Judgment S.R. Brahmbhatt, J.—Heard learned advocate for the parties. 2. The Civil Application is taken out by the petitioners of S.C.A. No. 6207 of 2011 for seeking appropriate order, direction in view of the fact that the appropriate relief if not granted, then the entire petition i.e. main matter would become infructuous on account of peculiar developments of events after filing the main matter. The Court during the course of submission inquired of learned counsels as to whether could this be treated as hearing on the main matter itself looking to the fact that the order dated 23.03.2011 where under the present petitioners-applicants have been declared to be disqualified to be continued as member of Banaskantha District Panchayat, and there was an order of this Court passed on 15.06.2011 which read as under: “Notice for final disposal returnable on 27.06.2011. Learned AGP waives service for Respondent No. 1. Direct service is permitted for Respondent No. 2.” And when the notification for holding election to fill in the vacancies are said to have been arisen on account of the disqualification of these two petitioners is already issued, learned Counsel for the petitioner was ready and willing to have the final disposal of the matter but learned AGP expressed her inability to conduct the matter finally and submitted that only Civil Application may be heard and appropriate order be passed. 3. Facts in brief leading to filing the main matter is required to be adverted hereafter to understand the controversy involved in Special Civil Application and Civil Application. 4. The petitioners were elected as member of Banaskantha District Panchayat on the symbol of Indian National Congress, the political party. As per the list of the members of Banaskantha District Panchayat there exists 55 seats in the Banaskantha District Panchayat. Out of these 55 seats 20 seats are occupied by the member of the political party called Bhartiya Janta Party. 35 seats have been occupied by the members who have been elected on the symbol of Indian National Congress. The District Panchayat meeting was slated on 22.06.2009. An agenda was circulated on 05.06.2009 and in that agenda item from 1 to 10 deliberations were required to be held on approving and sanctioning the meetings and proceedings of the earlier meeting of Panchayat and for creation of different committees of Panchayat. This meeting was slated to be held on 22.06.2009 at 13.00 hours. 5. An agenda was circulated on 05.06.2009 and in that agenda item from 1 to 10 deliberations were required to be held on approving and sanctioning the meetings and proceedings of the earlier meeting of Panchayat and for creation of different committees of Panchayat. This meeting was slated to be held on 22.06.2009 at 13.00 hours. 5. On the very same day i.e. 22.06.2009, the President Jilla Congress Committee, Banaskantha, Palanpur, conveyed to the members of District Panchayat elected on the symbol of Indian National Congress that he was issuing mandate as per direction of Gujarat Pradesh Congress Samiti to all the members to remain present in the meeting and vote in favour of proposals of the President, failing which they would be proceeded against for having them declared as disqualified under the Defection Act. There was alleged disobedience by the petitioners of this mandate and hence one member of the District Panchayat namely Dalsanghbhai Jitabhai Patel moved petition under Sections 3 and 6 of the Defection Act called Gujarat Provisions For Disqualification of Members of Local Authority for Defection Act 1986 (herein after referred to as the ‘Defection Act” for the sake of brevity) but said petition being Petition No. 41 of 2009 was permitted to be withdrawn vide order dated 19.01.2010 by the designated officer. The private Respondent No. 2 after a period of about one and half year presented a petition under Rule 6 to the designated authority on 11.01.2011 for seeking declaration qua the two petitioners that they are disqualified on account of the breaches with the mandate issued by that party. It is most appropriate to mention here and note that this private Respondent No. 2 happens to be a member of District Panchayat elected on the symbol of Bhartiya Janta Party, meaning thereby the party i.e. Indian National Congress or its member did not have any other interest or proceedings qua so called breaches of mandate issued by the party. 6. The designated authority issued notice on 02.02.2011 to the District Panchayat and the present petitioners only. These notices were made returnable on 14.02.2011 and the notices were dispatched on 03.02.2011, as could be seen from the record which is available with the learned AGP. On 14.02.2011, no party requested for any adjournment but the matter was adjourned to 24.02.2011. 6. The designated authority issued notice on 02.02.2011 to the District Panchayat and the present petitioners only. These notices were made returnable on 14.02.2011 and the notices were dispatched on 03.02.2011, as could be seen from the record which is available with the learned AGP. On 14.02.2011, no party requested for any adjournment but the matter was adjourned to 24.02.2011. Thereafter on 24.02.2011 a request was made by the present petitioners’ advocate before the designated authority for time so as to place on record appropriate defense and time of three days was granted and the matter was fixed on 28.02.2011. On 28.02.2011 the matter was listed but it was not taken up, as the designated officer was not available and hence the matter was adjourned to 01.03.2011. On 01.03.2011 the petitioners through their representative sought time which was declined and the request was rejected, however, the reason for rejection have not been mentioned and the hearing was concluded. The matter thereafter remained with designated officer who passed order on 23.03.2011. Being aggrieved and dissatisfied with this order under which the present petitioners have been declared to be disqualified under the Defection Act the present petition was preferred on which as it is stated herein above this Court (Coram: D.H. Waghela, J.) on 15.06.2011 while issuing notice observed that the notice was issued for final disposal. Thereafter the petition was not heard and in the meantime the notification came on 14.03.2012 for holding election for the posts who have been treated as fallen vacant on account of disqualification of these two petitioners. Hence, the petitioners were constrained to file this Civil Application being C.A. No. 3200 of 2012. 7. Learned advocate for the petitioners contended that the order impugned is suffering from patent lacuna of non observance of principle of natural justice, as the designated authority without recording any reason or indicating any justification on his part for rejecting the request for adjournment rejected the request for adjournment, thereby deprived the present petitioners of their legitimate right to get opportunity of being heard and represent their case with support of appropriate documents. 8. 8. Learned advocate for the petitioners elaborating the aforesaid submission of breach of principle of natural justice submitted that there was absolutely no reason on the part of the designated authority in rejecting the application/request for adjournment made on 01.03.2011, as the order which refers to the factum of rejection is absolutely silent qua justification for rejecting the same, nor has the respondent bothered to file affidavit controverting the contentions raised in this petition. No affidavit in reply is filed even to Civil Application also. 9. In furtherance of the aforesaid submission, learned Counsel for the petitioners contended that the designated authority should have appreciated the fact that the incident of so called defense is said to have occurred on 22.06.2009 and the petition by Respondent No. 2 for the first time came to be presented on 11.01.2011. The time lag between the two also should have been appreciated by the designated authority so as to afford reasonable opportunity to the petitioners to meet with the contentions with regard to the so called breach of mandate occurred in the year 2009, which have been complained in the year 2011. Nothing prevented the respondents from even justifying the reason or rejection by way of filing affidavit but no affidavit is filed on the record till date. None is present so far as the Respondent No. 2 is concerned, as though served none appears on his behalf. 10. Learned advocate for the petitioners relying upon the provision of Section 3 of the Defection Act contended that the mandate is to be required to attract the provision of Defection Act in case of defiance. The language of Section 3(1)(b) envisages the eventuality of some member remaining absent or some member seeking some permission and therefore grants 15 days time for condoning so called breaches. In the instant case, the agenda of the meeting was circulated way back on 05.06.2009 and the meeting was slated to be held on 22.06.2009. But unfortunately the so called mandate is issued only on 22.06.2009 without condoning any time of issuance thereof or without indicating that whether it was backed by the political party, which is only party who can be said to be entitled to the mandate. But unfortunately the so called mandate is issued only on 22.06.2009 without condoning any time of issuance thereof or without indicating that whether it was backed by the political party, which is only party who can be said to be entitled to the mandate. These facts, unfortunately, not being adverted to at all by the designated authority and therefore, the order deserves to be quashed and set aside and the appropriate relief is required to be granted. 11. Learned advocate for the petitioners thereafter invited this Court’s attention to the provision of the Defection Rules called The Gujarat Provision For Disqualification of Members Of Local Authorities For Defection Rules, 1987 (hereinafter referred to as the ‘Defection Rules’ for the sake of brevity) contended that the provision of Rule 7 especially Rule 7(3) provides for notice to leader of the party, if the petition is not preferred by leader of the party and that leader of the party is to furnish his comments within 7 days of the receipt of notice or within such further period as the designated officer may for sufficient cause allow it. In the instant case admittedly no such notice is issued to the leader of the party and the petition is in fact preferably the member who belong to other party. Therefore in such a situation it was duty cast upon the designated authority to issue notice to the leader inviting his comments and in absence thereof the order passed is vitiated and it is therefore required to be quashed and set aside. 12. Learned Counsel for the petitioners submits that the decisions cited at the Bar on behalf of the respondent State qua Rule 7 being procedural is directory, rather is of no avail to the respondents in as much as the Court while observing with respect to Rule 7 were in fact observing qua the provision of Rule 7 (1) and (2), namely requirement of designated authority to consider as to whether the petition is filed in compliance with Rule 6 and dismissal thereof in case of petition not being in compliance there with. The decisions cited at the bar on behalf of the respondent State for justifying their stand that non-issuance of notice to the leader of the party, their mandate is said to be defied, do not contain any specific challenge or a situation or even deliberations and discussions on the purport of Sub-rule (3) of rule 7. Therefore it can well be said that the ratio so far as these judgments are concerned is qua so called infirmity in affirming the petition by verification etc. Sub-rule (3) cannot be said to be directory so as to save the order impugned if the same is breached by the designated authority. 13. Learned Counsel for the petitioners thereafter invited this Court’s attention to the decisions of the Apex Court in case of Dr. Mahachandra Prasad Singh vs. Chairman, Bihar Legislative Council and others, reported in AIR 2005 SC 69 , and contended that no doubt in that judgment also the Apex Court while dealing with the provision contained in Schedule-X of the Constitution and the Bihar Legislative Council Members (Disqualification on ground of defection) Rules (1994) had observed that the procedural rule which are directory in nature cannot be permitted to whittle down the constitutional mandate enshrined in Schedule-X of the Constitution. Learned Counsel for the petitioners invited this Court’s attention to Paragraph No. 12 of the judgment and submitted that Rule 6 is set out in that Paragraph by Apex Court and where the portion which is there but not required to be mentioned and set out has been left with doted lines and therefore when Rule 7 is set out, it is very clear that Rule 7 was set out in its entirety as Rule 7(1) should have been mentioned. Therefore when Apex Court was observing in respect of rules and efficacy or purport thereof which was not in respect of the provision which could be said to be similar to Sub-rule (3) of Rule 7 of the Defection Rules in Gujarat, therefore, this judgment and judgments pronounced based upon this ratio would render Rule 7 (3) also directory would be of no avail as there exists no discussion and or pronouncement so far as Rule 7(3) of the Gujarat Rules are concerned. 14. 14. Learned Counsel for the petitioners thereafter contended that the designated authority should have appreciated the fact that in the instant case there exists an order under which the original applicant namely Shri Dalsangbhai Jitabhai Patel was permitted to withdraw the petition said to have been filed under the proceedings. Therefore after a gap of 1 ½ years the opposite party member had filed the petition and therefore the purpose of subsequent petition and its efficacy was also required to be adverted to appropriately by the concerned authority which the designated authority has unfortunately omitted by merely brushing it aside by saying that there exists no decision on merits and therefore no principle of res judicata is applicable. This observation of the authority for brushing aside the entire controversy aside in unholy haste is also indicative of the fact that the patent lacuna in the order renders the order vitiated and therefore the decision is required to be quashed and set aside under Article 226 of the Constitution of India. 15. Learned AGP Ms. Asmita Patel submitted that the factum of issuance of mandate in unequivocal terms to all the panchayat members belonged to Congress party is evident from the record. The language of the mandate is also very clear and unequivocal so as to bring home to the members that in case defiance thereof would render them liable to be disqualified under the provision of Defection Act. This mandate is signed by the present petitioners also. Therefore it was a duty cast upon the petitioners to abide and obey the mandate issued by the political party i.e. Indian National Congress. The defiance has resulted into their disqualification. The designated authority has merely decided that these two petitioners have incurred disqualification and have therefore no right to be continued as members of Banaskantha District Panchayat. 16. Learned AGP thereafter contended that filing of earlier petition by a member, namely Shri Dalsang Jitabhai Patel and its disposal as having been withdrawn, cannot be said to be in any way debarring the subsequent petition preferred by Respondent No. 2 herein above even if he belonged to opposite party from seeking declaration that the two petitioners have incurred disqualification as envisaged under the provision of Defection Act. The withdrawal of earlier petition would in noway come as an impediment in way of designated authority in deciding the matter on merits. 17. The withdrawal of earlier petition would in noway come as an impediment in way of designated authority in deciding the matter on merits. 17. Learned AGP thereafter contended that Rule 8 of the Defection Rules provides for time limit for disposal of this kind of petition and as the time limit is prescribed the designated authority was well justified in rejecting the request for adjournment and the rejection on the request for adjournment cannot be treated as denial to a member nor can it be treated as lack of opportunity or violation of principle of natural justice. 18. Learned AGP further contended that at the provision of Defection Act as well as Rules do not provide or prescribe any time limit for moving the petition for seeking declaration in the event of breach of mandate by the member and therefore the petition on which impugned order is passed even if it is filed after a year & half, same cannot be said to be incompetent and or not maintainable on account of time having passed and, therefore, this submission of learned Counsel for the petitioners is also required to be rejected. 19. Learned AGP for respondent State has contended that Rule 7 is merely directory and non compliance therewith shall not result into vitiating the order impugned before this Court. Learned AGP invited this Court’s attention to the decision of Dr. Mahachandra Prasad Singh (Supra), and submitted that Supreme Court has in fact held that procedural aspect or rule of procedure are essentially directory and breach thereof cannot be permitted to aid unscrupulous member to go scot free. Therefore this decision is aptly applicable to facts & circumstances of the present case and the Court may not interfere with the order impugned. 20. Learned AGP thereafter invited this Court’s attention to the decision of this Court in case of Padhya Kaminiben Sanatkumar and Ors. vs. Manishkumar Sureshchandra Acharya & Ors., reported in 2009 (3) GLR 2737 , and submitted that while dealing with this very rule namely Defection Rules, this Court unequivocally observed that the rules are directory and therefore breach thereof would not vitiate the order so as to interfere therewith. 21. vs. Manishkumar Sureshchandra Acharya & Ors., reported in 2009 (3) GLR 2737 , and submitted that while dealing with this very rule namely Defection Rules, this Court unequivocally observed that the rules are directory and therefore breach thereof would not vitiate the order so as to interfere therewith. 21. Learned AGP thereafter submitted that this decision reported in 2009 (3) GLR 2737 (Supra) was carried in appeal being LPA No. 2137 of 2009 in SCA No. 2 of 2009 and other allied matters and Division Bench of this Court vide its judgment & order dated 3/12/2009 rejected the appeal. In other words rejection of the appeal could be said to be confirming the order passed by learned Single Judge and therefore, this Court may not interfere with the order impugned as the rules are forming part of the procedure, breach whereof cannot be said to be so mandatory as to nullify misconduct and or act of defection which is required to be viewed very seriously. 22. The mandate is clearly breached and that breach of mandate has not been condoned by political party within the prescribed time limit under the act and therefore, on this count also there exists strong case for rejection of the petition. 23. Learned AGP further submitted that Rules 6 & 6(2) of Defection Rules, specifically permits reference by way of petition to be made by either councilor or member as the case may be, and it does not restrict filing reference only by the political party or its member, whose mandate is said to be defied. Therefore, filing of this petition under which the order is made which is impugned in this petition by the member of opposite party i.e. BJP was absolutely competent and just and therefore it cannot be contended that the member of BJP i.e. opposite party could not have filed the reference. 24. The Court has heard learned advocates for the parties. Before adverting to rival contentions of learned advocates, it is most appropriate to set out few indisputable facts emerging therefrom. (a) The petitioners belong to Indian National Congress, the political party and they have been elected on the symbol of Indian National Congress (INC for short), to be member of Banaskantha District Panchayat. (b) The agenda dated 5/6/2009 was circulated by the proceedings to be conducted in the meeting slated to be held on 22/6/2009. (a) The petitioners belong to Indian National Congress, the political party and they have been elected on the symbol of Indian National Congress (INC for short), to be member of Banaskantha District Panchayat. (b) The agenda dated 5/6/2009 was circulated by the proceedings to be conducted in the meeting slated to be held on 22/6/2009. There was no mandate at all till 22/6/2009 issued by political party, namely INC. (c) The mandate which is sought be pressed into service is admittedly issued only on 22/6/209 and that mandate does not bear any timings of issuance nor does it disclose unequivocally that it was resolved by political party i.e. INC to issue said mandate on such subject. (d) The meeting was held on 22/6/2009 wherein it is alleged that the petitioners had cast their vote against the proposal made by the chair. It is admitted that this deliberation of agenda item in circular of 5/6/2009 were not in respect of any no confidence motion nor were they in respect of any pole matter on which the party had sought mandate from the people and on that basis they were occupying seat of power in Banaskantha District Panchayat. (e) This mandate do not spell out anything of this sort. It merely says that members have to remain present and cast vote in favour of proposal made by the chairman on the agenda item circulated on 5/6/23009. (f) It is undisputed that one member belong to INC namely Shri Dalsangbhai Jitabhai Patel had filed petition invoking Rule 6 of Defection Rules before the designated authority and that petition was permitted to be withdrawn, namely designated authority, prior to withdrawal and permitted dropping of the proceedings; meaning thereby proceedings were dropped by the designated authority. Now the order of filing of the proceedings or permitting proceedings is to be dropped is an order of designated authority which can be said to be an order passed by the authority in exercise of power confirmed upon him in provision of section 6 as well as rule 6 of the Act. That order has attained finality as no one has challenged the same. That order has attained finality as no one has challenged the same. Now, when that order has attained finality question arises as to whether was it permissible and open to the designated authority to brush that order aside and assume jurisdiction afresh upon the application of the member who moved that application only on 11/1/2011 for the so called defiance occurred on 22/6/2009. (g) It is nobody’s case that the order passed by designated authority is revisable or reviewable by that authority or by superior authority for that matter, meaning thereby, once the petition is filed and if there is an order on date by designated authority, then, that order becomes final and it could be set at naught only by the Court under Article 226 of the Constitution and by no other way of proceedings, as there exist no power of rule or revision of that order. (h) These facts have not been dealt with by the authority and it has rather addressed itself only on ground of principle of res judicata. The fact remains that the entire proceedings have been attempted to be complied with an urgency but no opportunity prima facie appears to have been granted or else those contentions could have been canvassed. (i) Assuming for the sake of examining, without holding that those contentions have not been canvased, then also, can it be said that designated authority is absolved of its duty to take note of the earlier order which has attained finality so as to debar him from entering upon the jurisdiction to examine the controversy afresh. (j) Admittedly, in the entire act there appears to be no power of review and therefore in my prima facie view the order which is passed in the earlier Petition, if it was not set aside by competent court, debar the designated authority from taking the petition afresh. As the Apex Court has said that the factum of defection is not subject matter of adversary litigation. Reference is permitted to be made by any member and thereafter duty is cast upon the officer concerned i.e. designated officer to adjudicate and come to his own conclusion in respect of whether the defection factum is there or not, and if those proceedings were permitted to be dropped then because of principle of awarding repeated consternation by repeated litigation, second reference were debarred. The earlier order was the order issued by the authority. If the authority was not satisfied in respect of withdrawal, it should have proceed with, as there is no further requirement of petition being maintained by the person who files the petition. (k) Rule 7(3) of the Rules reads as under: “7. Procedure:—On receipt of a petition under rule 6 of the Chief Secretary to the State Government or the designated officer shall consider whether the petition complies with the requirement of rule. (2) xxxxxxxxxxx (3) If the petition complies with the requirements of rule 6, the chief Secretary or, as the case may be, the designated officer shall cause copies of the petition and of the annexures thereto to be forwarded,— (a) to the councillor or member in relation to whom the petition has been made; and (b) where such councillor or member belongs to any municipal party or a panchayat party and or such petition has not been made by the leader thereof also to such leader, and such or councillor member or leader shall,m within seven days of the receipt of such copies, or within such further period as the designated officer may for sufficient cause allow, forward his comments in writing thereon the chief Secretary ;k;or the designated officer.” 24.1 This Court (Coram S.R. Brahmbhatt, J.) in SCA No. 3507 of 2012 passed an order on 19/3/2012 / 20/3/2012, wherein it is held that non compliance of Rule 7 (3) amounts to serious lacuna in the order and therefore the order becomes vulnerable. 25. Against this aforesaid factual backdrop, this Court is called upon to examine the controversy in question. The decision of the Apex Court heavily relied upon by learned AGP in case of Dr. Mahachandra Prasad Singh (Supra), will have no applicability to the facts of the present case, as it is required to be noted that case before the Apex Court was in respect of provision contained in Schedule-X of the Constitution and it was a question of ruling passed by Speaker of the House and it is under judicial review. Rule 6 and Rule 7 reproduced in Para – 12 leaves no room of doubt that what was under consideration of the Apex Court was defect of filing petition as it was required to be filed in compliance with Rule 6. Rule 6 and Rule 7 reproduced in Para – 12 leaves no room of doubt that what was under consideration of the Apex Court was defect of filing petition as it was required to be filed in compliance with Rule 6. Admittedly, the provision which is similar to provision of Rule 7(3) of Gujarat Defection Rules were not subject matter of consideration by the Apex Court and therefore in my humble opinion, this judgment and ratio there under would not govern the facts of the present case wherein a specific challenge is raised qua non compliance of Rule 7 (3) under which a duty is cast upon the designated officer to furnish a copy of the petition to the leader of the party in case the petitioner is now the leader of the party and corresponding duty is also cast upon the leader to supply his comments within seven days and if it is short, then it is to be extended on justifiable ground. When such a language is employed under the rule and when the rules were not subject of discussion as could be seen from the close perusal of the judgment of the Apex Court in case of Dr. Mahachandra Prasad Singh (Supra), it can well be said that this judgment so far as Rule 7 (3) is concerned has no applicability and therefore the decision of this Court in case of Padhya Kaminiben Sanatkumar and Ors. vs. Manishkumar Sureshchandra Acharya & Ors. (Supra) in which though the entire Rule 7 is set out, in my view would be of no avail to the respondents as even in that judgment also what was under consideration was admittedly not the purport of purview of Rule 7(3) of the Gujarat Defection Rules and therefore, in my view even that judgment will be of no avail as though this Court have said that Rules are directory without any challenge posed in the form of non compliance of Rule 7(3) there exist no occasion to deal with the purport and import of Rule 7 (3) of Defection Rules; and therefore facts and ratio of that case will have no applicability of the case of the present case on hand. 26. It is also required to be noted that Division Bench had considered judgment of learned Single Judge in case of Padhya Kaminiben Sanatkumar & Ors. vs. Manishkumar Sureshchanrda Acharya & Ors. (Supra). 26. It is also required to be noted that Division Bench had considered judgment of learned Single Judge in case of Padhya Kaminiben Sanatkumar & Ors. vs. Manishkumar Sureshchanrda Acharya & Ors. (Supra). In the entire judgment it has not decided the matter on the basis, as if even Rule 6 was directory, but decided on account of mandate and service of mandate and Rule 10 which provides presumption as to the respect of duty cast upon member to inquire about mandate. Therefore it was rightly submitted by learned advocate for the petitioners that in the Division Bench judgment there is no discussion with regard to whether the rule is directory or mandatory. 27. The Apex Court has in case of State of U.P. vs. Synthetics and Chemicals Ltd., reported in 1991 (4) SCC 139 has observed as under: “In Jaisri vs. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury’s Laws of England incorporating one of the exception when the decision of an appellate Court is not binding. Does this principle extend and apply to a conclusion of law, which neither raised nor preceded by any consideration. In other words can such conclusion be considered as declaration of law? Here again, the English Courts and Jurists have carved out an exception to the rule of precedents. It has been explained as rule of sub-silentio “A decision passes sub-silention, in technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to it mind (salmond on Jurisprudence 12th Edn. p. 153). In Lancaster Motor Company (London) Ltd. vs. Bremith Ltd., 1941 (1) KB 675 the Court did not feel bound by earlier decision as it was rendered ‘without any argument, without reference to the crucial words of the rule and without any citation of authority’. It was approved by the Court Municipal Corporation of Delhi vs. Guranam Kaur, 1989 (1) SCC 101 . The Bench held that ‘precedents sub-silentio and without arguments are of no moment’. The Courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents. It was approved by the Court Municipal Corporation of Delhi vs. Guranam Kaur, 1989 (1) SCC 101 . The Bench held that ‘precedents sub-silentio and without arguments are of no moment’. The Courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents. A decision which is not express and is not founded on reason nor it proceeds on consideration of issue cannot be deemed to be a law declared to have binding effect as is contemplated by Art. 141. Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidendi. In B. Shama Ral vs. Union, Territory of Pondicherry, AIR 1967 SC 1480 it was observed that ‘it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles laid down therein’. Any declaration or conclusion arrived without application of mind cannot be deemed to be declaration of law or authority of a general nature binding as precedent. Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law.” 28. The Apex Court has also held in case of Sundarjas Kanyalal Bhathija vs. Collector Thane, reported in 1989 (3) SCC 396 , and has observed as under: “21. Chief Justice Pathak in recent decision stressed the need for clear and consistent enunciation of legal principle in the decisions of a Court. Speaking for the Constitution Bench (Union of India vs. Raghubir Singh, 1998 (2) SCC 754) learned Chief Justice said : The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of law, besides providing assurance to the individual as to the consequence of transaction forming part of his daily affairs. And therefore, the need for a clear and consistent enunciation of legal principle in the decision of a Court. 22. Cardozo propounded a similar thought with more emphasis : I am not to mar the symmetry of the legal structure by the introduction of inconsistencies and irrelevances and artificial exceptions unless for some sufficient reasons, which will commonly be some consideration of history or custom or policy or justice. 22. Cardozo propounded a similar thought with more emphasis : I am not to mar the symmetry of the legal structure by the introduction of inconsistencies and irrelevances and artificial exceptions unless for some sufficient reasons, which will commonly be some consideration of history or custom or policy or justice. Lacking such a reason, I must be logical just as I must be impartial, upon like grounds. It will not do to decide the same question one way between one set of litigants and the opposite way between another. In our system of judicial review, which is part of our Constitutional scheme, we hold it to be the duty of Judges of superior Courts and Tribunals to make the laws more predictable. The question of law directly arising in the case should not be dealt with apologetic approaches. The law must be made more effective as a guide to behaviour. It must be determined with reasons which carry convictions within the Courts, profession and public. Otherwise, the lawyers would be a predicament and would not know how to advice their clients. Subordinate Courts would find themselves in an embarrassing position to choose between the conflicting opinions. The general public would be in dilemma to obey or not to obey such law and it ultimate falls into disrepute.” Thus, if there is no specific dealing of the said provision, namely Rule 7(3) of the Gujarat Rules, then, I am of the bumble view that, that judgment cannot be said to be laying down ratio so far as Rule 7 (3) is directory. On the contrary the language of the said rule indicates that it is mandatory. 29. This Court is of the considered view that the entire scheme of the Act is required to be borne-in-mind while examining the contention with regard to purport and importance of Rule 7 and other rules of Defection. The reference and reliance to the decisions rendered while examining the matter arising out of Schedule X would in my view be of not much avail as the language employed in Schedule X and language employed in Defection Act in Gujarat indicate that there exist scope for detailed examination of petition as the decision making power or power to declare defection is vested in the executive who is not part & parcel of the house in which the defection takes place. Whereas, so far as Schedule X is concerned there the duty is cast upon the Speaker of the House to give ruling and therefore Speaker of the House being person available or the person who is part & parcel of the entire proceedings of that house to decide, it is definitely not an act of an executive, thus a decision making authority. Under Schedule-X limits of Court’s judicial review of that decision is also required to be borne-in-mind while examining the matter arising under the Defection Act of the State qua local authorities like Panchayats and Municipalities. 30. Bearing aforesaid facts in mind, now let us examine provisions of Defection Act of Gujarat. This act is in form of Section 8. It is specifically provided that rules are to be framed by the State and this rule so framed under section 8 are to be tabled before the house and they are to be approved. Section 8 (2) (d) read as under. “8. Rules,—(1) xxxxxxxxx (2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all of any of the following matters, namely:— [a] xxxxxxx [b] xxxxxxxx [c] xxxxxxxx [d] the procedure for deciding any question referred to in Section 6 including the procedure of any inquiry which will be made for the purpose of any inquiry which will be made for the purpose of deciding such question;” It is provided in the act that how the petition or the question referred to under section 6 is to be decided by concerned authority. Thus it cannot be said that rules have prescribed larger scope than the act which was the case before the Apex Court in case of Dr. Mahachandra Prasad Singh (Supra), as there the Apex Court observed that the rule framed, namely Bihar Rule can have no effect of whittling or writing down constitutional provision in the form of Schedule X. Whereas in the instant case the Defection Act itself is the parent Act under which disqualification is prescribed for defying the mandate. This very act in which disqualification is prescribed and eventuality are also prescribed in form of Section 8 (2) (d) that how that question of defection and or disqualification is to be decided by procedure and therefore in light thereof the defection of rule are required to be examined. 31. This very act in which disqualification is prescribed and eventuality are also prescribed in form of Section 8 (2) (d) that how that question of defection and or disqualification is to be decided by procedure and therefore in light thereof the defection of rule are required to be examined. 31. Rule 3 provides for information to be furnished by leader of municipal party or panchayat and it is elaborately provided therein what information are to be given. This provision cannot be said to be an empty formality as in detail the leader of the house is also to be nominated to the designated authority, who in turn it is to be informed in writing as to who would communicate to the designated authority. Therefore in my view, those rules have to be understood to be rules having purpose of safeguarding the interest of elected members, least they are put to unnecessary harassment on account of absence thereof. 32. It is further required to be noted that in this very rules there is a provision called Rule 3(1) (b) & (c), which makes it incumbent upon the party concerned to provide copy of rules & regulations whether known as constitution of the party or any other name. These rules cannot be said to be an empty formality as in the eventuality when there is complaint with regard to defiance of mandate many questions with regard to the person whether was authorised to issue mandate, whether mandate was issued by political party or not would arise for adjudication and examination. Therefore it is also expected of the designated authority to advert to this aspect unequivocally in his order that he has satisfied with the mandate in question which was issued by the competent authority or by authorised person of the party. That the mandate was couched in terms and is unequivocally enough to bring home to the members that defiance thereof would entail disqualification proceedings and that their notice or information to members in advance to be given. All these facts and satisfaction thereof is required to be evidently mentioned in the order impugned and designated authority was required to deal with this question as a result whereof an elected member is to be unseated against the voters of their constituency who have elected him. The Apex Court therefore in case of Sadashiv H. Patil etc. All these facts and satisfaction thereof is required to be evidently mentioned in the order impugned and designated authority was required to deal with this question as a result whereof an elected member is to be unseated against the voters of their constituency who have elected him. The Apex Court therefore in case of Sadashiv H. Patil etc. Appellants vs. Vithal D. Teke and others etc. with Ashok Y.T. Patil and others vs. District Collector, Satara and others, reported in AIR 2000 Supreme Court 3044, in Para Nos. 13 & 14 have discussed as under. “13. A finding as to disqualification under the Act has the effect of unseating a person from an elected office held by him pursuant to his victory at the polls in accordance with democratic procedure of constituting a local authority. The consequences befall not only him as an individual but also the constituency represented by him which would cease to be represented on account of his having been disqualified. Looking at the penal consequences flowing from an elected Councillor being subjected to disqualification and its repercussion on the functioning of the local body as also the city or township governed by the local body the provisions have to be construed strictly. A rigorous compliance with the provisions of the Act and the Rules must be shown to have taken place while dealing with a reference under Section 7 of the Act. 14. In Civil Appeals Nos. 6266-6268/98 no rules or regulations of Janta Aghadi are shown to have been filed with the Collector. The record does not show that any such rules or regulations exist. Had they been there an effort could have been made to find out ‘authorisation to issue whip’ having been provided therein. During the course of hearing we asked the learned Counsel for the appellant to show any resolution of Janta Aghadi authorising the signatories of the whip to issue the whip. No such resolution was filed before the Collector or the High Court and not even shown to us. The contents of the whip do not also contain any recital spelling out the existence of any such authorisation which also goes to show that there was no such authorisation given. No such resolution was filed before the Collector or the High Court and not even shown to us. The contents of the whip do not also contain any recital spelling out the existence of any such authorisation which also goes to show that there was no such authorisation given. In the absence of proof of the signatories of the whip having been authorised by the Janta Aghadi to issue the whip the violation thereof would not attract the applicability of Section 3 (1) (b) of the Act. May be that the party, Aghadi or front had resolved to sponsor a particular person’s candidature at the election. Acting contrary to such resolution, howsoever strongly worded, may render its member liable to disciplinary proceedings at the party level. But to incur disqualification under the Act there must be a direction issued and such direction must be either by the party, Aghadi or front to which the Councillor proceeded against belongs or be by any person or authority authorised in this behalf. Mere resolution is not a substitute for direction. On this single ground alone the judgment of the High Court deserves to be maintained.” Bearing the aforesaid principle in mind and the rules, I am of the view that the observation of the Apex Court need to be borne-in-mind while dealing with the contentions with regard to the challenge to the impugned order. 33. The Apex Court has in case of Ravi S. Naik vs. Union of India and others, reported in AIR 1994 SC 1558 , held that the order even if passed by Speaker of the Assembly in breach of principle of natural justice, subject to judicial scrutiny and interference. Thus there cannot be any dispute that if principle of natural justice is not complied with said fact would vitiate the order impugned. Thus there cannot be any dispute that if principle of natural justice is not complied with said fact would vitiate the order impugned. In the instant case this Court is of the prima facie view that the peculiar facts of this case, wherein earlier order was passed by the authority itself where under the proceedings were dropped and when that order was not set at naught by any authority or competent Court after a lapse of 1 ½ years, another petition is preferred, then there was no reason for not affording adequate opportunity to the petitioners as the chronology of proceedings and the events go to show that, this Court is satisfied that there exists unholy haste on the part of concerned person/designated authority and he has not indicated as to for what reason request for adjournment was declined. 34. Learned Counsel for the petitioners at this stage submitted that even Sub-rule (7) of Rule 7, wherein it is categorically mentioned that principle of natural justice are to be followed not only by the designated authority but also by the officer who is entrusted with the inquiry as envisaged under Sub-rule (4) of Rule 7. Thus when duty is cast upon the designated authority to observe complete compliance of principle of natural justice the unduly haste evinced by the designated authority in grating only 3 days time and thereafter declining request for adjournment and not passing order for 20 days, and passing order thereafter would not in any manner indicate justification so as to refrain from interfering in the order. 35. The Apex Court has in fact held that entire provision of Schedule-X is to restrict unscrupulous members from indulging into shifting allegiance on count of extraneous consideration. Therefore all directions and whips are to be viewed from that angle only. Thus the issuance of direction/whip if it is not likely to change the power equation, same is required to be appreciated in its proper perspective. However the Court at this stage does not delve much upon this aspect at all as it would not be appropriate, but it is an admitted fact in the instant case that no confidence motion was under discussion and or no policy issue was under discussion which was subject matter of mandate by the party. 36. However the Court at this stage does not delve much upon this aspect at all as it would not be appropriate, but it is an admitted fact in the instant case that no confidence motion was under discussion and or no policy issue was under discussion which was subject matter of mandate by the party. 36. In view of this, the Court is of the considered view that lacuna are very fatal that there exist strong balance of convenience in favour of the petitioners. The Court is aware that any interim relief granted in nature of mandatory order would be allowing the petition at this stage. But in light of the observations of the Apex Court in case of Sadashiv H. Patil etc. Appellants V. Vithal D. Teke and others etc. (Supra), and in view of the fact that the State has not chosen to justify in any manner defending their order by filing affidavit in reply and original petitioner at whose behest the earlier petition was moved and has chosen not to present and when contentions of the present petitioners had remained uncontroverted, this Court is left with no choice but to grant complete stay against implementation and operation of the order impugned even if it is amounting to allowing this petition at this stage, as non-granting of such relief would amount to give life to the order which is just contrary to the principle of natural justice and it is against the provision of rule which are mandatory in my view. Hence this application is allowed. The implementation and operation of the impugned order is stayed, the result whereof would be permitting the petitioners/applicants herein to function as members of the District Panchayat, Banaskantha. 37. At this stage, learned AGP requests for staying this order for a period of one week. This request is strongly objected by learned Counsel for the petitioners on the ground that it would not be permissible for the State to take a stand, as it is under quasi judicial authority who cannot take a stand, and therefore no time be granted. This Court is of the considered view that when this Court has granted relief of this nature, it is appropriate to stay this order atleast for some time so as to enable the respondents to prefer appeal. This Court is of the considered view that when this Court has granted relief of this nature, it is appropriate to stay this order atleast for some time so as to enable the respondents to prefer appeal. At the same time when the Court has unequivocally opined that the elected representatives of the people in peculiar facts of the case have been actually non-functional for entire period of one year in the constituency of whom they were representing and have been left without any representative, it would be proper to give some time, hence it is stayed till 27/3/2012. Therefore, this order will take effect only from 28/3/2012.