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2013 DIGILAW 58 (GUJ)

MUKUNDKUMAR TRIKAMBHAI CHAUHAN ILLIASKHAN ABDULKARIM PATHAN SAVITABEN GOPALBHAI MAKWANA v. CHIEF ELECTION COMMISSIONER COLLECTOR ELECTION OFFICER

2013-02-04

JAYANT PATEL, MOHINDER PAL

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JUDGMENT JAYANT PATEL, J. 1. Rule. Ms. Rupal Patel, learned counsel appears for respondents no. 1 and 3 and Mr. Rakesh Patel, learned AGP appears for respondent no.2 and waive service of Rule. 2. We have heard the matter for final disposal and the matter is finally heard with the consent of the learned counsel appearing for both the sides. 3. The short facts of the case appear to be that in February 2008, the petitioners came to be elected as Councillors of Balasinor Municipality (hereinafter referred to as the Municipality ) as members of Congress party. On 23.02.2010, the petitioners were disqualified under the Gujarat Provision for Disqualification of Members of Local Authorities for Defection Act, 1986 (hereinafter referred to as Anti Defection Act for the sake of convenience). On 27.04.2010, petitioners once again contested the by-election for the very municipality in capacity as the member of Bahujan Samaj Party and he was declared elected. On 23.01.2013, in the ensuing regular election of the municipality, he filed nomination from Ward Nos. 7 and 8. On 28.01.2013, the election officer-cum-prant officer rejected the nomination form of the petitioners on the ground that since they were disqualified under the Anti Defection Act, vide order dated 23.02.2010, their nomination forms were rejected. It is under these circumstances, the petitioners have approached to this Court by the present petition. 4. We have heard Mr. Sanchela, learned counsel appearing for the petitioners, Ms.Rupal Patel for respondents no. 1 and 3 and Mr. Rakesh Patel, learned AGP for respondents 2. 5. The only question to be considered in the present petition is whether a person disqualified under Anti Defection Act would be entitled to contest the next regular election as the Councillor of the municipality or not. 6. It was submitted on behalf of the petitioners that the petitioners were not disqualified under section 37 of the Gujarat Municipalities Act, 1963 (hereinafter referred to as the Act ) but were disqualified under Anti Defection Act and as per the provisions of section 11(4) of the Act, the petitioners had ceased to be the Councillors, but they would be entitled to contest the next election being voters of the particular ward. 7. 7. Whereas on behalf of the Election Commissioner, it was submitted that once a person is disqualified under the Anti Defection Act by virtue of section 11(4) read with section 8(2) read with section 41 of the Act, the petitioners would stand as disqualified to hold office as the Councillors and therefore, their nominations have been rightly rejected by the election officer. 8. In order to appreciate the contention, reference to certain provisions of the Act would be useful. Section 8 of the Act reads as under: 8(1) Every municipality, unless sooner dissolved shall continue for five years from the date appointed for its first meeting and no longer. 2. The term of the councillors shall be co-extensive with the duration of the municipality. 2. An election to constitute a municipality shall be completed before the expiry of its duration specified under sub-section (1) As per the provisions of section 8, the term of the municipality shall be for a period of five years from the date appointed for the first meeting and the term of the Councillor shall be co-extensive with the duration of the municipality. 9. Section 11(1)(a) as well as section 11(4) which are relevant for the purpose of this petition read as under: 11.(1) No person may be a concillor - (a) Who- i. has, whether before or after the commencement of this Act, been convicted by a court in India- (a) of an offence under the Untouchability (Offences) Act, 1955 or under the Bombay Prohibition Act, 1949; or (b) of any other offence and sentenced to imprisonment for not less than six months, unless a period of four years of such lesser period as the State Government may allow in any particular case, has elapsed since his conviction and where he was sentenced to imprisonment, since his release; or ii. has been removed from office under section 37 and four years have not elapsed from the date of such removal, unless he has, by an order which the State Government is hereby empowered to make, if it shall think fit, in this behalf, been relieved from the disqualification arising on account of such removal from office; 11.(4) A person who at any time during the term of his office is disqualified under the Gujarat Provision for Disqualification of Members of Local Authorities for Defection Act, 1986 for being a Councillor shall cease to hold office as such Councillor. The aforesaid shows that no person may be a Councillor who has incurred the aforesaid disqualification. The pertinent aspect is that as per section 11(1)(a)(ii), it has been provided that if the person is removed from office under section 37, and the period of four years have not elapsed from the date of such removal, unless there is any specific order passed by the State Government, he shall remain as disqualified to be Councillor. The emphasis is that there are two requirements; one is his removal under section 37 and the expiry of the period of four years from the date on which he is removed. If the said language is considered with section 11(4) of the Act, under section 11(4), a person if is disqualified under the Anti Defection Act, it has been provided that he shall cease to hold office as such Councillor. Literal meaning of the said provisions of the Act is that if a person is disqualified under Anti Defection Act, he shall cease to hold the office as such Councillor. Meaning thereby, the date on which he has been disqualified, he shall cease to hold the office as the Councillor. Such disqualification is automatic upon the order so passed by the competent authority under Anti Defection Act. 10. Meaning thereby, the date on which he has been disqualified, he shall cease to hold the office as the Councillor. Such disqualification is automatic upon the order so passed by the competent authority under Anti Defection Act. 10. Since there is reference in section 11(1)(ii) to section 37, in order to compare the language, section 37 is reproduced as under: “37 (1) The State Government may remove from office- (a) any councillor of a municipality on its own motion or on receipt of a recommendation of the municipality in that behalf supported by a majority of the total number of the then councillors of the municipality, or (b) any president or vice-president of a municipality, If, after giving the councillor, president or as the case may be vice-president an opportunity of being heard and giving due notice in that behalf to the municipality and after making such inquiry as it deems necessary, the State Government is of the opinion that the councillor, president or as the case may be, vice-president has been guilty of misconduct in the discharge of his duties or of any disgraceful conduct or has become incapable of performing his duties under this Act. (2) A president or vice-president removed under sub-section (1) shall not be eligible for re-election as a president or vice-president during the remainder of the term of the municipality.” The aforesaid shows that a person may be removed from office if he has misconducted in capacity as Councillor or President or Vice President of the Municipality. It has been provided that if a person is removed as President or Vice President, he shall not be eligible for re-election as a President or Vice President during the remainder of the term, but such disqualification is not provided for Councillor. That by virtue of section 11(1)(ii), unless the period of four years has expired, such person would not be entitled to hold the office as the Councillor and so will be for contesting the election. 11. Section 38 of the Act reads as under: “38. That by virtue of section 11(1)(ii), unless the period of four years has expired, such person would not be entitled to hold the office as the Councillor and so will be for contesting the election. 11. Section 38 of the Act reads as under: “38. (1) If any councillor during the term for which he has been elected or nominated- (a) becomes subject to any disqualification specified in section 11, or (b) acts as a councillor in any matter- (i) in which he has directly or indirectly, by himself or his partner, any such share or interest as is described in clause (i), (ii), (iii), (v) or (vii) of sub-section (3) of section 11, whatever may be value of such share or interest, or (ii)In which he is professionally interested on behalf of a principal or other person, or (c) is professionally interested or engaged in any case for or against the municipality, or d. departs beyond the limits of the State with the declared or known intention of absenting himself continuously for a period exceeding six months, he shall subject to the provisions of sub-section (2) be disabled from continuing to be a concillor and his office shall become vacant. 2. In every case, the authority competent to decide whether a vacancy has arisen shall be the Collector. The Collector may give his decision either on an application made to him by any person or on his own motion after giving the councillor a reasonable opportunity of being heard. 3. Until the Collector decides under sub-section (2) that the vacancy has arisen, the councillor shall not be disabled under sub-section (1) from continuing to be a councillor. 4. Any person aggrieved by the decision of the Collector may, within a period of fifteen days from date of such decision, appeal to the State Government and the orders passed by the State Government in such appeal shall be final. The aforesaid section provides that if a person during his term for which he has been elected or nominated becomes subject to any disqualification under section 11, he shall be disabled from continuing the office as Councillor and if he does not vacate the office, the Collector by virtue of the power under section 38(2) may decide the question and upon declaration so made of incurring disqualification and disabling him to continue as the Councillor, his office shall become vacant. 11. 11. Section 41 of the Act reads as under: “41. Any person disabled under section 38 from continuing as a councillor shall be eligible for re-election on his disability ceasing.” The aforesaid provision shows that any person disabled under section 38 from continuing as a Councillor shall be eligible for re-election on his disability ceasing. Meaning thereby, if the person has been disqualified as Councillor under section 38, he would be entitled for re-election upon cessation of his disability. 12. If the contention is examined in light of the above referred legal provision, it is clear that once a person is disqualified under Anti Defection Act, the provisions of section 11(4) would apply so far as the Act is concerned and as per the Act, upon such order passed by the competent authority under the Anti Defection Act, he shall cease to hold the office. Therefore, his term no more would continue as Councillor and it would put an end of his term as Councillor. Thereafter, by virtue of the provisions of section 41, he shall be eligible for re-election upon his disability ceasing. Thereafter, when he is to contest the next election, he is not contesting the election in capacity as the Councillor of the Municipality, but is contesting the election as voter simplicitor. There is no express provision made by the legislature for continuing with the disqualification under Anti Defection Act by virtue of provisions of section 11(4) like the person who has been removed from the office under section 37 for which there is a separate provision made not only for removal of office under section 37, but for a further period of four years. There is conscious omission by the legislature for future disqualification to contest the election under section 11(4) of the Act. Even under the Anti Defection Act, no provision is brought to our notice showing that after a person is disqualified under the Anti Defection Act, in future also he shall be disqualified to contest the election. So far as section 38 is concerned, it is mainly based on the effect and the interpretation of section 11 of the Act. 13. Even under the Anti Defection Act, no provision is brought to our notice showing that after a person is disqualified under the Anti Defection Act, in future also he shall be disqualified to contest the election. So far as section 38 is concerned, it is mainly based on the effect and the interpretation of section 11 of the Act. 13. If by virtue of section 11(4), a person is not disqualified for future period, the contention based on the interpretation that until the term of the municipality is over, he will not be entitled to contest the election even for the next term cannot be accepted. If the interpretation as sought to be canvassed on behalf of the respondents no.1 and 3 is accepted, the consequence would be that we will have to read the provision which has been expressly omitted or not inserted by the legislature and the another consequence would be that such person who has been declared disqualified under Anti Defection Act, would not be in a position to contest the election for all time to come. Even in case of a person who has been removed under section 37 by way of misconduct, the disqualification is not exceeding four years from the date of the removal. Whereas in case of a person who has been disqualified under Anti Defection Act, such disqualification cannot be for all time to come. In our view, the interpretation of the above referred provisions as sought to be canvassed on behalf of respondents no. 1 and 3 cannot be accepted and it runs counter to the express scheme of the Act and more particularly the above referred statutory provisions of the Municipalities Act read with the Anti Defection Act. 14. It is hardly required to be stated that the rights of any voter to contest the election though is statutory, but has to be preserved by maintaining of the spirit of the democratic principles. It is by now well settled that unless statute by express provision curtails such right, by interpretative process, the right of any electorate for contesting the election cannot be curtailed. 15. In view of the aforesaid observations and discussions, we find that the action for rejection of the nomination forms of the petitioners cannot sustain in the eye of law and hence, the same deserves to be quashed and set aside. 16. 15. In view of the aforesaid observations and discussions, we find that the action for rejection of the nomination forms of the petitioners cannot sustain in the eye of law and hence, the same deserves to be quashed and set aside. 16. Under the circumstances, the impugned decision for rejecting the nomination form of the petitioners at Annexure-A is quashed and set aside. Consequently, the nomination forms of the petitioners for contesting the election shall continue. No other infirmities in the nomination form of the petitioners are brought to our notice. Hence, the nomination form of the petitioners would continue as accepted. The petition is allowed to the aforesaid extent. Rule made absolute accordingly. 17. The order shall be communicated by the learned counsel through the officers who are present in the Court. Rule made absolute.