked and therefore, the impugned disqualification deserves to be quashed and set aside. iii. iii. There was no mandate issued by the State Unit of the Bhartiya Janata Party and/or the President of the Bhartiya Janata Party, Vadodara Unit was not authorised to issue such a mandate and even otherwise the mandate was not served upon the petitioners and/or brought to the notice of the petitioners. iv. Mr.Pahwa, learned advocate appearing on behalf of the petitioners has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Sadashiv H. Patil Vs. Vithal D. Teke and others, reported in (2000) 8 SCC 82 , more particularly para9 by submitting that as held by the Hon'ble Supreme Court in the said decision in absence of proof by producing resolution of the aghadi that the signatories of the whip had been authorised by the aghadi to issue the whip, the alleged violation of the whip would not attract disqualification under sec.3(1)(b) of the Act. It is further submitted that as held by the Hon'ble Supreme Court in the aforesaid decision, to incur disqualification under the Act, there must be, (a) direction and such direction must be either by the party, aghadi or front to which the Councilor belongs, or, (b) by any person or authority authorised in their behalf. It is submitted that as held by the Hon'ble Supreme Court mere resolution is not a substitute for direction. v. That other petitions challenging the vires of Rule 10 of the Defection Rules, 1987 are admitted and are pending for final hearing. vi. Mr.Pahwa, learned advocate appearing on behalf of the petitioners has also relied upon one order passed by the learned Single Judge of this Court in Special Civil Application No. 283 of 2009, whereby the learned Single Judge dismissed the said Special Civil Application confirming the order passed by the designated authority, whereby the application of the petitioners to disqualify the Members under sec.3(1)(b) of the Act was rejected. It is submitted by Mr.Pahwa, learned advocate appearing on behalf of the petitioners that in the said petition a contention was raised that the condonation of action was beyond the period of 15 days and as such declaration for such condonation was not filed in accordance with Rule 3 and therefore despite the condonation which was beyond the period of 15 days the Councilor / Member would render disqualification and still the learned Single Judge dismissed the said Special Civil Application. It is submitted that in the present case, as such, though according to the petitioners the condonation of the action of the petitioners was on 19/3/2008 i.e. within a period of 15 days, assuming that the same was produced subsequently, the designated authority ought to have accepted the said condonation and ought to have dismissed the application submitted by the respondent Nos.2 and 3 and ought not to have disqualified the petitioners under sec.3(1)(b) of the Act. By making above submissions and relying upon the above decisions, it is requested by Mr.Pahwa, learned advocate appearing on behalf of the petitioners to allow the present Special Civil Application. It is submitted by Mr.Pahwa, learned advocate appearing on behalf of the petitioners that in view of the above, the present petition deserves to be admitted and/or in the meantime, the Election Commissioner be restrained from filling up the posts of the petitioners as the Notification for fresh election has been now issued. Therefore, it is requested to grant ad-interim relief as prayed for restraining the State Election Commission from filling upon the posts occupied by the petitioners. 5. The petition is opposed by Mr.M.R. Mengdey, learned Assistant Government Pleader, Mr.Japan V. Dave, learned advocate appearing on behalf of the respondent Nos.2 and 3 and Mr.N.V. Anjaria, learned advocate appearing on behalf of the respondent No.4 - State Election Commission. 6. Mr.Dave, learned advocate appearing on behalf of the respondent Nos.2 and 3, relying upon the Affidavit in reply, has vehemently submitted that the so-called communication dtd.19/3/2008 is nothing but afterthought and backdated and the same is rightly not believed by the designated authority. It is submitted that the respective petitioners submitted their reply to the show cause notice in the aforesaid application before the designated authority on 15/6/2008 and there was no reference to such a condonation of the action of the petitioners by the President of the Bhartiya Janata Party, State Unit alleged to have been condoned on 19/3/2008 by communication dtd.19/3/2008. It is submitted that even subsequently on 6/10/2008 further affidavits were filed by the petitioners in which also there was no reference to such a condonation on 19/3/2008. It is submitted that even the date on the alleged communication of condonation of the action on 19/3/2008 is handwritten. It is submitted that even subsequently on 6/10/2008 further affidavits were filed by the petitioners in which also there was no reference to such a condonation on 19/3/2008. It is submitted that even the date on the alleged communication of condonation of the action on 19/3/2008 is handwritten. It is submitted that as such there was no condonation of action of the petitioners within stipulated time as mentioned in sec.3(1)(b) of the Act. It is further submitted that even the respective petitioners were suspended for breach of the mandate and for the first time vide communication dtd.14/2/2009 it was communicated by the petitioners that their suspensions have been withdrawn. It is submitted that even in the application which was submitted by the petitioners before the designated authority in February, 2009, as such, there was no reference of condonation of action by the President of the Bhartiya Janata Party, State Unit, as alleged to have been condoned on 19/3/2008. 7. It is further submitted by Mr.Dave, learned advocate appearing on behalf of the respondent nos.2 and 3 that even the contention on behalf of the petitioners with respect to non-receipt of mandate by them and/or there was no mandate issued by the Bhartiya Janata Party, State Unit, it is submitted that the contentions and submissions on behalf of the petitioners on the aforesaid is self contradictory. It is submitted that on one hand, it is the case on behalf of the petitioners that the action of the petitioners of committing breach of mandate came to be condoned and their suspension as members of the Party came to be withdrawn, it presupposes that there was mandate received by the petitioners of which there was a breach committed by them, which is condoned. It is further submitted that as such it was the specific case on behalf of the petitioners in the reply dtd.15/6/2008 that as the respective petitioners resigned from the party on 3/3/2008 and they requested the Chief Officer of the Nagar Palika to allot them separate space for sitting as they have formed a separate group known as Progressive Group, and therefore, the mandate was not binding to them. It is submitted that in view of the above admitted facts of resigning from the party on 3/3/2008 and forming separate group itself renders disqualification under sec.3(1)(a) of the Act and therefore, it is submitted that the respondent No.1 has not committed any illegality in disqualifying the petitioners as members of the Chhota Udepur Nagar Palika under the provisions of the Act and the Rules. Therefore, it is requested to dismiss the present Special Civil Application. 8. Mr.Anjaria, learned advocate appearing on behalf of the newly added party - State Election Commission - respondent No.4 has submitted that so far as the State Election Commission is concern they are concerned with the prayer of the petitioners to stay the election of the members of the Chhota Udepur Nagar Palika which had fallen vacant on disqualifying the petitioners as members. It is submitted by him that as such the vacancies had fallen vacant on 25/5/2009 and considering sec.71 of the Gujarat Municipalities Act, the State Election Commission is required to hold election within a period of six months of occurring vacancies and therefore, the Notification came to be issued in the month of November, 2009 for election of the post of members which had fallen vacant and therefore, once election process has started, no stay be granted to stall the election more particularly when the Notification issued by the State Election Commission has not at all been challenged by the petitioners. 9. Mr.M.R. Mengdey, learned Assistant Government Pleader has submitted that as the so-called condonation of the action of the petitioners by the President of the Bhartiya Janata Party, State Unit was not produced at all earlier, at least before February, 2009 and the same was produced subsequently, and therefore, the authority has rightly not believed the so-called condonation of the action of the petitioners on 19/3/2008, as it was nothing but afterthought and backdated. It is further submitted that even otherwise, in view of the admitted facts that the petitioners resigned as Members of th Bhartiya Janata Party on 3/3/2008 and formed a separate group, the respective petitioners have even otherwise rendered disqualification under sec.3(1)(a) of the Act. 10. It is further submitted that even otherwise, in view of the admitted facts that the petitioners resigned as Members of th Bhartiya Janata Party on 3/3/2008 and formed a separate group, the respective petitioners have even otherwise rendered disqualification under sec.3(1)(a) of the Act. 10. Now, so far as the contention on behalf of the respondents that the respective petitioners are even otherwise disqualified under sec.3(1)(a) of the Act is concerned, Mr.Pahwa, learned advocate appearing on behalf of the petitioners has submitted that considering the fact that the application of the respondent Nos.2 and 3 to disqualify the petitioners was under sec.3(1)(b) of the Act and the petitioners were served with the notice by the respondent No.1 for the alleged breach of sec.3(1)(b) of the Act, and even the impugned order has been passed by the respondent No.1 - designated authority for breach of sec.3(1)(b) of the Act, no order can be passed to disqualify the petitioners under sec.3(1)(a) of the Act. Therefore, it is requested not to consider the above submissions of the respondents for alleged disqualification of the petitioners under sec.3(1)(a) of the Act. 11. Heard the learned advocates appearing on behalf of the respective parties at length. 12. The proceedings came to be initiated against the petitioners to disqualify them as Members of the Chhota Udepur Nagar Palika under the provisions of the Act, more particularly under sec.3(1)(b) of the Act alleging inter-alia that though they were elected as Members of the Chhota Udepur Nagar Palika on the symbol of Bhartiya Janata Party and though there was a mandate by the Bhartiya Janata Party to cast their votes in favour of one Narendrabhai Jayswal (as President) and one Mehulbhai Patel (as Vice President), the respective petitioners committed breach of the said mandate and did not cast their votes as per the mandate. 13. 13. Sec.3 of the Act provides disqualification on the ground of defection as under:- SECTION 3 : Disqualification on ground of defection (1) Subject to the provisions of sections 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. 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 councillor, or as the case may be, a member (2) 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 shall be disqualified for being a councillor or, as the case may be a member if he joins any political party after such election. (3) 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. (4) 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). As per Sec.3(1)(b) of the Act 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 that 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 15 days from the date of such voting or abstention. At present I will deal with sec.3(1)(b) of the Act. At present I will deal with sec.3(1)(b) of the Act. Therefore, if a Councilor or a Member votes or abstains from voting in any meeting of a corporation, panchayat or as the case may be, the municipality contrary to any direction popularly known as whip or mandate, issued by the political party to which he belongs or by any person or authority authorised by it without obtaining prior permission of such political party, person or authority, their shall be disqualification of such a member / councilor. However, there is an exception to that. If such voting or abstention which was contrary to the directions issued by the political party to which he belongs is condoned by such political party, person or authority within 15 days from the date of such voting or abstention, there shall not be any disqualification. Therefore, to attract the aforesaid exception and to get out of the disqualification rendered under sec.3(1)(b) of the Act, the condonation of voting or abstention of the Member / Councilor of such political party, person or authority must be within 15 days from the date of such voting or abstention. In other words, even if there is a condonation of such voting or abstention which was contrary to the directions / whip / mandate of the political party to which he belongs after a period of 15 days from the date of such voting or abstention, still there shall be a disqualification. 14. Now, in the backdrop of the above provisions, the facts of the case on hand are required to be considered. The whip / mandate was dtd.5/3/2008 by the political party to which the petitioners belong to and also by the President of the Bhartiya Janata Party, State Unit and the mandate was issued to cast vote in favour of one Narendrabhai Jayswal (as President) and one Mehulbhai Patel (as Vice President). Admittedly, the petitioners did not cast their votes in favour of a candidate for which mandate was issued by the Bhartiya Janata Party to which the petitioners belonged to. The respective petitioners came to be suspended from the party on 10/3/2008 on committing breach of mandate by the Bhartiya Janata Party and acting contrary to the mandate issued by the party. All the petitioners were served with the show cause notice by the Party. All the petitioners submitted their reply to the show cause notice on 17/3/2008. The respective petitioners came to be suspended from the party on 10/3/2008 on committing breach of mandate by the Bhartiya Janata Party and acting contrary to the mandate issued by the party. All the petitioners were served with the show cause notice by the Party. All the petitioners submitted their reply to the show cause notice on 17/3/2008. It is to be noted at this stage that as such and even according to the petitioners and so stated in the reply to the show cause notice in the proceedings before the respondent No.1 on 15/6/2008, the respective petitioners have already resigned as members of the Bhartiya Janata Party on 3/3/2008 which was communicated to the party on 4/3/2008 and they formed a separate group known as Progressive Group and they requested for separate sitting space. Thereafter, proceedings came to be initiated against the petitioners on the application submitted by the respondent Nos.2 and 3. The respective petitioners submitted their detailed reply on 15/6/2008 which is produced at Annexure-C to the petition (page No.79 to 85). In the said reply one one hand, the respective petitioners denied having received any mandate and/or authority by the State Unit to the President of the Bhartiya Janata Party, Vadodara Unit to issue such a mandate, and on the other hand, it was the specific case on behalf of the petitioners that even if such a mandate was there, the same was not binding to them, as they had already resigned as members of the Bhartiya Janata Party on 3/3/2008 and formed a separate group informing the Chief Officer of the Nagar Palika. Further affidavits were filed on 6/10/2008 with respect to authority of the President of the Bhartiya Janata Party, Vadodara Unit to issue such a mandate. Further affidavits were filed on 6/10/2008 with respect to authority of the President of the Bhartiya Janata Party, Vadodara Unit to issue such a mandate. That thereafter in the month of February, 2009 the respective petitioners submitted one application before the respondent No.1 along with one communication which is undated signed by the President of the Bhartiya Janata Party, Vadodara Unit addressed to the petitioners that their suspensions as members of the Bhartiya Janata Party have been withdrawn and they are pardoned and they are continued as members of the party and also along with the communication dtd.14/2/2009 addressed by the Secretary of the Bhartiya Janata Party, State Unit addressed to the respondent Nos.2 and 3 to withdraw the Application No.21 of 2008 and it was requested to dismiss the aforesaid application on the aforesaid ground. It is to be noted that till then i.e. February, 2009 it was never the case of the petitioners that their action which was in breach of the mandate was condoned by the President of the Bhartiya Janata Party, State Unit. Thereafter, during the course of the aforesaid proceedings before the respondent No.2, the petitioners for the first time came out with a case that their action/breach of mandate was condoned by the President of the Bhartiya Janata Party, State Unit, and produced the alleged communication dtd.19/3/2008 condoning the action of the petitioners by the President and the authority. Till the aforesaid dates and at least till February, 2009 it was never the case of the petitioners that their actions have been condoned by the party and/or the President of the Bhartiya Janata Party, State Unit on 19/3/2008. Considering the aforesaid facts and circumstances,the respondent No.1 authority did not believe the communication dtd.19/3/2008 and the story put forward by the petitioners with respect to condonation of their action by the President of the Bhartiya Janata Party, State Unit on 19/3/2008. It is to be noted that it was the specific case on behalf of the respondent Nos.2 and 3 that the said communication is either concocted one and/or it is backdated. Therefore, considering the facts and circumstances of the case the respondent No.1 has rightly held that as such there was no condonation by the President on 19/3/2008 as alleged. It is to be noted that it was the specific case on behalf of the respondent Nos.2 and 3 that the said communication is either concocted one and/or it is backdated. Therefore, considering the facts and circumstances of the case the respondent No.1 has rightly held that as such there was no condonation by the President on 19/3/2008 as alleged. Considering the aforesaid facts and circumstances of the case this Court is also of the opinion that the subsequent story of condonation of action of the petitioners by President of the Bhartiya Janata Party, State Unit was an afterthought and either it is concocted one or backdated. It is to be noted that in the so-called letter of condonation the date 19/3/2008 is handwritten, therefore, it creates doubt, more particularly, till February, 2009, it was never the case of the petitioners that their act has been condoned by the President of the Bhartiya Janata Party, State Unit on 19/3/2008. If such a condonation was there on 19/3/2008, in that case, the petitioners would have definitely stated so in their reply on 15/6/2008 or in the affidavits dtd.6/10/2008 or even in the application which was submitted in February, 2009. 15. Now, so far as the contention on behalf of the petitioners with respect to condonation, considering provisions of sec.3(1)(b) of the Act even the condonation of action of voting or abstention contrary to the whip / mandate by the political party and/or person authorised must be within 15 days from the date of such voting or abstention. Any condonation of action of voting or abstention contrary to the mandate of the party to which he belongs to after a period of 15 days of such voting or abstention will not come to the rescue of such Councilor or Member despite such a condonation. As stated above, the condonation must be within 15 days from the date of such voting or abstention, which is found to be contrary to the directions issued by the political party to which a Member / Councilor belongs to. In the present case, as stated above, as there was no such condonation within a period of 15 days of the voting which was contrary to the directions, the petitioners are liable to be disqualified under sec.3(1)(b) of the Act. 16. In the present case, as stated above, as there was no such condonation within a period of 15 days of the voting which was contrary to the directions, the petitioners are liable to be disqualified under sec.3(1)(b) of the Act. 16. The contention on behalf of the petitioners that there was no mandate at all by the Bhartiya Janata Party, State Unit and/or the same was not received by the petitioners and/or President of the Bhartiya Janata Party, Vadodara Unit was not having authority to issue such a mandate is concerned, at the outset, it is required to be noted that as such subsequently it is the specific case on behalf of the petitioners that their action which was contrary to the mandate came to be condoned and their suspension came to be withdrawn and therefore, the aforesaid contentions with respect to mandate is self-contradictory. If the petitioners' case is that their act is condoned, meaning thereby their action was in breach of mandate and the same was condoned. The question with respect to condonation of action will come only if it was found that the said act / action is found to be in breach of a mandate, otherwise, there is no question of any condonation. 17. Even the contention on behalf of the petitioners that subsequently their suspension came to be withdrawn and they continued to be the members of the Bhartiya Janata Party and a direction by the Secretary of the Bhartiya Janata Party, State Unit to the respondent nos.2 and 3 to withdraw the application is neither here nor there. Any subsequent development either of withdrawing the suspension and other step by the party would not help the petitioners. Moment all the ingredients / conditions of sec.3(1)(b) of the Act are satisfied and the condonation is not there within 15 days from the date of voting or abstention, there shall be automatic disqualification. Under the circumstances, the subsequent withdrawal of suspension by the Bhartiya Janata Party to which the petitioners belong to, will not help the petitioners. 18. In view of the aforesaid facts and circumstances, the decision of the Hon'ble Supreme Court in the case of Sadashiv H. Patil (supra) relied upon by the petitioners would not be of any assistance to the petitioners, more particularly in the facts and circumstances stated hereinabove. 19. 18. In view of the aforesaid facts and circumstances, the decision of the Hon'ble Supreme Court in the case of Sadashiv H. Patil (supra) relied upon by the petitioners would not be of any assistance to the petitioners, more particularly in the facts and circumstances stated hereinabove. 19. Now, so far as the reliance placed by the learned advocate appearing on behalf of the petitioners upon the order passed by the learned Single Judge in Special Civil Application No.283 of 2009, by which the learned Single Judge dismissed the petition confirming the order passed by the designated authority under the Act, whereby the application of the said petitioners was dismissed and the submission on behalf of the petitioners that before the learned Single Judge a contention was raised that the political party condoned the action beyond the period of 15 days, still the learned Single Judge dismissed the petition is concerned, on considering the decision of the learned Single Judge, more particularly para 6 of the said decision, on facts the learned Single Judge has held that the instruction was given to walk out from the voting and based on such instruction the Councilors walked out and under the circumstances, after the mandate, under the prior permission if the Councilor has walked out from the voting, the learned Single Judge has held that it would not attract disqualification. The learned single Judge in the aforesaid decision has not gone into further question as to whether any condonation after a period of 15 days would render a member / Councilor disqualified or not. 20. Now, so far as the submission of Mr.Pahwa, learned advocate appearing on behalf of the petitioners that other petitions in which vires of Rule 10 (a) are admitted and therefore, the present petition be admitted is concerned, as such in the present petition Rule 10(a) is not challenged. Apart from that, the decision is not based on interpretation of Rule 10(a) to the effect that as under rule 10(a) the duty is cast upon the Member / Councilor to know and/or ascertain before actual voting that whether is there any mandate issued by the party or not. In the present case, such a question does not arise at all. Therefore, on the aforesaid ground, the present petition is not required to be admitted. 21. In the present case, such a question does not arise at all. Therefore, on the aforesaid ground, the present petition is not required to be admitted. 21. Now, so far as the contention on behalf of the respondent Nos.2 and 3 that over and above the above facts even on admitted facts so pleaded by the very petitioners, the respective petitioners have incurred disqualifications under sec.3(1)(a) of the Act is concerned, Mr.Pahwa, learned advocate appearing on behalf of the petitioners has submitted that as the show cause notice has been issued for breach of sec.3(1)(b) of the Act and order has been passed under sec.3(1)(b) of the Act, the question of disqualification of the petitioners under sec.3(1)(a) is not required to be considered. However, in view of categorical statements of the petitioners before the respondent No.1 - designated authority while submitting reply dtd.15/6/2008 to the effect that the respective petitioners had already resigned as members of the Bhartiya Janata Party on 3/3/2008, which was communicated on 4/4/2008, and they formed a separate group known as Progressive Group and requested for separate sitting space, this Court called upon Mr.Pahwa, learned advocate appearing on behalf of the petitioners what the petitioners have to say, Mr.Pahwa, learned advocate appearing on behalf of the petitioners is not in a position to submit anything in view of the aforesaid admitted facts so pleaded in the reply dtd.15/6/2008, except submitting that the show cause notice was issued under sec.3(1)(b) of the Act and the impugned order has been passed in breach of sec.3(1)(b) of the Act, and therefore, the aforesaid is not required to be considered. The learned advocate appearing on behalf of the petitioners is not in a position to say anything on merits. As stated above, in the reply to the show cause notice in the aforesaid proceedings, the respective petitioners vide reply dtd.15/6/2008 have specifically pleaded and averred that the respective petitioners have resigned as members of the Bhartiya Janata Party on 3/3/2008 which was communicated on 4/4/2008 and they formed a separate group known as Progressive Group. The learned advocate appearing on behalf of the petitioners is not disputing the above facts. As per sec.3(1)(a) of the Act if a Councilor or Member belong to any party has voluntarily given up his membership of such political party, in that case, he shall be disqualified for being a Councilor or Member. The learned advocate appearing on behalf of the petitioners is not disputing the above facts. As per sec.3(1)(a) of the Act if a Councilor or Member belong to any party has voluntarily given up his membership of such political party, in that case, he shall be disqualified for being a Councilor or Member. Therefore, in view of the aforesaid admitted facts when the respective petitioners have voluntarily given up their membership of Bhartiya Janata Party on 3/3/2008 and formed a separate group, the respective petitioners have also incurred disqualification under sec.3(1)(a) of the Act. However, it is made clear that incurring disqualification under sec.3(1)(a) of the Act is an additional factor to dismiss the present Special Civil Application and in view of the aforesaid admitted facts, this Court has considered the same. As held hereinabove, as such the respective petitioners are liable to be disqualified under sec.3(1)(a) of the Act. 22. In view of the above and for the reasons stated above, there is no substance in the present Special Civil Application, which deserves to be dismissed and is accordingly dismissed. Notice is discharged. As the present Special Civil Application is dismissed confirming the order passed by the respondent No.1 disqualifying the petitioners as Members of the Chhota Udepur Nagar Palika, there is no question of granting any interim relief restraining the State Election Commission from holding election of the posts which had fallen vacant on disqualification of the petitioners.