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2019 DIGILAW 1149 (GUJ)

Savitriben Juwansingh Chauhan v. State Of Gujarat

2019-12-13

VIPUL M.PANCHOLI

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ORDER : 1. Heard learned advocate Mr. M. Iqbal A. Shaikh for the petitioners and learned Assistant Government Pleader Mr. K. M. Antani for respondent No.1. Though served, none appears for respondent No.2. 2. Learned advocate for the petitioners submits that petitioners are elected members of Mahemdabad Taluka Panchayat. Election was held in December, 2015. The terms of President and Vice-President of the said Taluka Panchayat was over and therefore meeting was held on 13.06.2018 for conducting election of President and Vice-President. It is contended that no whip was issued by the Bhartiya Janta Party at the time of filing nomination form for the post of President and Vice-President. In the meeting which was held on 15.06.2018, petitioner No.1 – Savitriben Chauhan was elected as the President. In the said meeting, petitioner No.2 and other three members remained absent. Thereafter, meeting of the Taluka Panchayat was called on 16.07.2018 and in the said meeting, petitioner No.2 was elected as Chairman of Executive Committee of Taluka Panchayat. 3. It is further submitted that respondent no.2 filed Dispute Application No.42 of 2018 under the provisions of the Gujarat Provision for Disqualification of Members of Local Authorities for Defection Act, 1986 with a prayer that four opponents stated in the said application including the present petitioners be disqualified as they have not followed the whip issued by the authorized person of the concerned political party. It is submitted that the hearing of the said application was concluded on 11.02.2019. However, on the very same day, the President of Bhartiya Janta Party of Kheda District addressed a letter to respondent No.1 – Designated Officer, wherein, it has been specifically stated that the concerned political party has condoned the act of the petitioners and therefore now no action is to be taken against the petitioners and other two members. Learned advocate has referred the said communication, which is placed at page 124 of the compilation. Thereafter, learned advocate for the petitioners has referred the affidavit filed by respondent No.2, copy of which is placed on record at page 125 of the compilation, wherein it has been stated that he is withdrawing the application filed against the opponent Nos. 1 to 3. Said affidavit was filed on 04.04.2019. Thereafter, learned advocate for the petitioners has referred the affidavit filed by respondent No.2, copy of which is placed on record at page 125 of the compilation, wherein it has been stated that he is withdrawing the application filed against the opponent Nos. 1 to 3. Said affidavit was filed on 04.04.2019. Thus, it is submitted that petitioners were under the bona fide belief that now the alleged act of breach of whip issued by the political party by the present petitioners has been condoned by the said political party and the application has been withdrawn by the respondent No.2. However, surprisingly, without informing the petitioners, another affidavit has been filed by the respondent No.2 before the respondent No.1, wherein, he has stated that he is withdrawing the application qua original opponent nos. 3 and 4 only. Thus, the application filed by the respondent No.2 has been dismissed by the respondent No.1 qua original opponent Nos. 3 and 4 only. It is submitted that so far as present petitioners i.e. original opponent nos. 1 and 2 are concerned, without giving any opportunity of hearing to the petitioners after the letter dated 11.02.2019 as well as affidavit dated 04.04.2019, on the basis of further affidavit dated 17.06.2019, copy of which is placed on record at page 128 of the compilation, now the present petitioners are disqualified. Thus, learned advocate submits that issue involved in the present petition requires consideration. It is also pointed out at this stage that petitioners filed separate application being Civil Application No.1 of 2019 as after issuance of notice in the petition election programme is declared and therefore if the interim relief as prayed for is not granted in the present petition, petition filed by the petitioners would become infructuous. It is, therefore, urged that interim relief as prayed for be granted. 4. Learned advocate for the petitioners has relied on the judgment dated 04.02.2010 passed by this Court in the case of Ritaben Sanjaybhai Chauhan v. State of Gujarat rendered in Civil Application No.1134 of 2010 and allied matters. 5. On the other hand, learned Assistant Government Pleader has referred the order passed by the respondent No.1 and submitted that no error is committed by the respondent No.1 while passing the impugned order and therefore no relief can be granted in favour of the present petitioners. 6. 5. On the other hand, learned Assistant Government Pleader has referred the order passed by the respondent No.1 and submitted that no error is committed by the respondent No.1 while passing the impugned order and therefore no relief can be granted in favour of the present petitioners. 6. This Court has heard the learned advocates appearing for the parties for grant of interim relief. From the material placed on record, it has emerged that the hearing of the Dispute Application filed by the respondent No.2 was concluded on 11.02.2019. On the very same day, the District President of the concerned political party addressed a letter to respondent No.1, wherein he has specifically stated that the concerned political party has condoned the act of the petitioners of not following the whip given to the petitioners and therefore no further action is required to be taken against them. Even thereafter on 04.04.2019, respondent No.2 – original applicant filed an affidavit before the respondent No.1 and stated that he wants to withdraw the application qua opponent Nos. 1 to 3. Thus, as contended by learned advocate for the petitioners, petitioners were under the bona fide belief that the alleged act of not following the whip of the political party by the petitioners has been condoned by the said political party and therefore application would be disposed of as withdrawn. However, it is further revealed from the record that on 17.06.2019, another affidavit has been filed by respondent no.2 before respondent no.1, wherein, he has referred his earlier affidavit dated 04.04.2019 and thereafter stated that he wants to withdraw the dispute application qua original opponent nos. 3 and 4 only. At this stage, it is pertinent to note that respondent No.2 has changed his stand from time to time by filing different types of affidavit before the respondent No.1 authority and it is not in dispute that after the further affidavit dated 17.06.2019 is given by respondent No.2 to respondent No.1, no opportunity of hearing was given to the present petitioners and relying upon the last affidavit dated 17.06.2019, respondent No.1 has dismissed the application qua original opponent Nos. 3 and 4 only, whereas impugned order has been passed against the present petitioners. 7. At this stage, judgment dated 04.02.2010 passed by this Court in the case of Ritaben Sanjaybhai Chauhan (supra) is required to be kept in view. 3 and 4 only, whereas impugned order has been passed against the present petitioners. 7. At this stage, judgment dated 04.02.2010 passed by this Court in the case of Ritaben Sanjaybhai Chauhan (supra) is required to be kept in view. In the said decision, this Court has observed in para 14 and 15 as under: “14. It is not in dispute that the controversy in the main Special Civil Applications is with respect to the resignation alleged to have been tendered by the respective applicants as Councillors of Prantij Nagarpalika and Collector, Sabarkantha in exercise of power under Section 35(5) has held against the respective applicants-petitioners that the resignation tendered by the respective applicants-petitioners were voluntary and the same have been rightly accepted by the President of Prantij Nagarpalika. However, the same is subject matter of the main petitions and the said dispute is at large pending before this Court. By way of interim relief, this Court has not granted any relief suspending and/or staying the further execution and operation of the order passed by Collector, Sabarkantha as the same would tantamount to allowing the main Special Civil Applications at admission stage without final hearing. However, in the meantime, State Election Commission has now declared election programme and notification has already been issued for election of the posts of Councillors, which were held by the respective applicants and, therefore, respective applicants have preferred the present Civil Applications for appropriate interim relief restraining the respondent No.5 State Election Commission from holding the election by office of Councillors of Prantij Nagarpalika, which were occupied by respective applicants and which is the subject matter of main petitions. 15. Having heard learned advocates appearing on behalf of the respective parties, it appears that if the interim relief to the aforesaid limited extent is not granted during the pendency and final disposal of the main Special Civil Applications, and in case, the petitioners succeed in the main Special Civil Applications, not only it is likely to became the main Special Civil Applications infructuous but even it is also likely to lead to multiplicity of proceedings and third party right will be created by newly elected members. Therefore, so as to avoid any multiplicity of the proceedings and creating rights of third party and to see that main Special Civil Applications do not become infructuous, respondent No.5 is required to be restrained from further holding by-elections to the office of the members/Councillors of Prantij Nagarpalika, which were held and occupied by the applicants petitioners, which is subject matter of main Special Civil Applications. Identical question came to be considered by the Division Bench of this Court in Letters Patent Appeal No.2201 of 2009 with respect to holding byelection of members/Councillors of Prantij Nagarpalika and in similar set of circumstances, the Division Bench, by interim order dated 04/12/2009 passed in Civil Application No.11754 of 2009 in Letters Patent Appeal No.2201 of 2009, has been pleased to grant interim relief during the pendency of the main Letters Patent Appeal, restraining the State Election Commission from holding the by-elections to the office of members of Himmatnagar Municipality. Mr.Anjaria, learned advocate appearing on behalf of respondent No.5 is not in a position to dispute the same, as he himself as appeared before Division Bench on behalf of State Election Commission.” 8. In view of the aforesaid discussion, if the interim relief as sought for in this petition is not granted then it will not only make the main petition infructuous but it will lead to create multiplicity of proceedings and also third party right will be crated by newly elected members. Therefore, so as to avoid any multiplicity of the proceedings and creating rights of third party and to see that the petition does not become infructuous, the concerned authority is required to be restrained from further holding by-elections to the office of the President/Chairman of the Executive Committee of Mahemdabad Taluka Panchayat, which were held and occupied by the present petitioners, which is the subject matter of the main petition. 9. Thus, looking to the overall facts and circumstances of the present case, issue involves in the present petition requires consideration. Hence, Rule returnable on 27.02.2020. Let there be interim relief in terms of para 9(C) till the final disposal of this petition. Consequently, the concerned authority is hereby restrained from further holding by-elections to the office of the President/Chairman of the Executive Committee of Mahemdabad Taluka Panchayat, which were held and occupied by the present petitioners. 10. Hence, Rule returnable on 27.02.2020. Let there be interim relief in terms of para 9(C) till the final disposal of this petition. Consequently, the concerned authority is hereby restrained from further holding by-elections to the office of the President/Chairman of the Executive Committee of Mahemdabad Taluka Panchayat, which were held and occupied by the present petitioners. 10. In view of the order passed in the main petition, no further order is required to be passed in Civil Application No.1 of 2019. Accordingly, the civil application stands disposed of. Direct service today is permitted.