JUDGMENT Draft amendment allowed in both the petitions. Learned advocates appearing for respective petitioners to carry out the same. 2. RULE. Shri Pranav Dave, learned Assistant Government Pleader waive service of notice of Rule on behalf of respondent No.1 in Special Civil Application No.2533/2011 and Ms. Jirga Jhaveri, learned Assistant Government Pleader waive service of notice of Rule on behalf of respondent No.1 in Special Civil Application No.2534/2011 and Shri Vijay Patel, learned advocate waives service of notice of Rule on behalf of respondent No.3 in both the petitions. 3. As common question of facts and law arise in both these petitions, they are disposed of by this common judgment and order. 4. Special Civil Application No.2533/2011 has been preferred by the ex-Vice President of Bhesan Taluka Panchayat challenging the impugned order passed by the designated Officer and Settlement Commissioner and Director of Land Enforcement, State of Gujarat passed in Application No.53/2010, by which the petitioner has been disqualified as member of the Bhesan Taluka Panchayat under Section 3(1)(b) of the Gujarat Provisions of Disqualification of the Members of Local Authorities for Defection Act, 1986 (hereinafter to as “Act, 1986”) read with Rule 6 of the Gujarat Provisions of Disqualification of the Members of Local Authorities for Defection Rules, 1987 (hereinafter referred to as “Rules, 1987”). 4.1 Special Civil Application No.2534/2011 has been preferred by the then President of – member of Bhesan Taluka Panchayat challenging the aforesaid order by which she is also disqualified as member of the Bhesan Taluka Panchayat under Section 3(1)(b) of the Act, 1986 read with Rule 6 of the Rules, 1987. 5. Facts leading to filing of the present petition in nut-shell are as under: 5.1 Respective petitioners and respondent Nos.3 and 4 contested general election of the Bhesan Taluka Panchayat held in the year 2010 from Bharatiya Janata Party (BJP), a National Political Party. Respective petitioners and respondent Nos.3 and 4 were declared elected for their respective seats. Out of 15 seats of Bhesan Taluka Panchayat, the BJP secured 8 seats and Bharatiya Rashtriya Congress Party secured 6 seats and 1 was secured by independent candidate. That the election of the President and Vice President of Bhesan Taluka Panchayat was ordered to be scheduled on 11.11.2010 and the District Development Officer, Junagadh issued agenda under Section 63(4) of Gujarat Panchayat Act, 1993. That the election of the President and Vice President of Bhesan Taluka Panchayat was ordered to be scheduled on 11.11.2010 and the District Development Officer, Junagadh issued agenda under Section 63(4) of Gujarat Panchayat Act, 1993. It appears that meeting was convened by President of the BJP, Junagadh on 10.11.2010 wherein one Shri Jaisinh Nagji Bhati was unanimously elected as a member in the Bhesan Taluka Panchayat. It also appears that on the same day, the President issued whip/mandate in his capacity as President, District Unit of BJP, Junagadh by which it was directed that respondent No.3 shall be elected as President of Bhesan Taluka Panchayat and that respondent No.4 shall be so elected as Vice President of Bhesan Taluka Panchayat. That on 11.11.2010, first meeting of Bhesan Taluka Panchayat was convened at 13.00 hours, where all the elected candidates had remained present inclusive of the petitioners as well as respondent Nos.3 and 4. That it appears that respondent Nos.3 and 4 submitted forms for contesting the seat of President whereas the petitioners of Special Civil Application No.2533/2011 submitted his candidature for the post of Vice President. It appears that despite the whip/mandate in favour of respondent Nos.3 and 4, the petitioner of Special Civil Application No.2533/2011 contested the election for the post of Vice President. It appears that on the date of election, all 15 members remained present and when the election began, 7 persons belonging to BJP voted for respondent No.3 by raising their hands which was followed by 8 persons including respondent No.4 voting in favour the petitioner for selecting him as Vice President of Bhesan Taluka Panchayat. At the end of the election, petitioner of Special Civil Application No.2534/2011 was declared as President of Bhesan Taluka Panchayat and petitioner was declared uncontested Vice President of Bhesan Taluka Panchayat. At the end of the election, petitioner of Special Civil Application No.2534/2011 was declared as President of Bhesan Taluka Panchayat and petitioner was declared uncontested Vice President of Bhesan Taluka Panchayat. As the respective petitioners contested the election of President, Vice President of Bhesan Taluka Panchayat in breach of whip/mandate issued by President of the District Unit of BJP, Junagadh, respondent No.3 one Ghanshyambhai Patodia, President of the Taluka Unit of BJP, Bhesan addressed a letter dated 12.11.2010 to the President of District Unit, BJP, Junagadh drawing his attention towards breach of whip issued by BJP and President of Gujarat Pradesh Bharatiya Janta Party issued a show-cause notice dated 15.11.2010 calling upon the petitioners as to why the petitioners should not be suspended for having committed breach of the whip/direction issued by the political party. It appears that respective petitioners replied to the same. It appears that thereafter respondent No.3 – original applicant – Chandubhai Popatbhai Usdad, Member of the Bhesan Taluka Panchayat approached the authority under the Act, 1986 on 16.12.2010 to disqualify the petitioners under the provisions of the Act by submitting that the respective petitioners have acted contrary to the whip/mandate issued by the party and in breach of the whip and therefore, they have rendered disqualification under the provisions of the Act, 1986 as their act has not been condoned by the party and/or the person who has issued the whip. That thereafter after giving an opportunity to the respective parties, respondent No.1 designated authority under the Act has passed the impugned common order disqualifying the respective petitioners as member of the Bhesan Taluka Panchayat by holding that as they have committed breach of the mandate/whip issued by the party which was even read over before the meeting was commenced and their act has not been condoned by the party. Being aggrieved and dissatisfied with the impugned common order declaring respective petitioners as disqualified as member of Bhesan Taluka Panchayat, respective petitioners have preferred the present Special Civil Applications. 6. Shri N.D. Nanavaty, learned Senior Advocate appearing on behalf of the respective petitioners has challenged the impugned orders disqualifying the respective petitioners as member of the Bhesan Taluka Panchayat under the provisions of the Act, 1986 on the following grounds: 1. 6. Shri N.D. Nanavaty, learned Senior Advocate appearing on behalf of the respective petitioners has challenged the impugned orders disqualifying the respective petitioners as member of the Bhesan Taluka Panchayat under the provisions of the Act, 1986 on the following grounds: 1. That there is a non-compliance of Section 3(1)(b) of the Act, 1986 in as much as there was no whip served upon the respective petitioners and that mere reading and/or informing the respective petitioners/members with respect to whip/mandate and/or at the time of commencement of the meeting cannot be said to be a sufficient compliance of Section 3(1)(b) of the Act, 1986. 2. That there is a non-compliance of sub-Rule (6) of the Rule 3 of Rules, 1987 in as much as the leader of the party and/or the party has not communicated to the designated officer in Form No.II informing the designated officer whether the act of the petitioners have been condoned or not. 3. That the designated authority, who has, passed the impugned order is not authorized to act as designated officer to pass any order under the provisions of the Act, 1986. 6.1 Shri Nanavaty, learned Senior Advocate appearing on behalf of the petitioners has vehemently submitted that as per Section 3(1)(b) of the Act, 1986, a direction/whip/mandate issued by the political party to which a member belongs or by any person or authority authorized by it in this behalf is actually required to be served upon the concerned member and unless and until actually the direction/whip/mandate is served upon the concerned member and in absence of serving of such a whip/mandate, no proceedings can be initiated against such a member in case he has acted contrary to such a mandate/whip, under the provisions of the Act, 1986. It is submitted that in the present case, nothing is on record that infact any direction/whip/mandate issued by President of District Unit of BJP was served upon the petitioners. Therefore, it is submitted that order passed by the designated authority disqualifying the petitioners as member of the Bhesan Taluka Panchayat deserves to be quashed and set aside. It is submitted that in the present case, nothing is on record that infact any direction/whip/mandate issued by President of District Unit of BJP was served upon the petitioners. Therefore, it is submitted that order passed by the designated authority disqualifying the petitioners as member of the Bhesan Taluka Panchayat deserves to be quashed and set aside. 6.2 Shri Nanavaty, learned Senior Advocate appearing on behalf of the petitioners has further submitted that as such mere reading and/or informing the respective petitioners/members with respect to the whip/mandate at the time of meeting and/or at the commencement of the meeting cannot be said to be a sufficient compliance of Section 3(1)(b) of the Act, 1986. 6.3 Shri Nanavaty, learned Senior Advocate appearing on behalf of the petitioners has further submitted that even there is a non-compliance of sub-Rule (6) of Rule 3 of Rules, 1987 in as much as the person/leader of the party who has issued the whip/mandate has not submitted Form No.II informing the designated officer whether such voting or act of the petitioners has or has not been condoned by the political party, person or authority. It is submitted that such person who has issued the whip/mandate is required to inform the designated officer in Form No.II after the expiry of 15 days from the date of such voting or extension and in any case, within 30 days from the date of such voting or abstention. It is submitted that in the present case as the concerned person/leader who has issued the whip/mandate has not intimated the designated officer in Form No.II, whether the act of the petitioners have or have not been condoned, no proceedings can be initiated against the petitioners under the provisions of the aforesaid Act, 1986 and/or petitioners cannot be disqualified under the provisions of the Act, 1986. Therefore, it is submitted that the impugned order passed by the designated authority deserves to be quashed and set aside on the aforesaid ground of non-compliance of sub-Rule (6) of Rule 3 of Rules, 1987. 6.4 Lastly, Shri Nanavaty, learned Senior Advocate appearing on behalf of the petitioners has submitted by way of amendment that the designated officer who has passed the impugned order is as such not authorized to act as designated officer to pass any order under the provisions of the Act. 6.4 Lastly, Shri Nanavaty, learned Senior Advocate appearing on behalf of the petitioners has submitted by way of amendment that the designated officer who has passed the impugned order is as such not authorized to act as designated officer to pass any order under the provisions of the Act. It is submitted that under Section 6 of the Act, if any question arises as to whether (1) a councilor of a Municipal Corporation; (2) a member of Panchayat; or (3) a councilor of the Municipality, has become subject to disqualification under the Act, 1986, the same shall be referred to the Chief Secretary to the State Government or to State Officer not below the rank of a Secretary in department of the State Government as may be designated by the State Government in this behalf and his decision shall be final. It is submitted that as such respondent No.1 is neither the Chief Secretary to the State Government nor an officer below the rank of a Secretary of any department of the State Government and therefore, the impugned order passed by the respondent No.1 is without any jurisdiction. 6.5 Making above submissions, it is requested to admit/allow the present petitions. 7.0 Both petitions are opposed by Shri Pranav Dave, learned Assistant Government Pleader appearing on behalf of respondent No.1 of Special Civil Application No.2533/2011 and Ms. Jirga Jhaveri, learned Assistant Government Pleader appearing on behalf of respondent No.1 of Special Civil Application No.2534/2011 and Shri Vijay Patel, learned advocate appearing for H.L. Patel Advocates for respondent No.3 – original applicant. It is submitted by learned advocates appearing on behalf of the respondents that the impugned order passed by the designated authority is absolutely just and proper and in accordance with law and the same do not require to be interfered by this Court. It is submitted that having found that respective petitioners have incurred disqualification under the Act, 1986 for acting contrary to the whip/mandate issued by the leader of the party they belong to and thereafter, when the order is passed, the same is just and proper. It is submitted that as such the whip/mandate issued by the party was read over and brought to the notice of the respective members inclusive of the petitioners at the time of commencement of the meeting and the same is also reflected in the minutes of meeting. It is submitted that as such the whip/mandate issued by the party was read over and brought to the notice of the respective members inclusive of the petitioners at the time of commencement of the meeting and the same is also reflected in the minutes of meeting. Therefore, it is submitted that respective petitioners were already having sufficient knowledge/information with respect to the mandate/whip issued by the party and still respective petitioners acted contrary to such whip/mandate. Therefore, it is submitted that there was sufficient compliance of Section 3(1)(b) of the Act, 1986. 7.1 Learned advocates appearing on behalf of the respective respondents have further submitted that even the contention on behalf of the petitioners that there is a breach of sub-Rule (6) of Rule 3 also cannot be accepted. It is submitted that the submission made on behalf of the petitioners is on misinterpretation and misreading of sub-Rule (6) of Rule 3 of Rules, 1987. It is submitted that infact it is not the responsibility of the concerned person/authority who has issued the whip, to inform the designated officer in Form No.II as alleged. It is submitted that infact it is for the concerned member who is alleged to have acted contrary to the whip/mandate, to inform the designated officer in Form No.II that his act has been condoned or not. 7.2 Now, so far as contention on behalf of the petitioners that respondent No.1 has no jurisdiction and/or authority to pass the order under the Act, 1986 is concerned, it is submitted that it is nothing but an after thought. It is submitted that even such an objection/contention was not be raised before the designated authority. It is submitted that in any case, the same was not even raised at the time when the present petitions were filed and it is sought to be contended only by way of amendment. It is further submitted that even the notification under which the respondent No.1 is appointed as a designated officer, the same is not under challenge and it is not challenged at all. Therefore, it is submitted that on the aforesaid ground the impugned order passed by the designated officer under the Act cannot be quashed and set aside. 7.3 By making above submissions, it is requested to dismiss the present petitions. 8. Heard the learned advocates appearing on behalf of the respective parties at length. Therefore, it is submitted that on the aforesaid ground the impugned order passed by the designated officer under the Act cannot be quashed and set aside. 7.3 By making above submissions, it is requested to dismiss the present petitions. 8. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that the designated officer under the Act has specifically held and found that the respective petitioners have acted contrary to the whip/mandate issued by the leader of the political party they belong to and despite the whip in favour of respondent No.3, respective petitioners contested the election of President, Vice President and they acted contrary to the whip/mandate. The whip/mandate issued by the concerned person/party was infact read over at the commencement of the meeting dated 10.11.2010, in which the respective petitioners were also present and at the commencement of the meeting and even before the respective petitioners and even before the concerned members submitted their forms, such a mandate/whip was read over and the same is also reflected in minutes of the meeting. The aforesaid is not denied by the petitioners. Therefore, before even the petitioners submitted the forms/contested the election for the post of President, Vice President of the Bhesan Taluka Panchayat, they were made aware and known about the whip/mandate issued by the concerned person/party. The only contention on behalf of the petitioners is that the same was not earlier served upon the respective petitioners and therefore, there is no sufficient compliance of Section 3(1)(b) of the Act, 1986. The aforesaid cannot be accepted. As per Section 3(1)(b) of the Act, 1986, a Councilor or Member belonging to political party shall be disqualified for being Councilor or a Member, if he votes or abstains from voting in any meeting of Municipal Corporation, Panchayat or as the case may be, Municipality Borough, 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, without obtaining, in either case, the prior permission of such political party, person or authority and such voting and abstention has not been condoned by political party, person or authority within 15 days from the date of such voting or abstention. On fair reading of Section 3(1)(b) as such it does not provide that how and in what manner the direction issued by the political party to which he belongs or by any person or authority authorized in this behalf is to be served upon the concerned member. Section 3(1)(b) of the Act, 1986 provides that if a member votes or abstains from voting in any meeting of the Corporation, Panchayat or as the case may be, contrary to the direction issued, such a member incurs disqualification. Therefore, what is required to be proved by the aggrieved party is that such member had a knowledge of the direction/whip/mandate and that still he has voted and/or abstained from voting contrary to such a direction/whip/mandate. Therefore, what is required is the knowledge of the concerned member with respect to whip/mandate issued by the political party to which he belongs or by any person or authority authorized by it in that behalf. The moment it is proved that prior to the meeting it was brought to the notice of the concerned member and/or it was within the knowledge of the concerned member with respect to the whip/mandate issued by the political party to which he belongs or by any person or authority authorized by it and thereafter he has acted contrary to such a whip/mandate in that case, he incurs disqualification under section 3(1)(b) of the Act, 1986. In the present case, admittedly, at the commencement of the meeting and before even the forms/candidature for the post of President, Vice President of Bhesan Taluka Panchayat were submitted, the whip was read over to the concerned member inclusive of the petitioners and therefore, the respective petitioners were aware and in knowledge of the whip issued by the concerned person and still they contested the elections of President/Vice President contrary to the whip/mandate. Therefore, the contention on behalf of the petitioners that there is breach of Section 3(1)(b) of the Act, 1986 and therefore, the impugned order passed by the designated officer disqualifying the petitioners as members of the Bhesan Taluka Panchayat under Section 3(1)(b) of the Act, 1986 is illegal, has no substance and cannot be accepted. Therefore, the contention on behalf of the petitioners that there is breach of Section 3(1)(b) of the Act, 1986 and therefore, the impugned order passed by the designated officer disqualifying the petitioners as members of the Bhesan Taluka Panchayat under Section 3(1)(b) of the Act, 1986 is illegal, has no substance and cannot be accepted. 8.1 Now, so far as the contention on behalf of the petitioners with respect to breach of sub-Rule (6) of Rule 3 is concerned, the same is on misreading and misinterpretation of sub-Rule (6) of Rule 3 of Rules, 1987. It is the contention on behalf of the petitioners that as the concerned person/authority who issued the whip did not inform the designated officer in Form No.II after 15 days but within 30 days, whether the act of the petitioners had been condoned or not and therefore, there is non-compliance of sub-Rule (6) of Rule 3 of Rules, 1987 and therefore, the impugned order requires to be quashed and set aside, has no substance at all. On fair reading of sub-Rule (6) of Rule 3, a duty is cast upon such a member, who is alleged to have acted contrary to the whip/mandate issued by the political party he belongs to or by such person or authority authorized by it, to inform the designated officer in Form No.II within the stipulated time therein, whether his act is condoned or not. It is for the concerned member, who is alleged to have acted contrary to the whip, to inform the designated officer in Form No.II and not the person/authority who has issued the whip as contended, as it is that member who will be submitting before the designated officer that he has not rendered any disqualification, as his act has been condoned. Under the circumstances, the contention on behalf of the petitioners that there is breach of sub-Rule (6) of Rule 3 of Rules, 1987 and the impugned order deserves to be quashed and set aside, cannot be accepted. Under the circumstances, the contention on behalf of the petitioners that there is breach of sub-Rule (6) of Rule 3 of Rules, 1987 and the impugned order deserves to be quashed and set aside, cannot be accepted. 8.2 Now, so far as the last contention on behalf of the petitioners that respondent No.1 has no jurisdiction and/or authority to pass the order under the provisions of the Act, 1986, as he cannot be said to be designated officer under Section 6 of the Act is concerned, it is to be noted that first of all such a contention/objection was never raised by the petitioners before the designated officer – respondent No.1 herein, otherwise, the same would have been dealt with by respondent No.1. Even otherwise, even when the petitions were filed, such a contention/objection was not raised and it is raised by way of amendment only. It is to be noted that respondent No.1 is as such appointed as a designated officer/designated authority under the Act under the notification issued by the State Government and neither the appointment of respondent No.1 is challenged nor such a notification is challenged. Under the circumstances, on the aforesaid ground, the impugned order cannot be quashed and set aside. 9. In view of the above and for the reasons stated above, both the petitions fail and deserve to be dismissed and are, accordingly, dismissed. Rule is discharged in each of the petitions.