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2020 DIGILAW 932 (GUJ)

Pravin Khengarbhai Rathod v. State Of Gujarat

2020-11-25

BELA M.TRIVEDI

body2020
JUDGMENT : 1. Considering the exigency in the matter and with the consent of learned advocates for the parties, the matter was heard finally. 2. Rule. Learned AGP Mr. Sahil Trivedi waives service of Rule on behalf of respondent No. 1 - State and learned advocate Mr. Kirtan Mistry waives on behalf of respondent No. 2. 3. The petitioners by way of present petition has challenged the impugned order dated 05.08.2019 passed by the respondent No. 1 in Dispute application No. 9 of 2018 (Annexure A), whereby the respondent No. 1 has dismissed the said Dispute Application filed by the petitioners under the provisions contained in the Gujarat Provisions For Disqualification of Members of Local Authorities for Defection Act, 1986 (hereinafter referred to as ‘the said Act’) and the Rules made thereunder. 4. The undisputed facts as emerging from the record are that the petitioners and the respondent No. 2 are the members of the Patan District Panchayat elected in the General Election, held in December, 2015. The result of the said election was declared on 07.12.2015. The petitioners and the respondent No. 2 had contested the said election under the symbol of Indian National Congress Party. It is also undisputed that the General elections of Gujarat Legislative Assembly were held in the year 2017, in which the respondent No. 2 had contested the said election for 16Radhanpur Legislative Assembly Seat as the candidate of Bhartiya Janta Party and lost the same. The petitioners, therefore, preferred an application being Dispute Application No. 9 of 2018 before the respondent No. 1 seeking disqualification of the respondent No. 2 under section 3(1)(a) of the said Act. The said application has been dismissed by the respondent No. 1 vide the impugned order, and hence, the present petition has been filed by the petitioners. 5. The learned advocate Mr. C.P. Champaneri for the petitioners placing heavy reliance on the unreported decision of this Court in the case of Mukeshbhai Mogjibhai Desai versus Designated Authority passed on 18.06.2018 in Special Civil Appliation No. 8477 of 2018 and also on the decision in the case of Dr. 5. The learned advocate Mr. C.P. Champaneri for the petitioners placing heavy reliance on the unreported decision of this Court in the case of Mukeshbhai Mogjibhai Desai versus Designated Authority passed on 18.06.2018 in Special Civil Appliation No. 8477 of 2018 and also on the decision in the case of Dr. Mahachandra Prasad Singh versus Chairman, Bihar Legislative Council and Others, and Shiva Nandan Prasad Singh versus Chairman, Bihar Legislative Council and Others, reported in (2004) 8 SCC 747 , vehemently submitted that the respondent No. 2 having contested the election of General Assembly under the banner of Bhartiya Janta Party, though he was elected as the member of the Patan District Panchayat under the banner of Indian National Congress Party, he had deemed to have voluntarily given up the membership of the Indian National Congress Party, and thereby, had incurred the disqualification as contemplated under section 3(1)(a) of the said Act. According to Mr. Champaneri, though the said decisions were placed before the respondent No. 1, the same have not been considered by the respondent No. 1 while passing the impugned order. 6. However, the learned advocate Mr. Mistry appearing for the respondent No. 2 submitted that the elections of Patan District Panchayat were likely to be held in November, 2020 on the completion of the five years tenure as contemplated under section 13 read with 81 of the Gujarat Panchayats Act, however, due to prevailing circumstances namely the wide spread of Pandemic COVID-19, the elections have not been held and the same have been postponed further for a period of three months, and therefore, the petition as such has become infructuous. 7. At the outset, it may be stated that the legal position as regards on the interpretation of the Section 3(1)(a) of the said Act has been considered by this Court in the case of Mukeshbhai Mogjibhai Desai versus Designated Authority (supra) in which it has been held under : “5. In the instant case, the facts are not much disputed. It is not disputed that the petitioner had contested the election of Kheralu Taluka Panchayat in the year 2015 as the member of Indian National Congress. It is also not disputed that he had contested the election of Legislative Assembly for the Kheralu Legislative seat, as an independent candidate. In the instant case, the facts are not much disputed. It is not disputed that the petitioner had contested the election of Kheralu Taluka Panchayat in the year 2015 as the member of Indian National Congress. It is also not disputed that he had contested the election of Legislative Assembly for the Kheralu Legislative seat, as an independent candidate. It is also not disputed that the petitioner was suspended by the Indian National Congress vide the order dated 06.12.2017. Under the circumstances, the respondent No. 1 pressing into service the provisions contained in Section 3(1)(a) of the said Act held that the petitioner had incurred disqualification under the said provision, he having voluntarily given up his membership of National Congress party. The relevant part of the said provision reads as under : “3. Disqualification on the ground of defection - (1) Subject to the provisions of section 4 and 5, a councillor or a member belonging to any political party shall be disqualified for being a councillor or a member (a) if he has voluntarily given up his membership of such political party; or ....xxxx....xxxx.” 6. As rightly submitted by the learned Government Pleader Ms. Shah, the issue whether the member of a political party could be said to have voluntarily given up his membership from such party if he contested election as an independent candidate, is no more res integra. The Supreme Court in the case of Dr. Mahachandra Prasad Singh versus Chairman, Bihar Legislative Council and Others(supra), while interpreting the provision contained in para 2(1)(a) of the Tenth Schedule of the Constitution of India, similar to the aforestated provisions, has held as under : “11. In the present case, the Chairman of the Legislative Council has held that the petitioner had been elected to the Legislative Council on the ticket of Indian National Congress but he contested the parliamentary election as an independent candidate. On these facts a conclusion has been drawn that he has given up his membership of Indian National Congress. This being a matter of record, the petitioner could not possibly dispute them, and that is why he has admitted these facts in the writ petition as well. In such a situation there can be no escape from the conclusion that the petitioner has incurred the disqualification under Paragraph 2(1)(a) of the Schedule and the decision of the Chairman is perfectly correct.” 7. In such a situation there can be no escape from the conclusion that the petitioner has incurred the disqualification under Paragraph 2(1)(a) of the Schedule and the decision of the Chairman is perfectly correct.” 7. In view of the above, there is no shadow of doubt that the petitioner having been elected as the member of Kheralu Taluka Panchayat under the banner of Indian National Congress, and thereafter having contested the election of Legislative Assembly as an independent candidate, it was required to be presumed that he had voluntarily given up the membership of the Indian National Congress, and thereby had incurred the disqualification under Section 3(1) (a) of the said Act.” 8. The facts of the said case are quite similar to the facts of the present case, and therefore, the present petition is squarely covered by the said judgment. In the instant case also, the respondent No. 2 having been elected as the member of the Patan District Panchayat under the banner of Indian National Congress Party, and thereafter having contested the election of the Legislative Assembly under the banner of Bhartiya Janta Party, there is no escape from raising the presumption that the respondent No. 2 had voluntarily given up the membership of the Indian National Congress Party, and thereby had incurred disqualification under section 3(1)(a) of the said Act. 9. The contention raised by the learned advocate Mr. Mistry for the respondent No. 2 that the petition has become infructuous, has also no force. As per section 81 of the Gujarat Panchayats Act, the term of the office of members of the District Panchayat is coextensive with the duration of Panchayat and as per section 13 of the said Panchayats Act, every Panchayat unless sooner dissolved under this Act continues for five years from the date appointed for its first meeting and no longer. In the instant case, the election of the Patan District Panchayat was declared on 07.12.2015, and therefore, its first meeting must have been held thereafter. Under the circumstances, the tenure of the Patan District Panchayat as well as its members still continues as on today, as five years from the date of its first meeting have not been over. 10. In the instant case, the election of the Patan District Panchayat was declared on 07.12.2015, and therefore, its first meeting must have been held thereafter. Under the circumstances, the tenure of the Patan District Panchayat as well as its members still continues as on today, as five years from the date of its first meeting have not been over. 10. In that view of the matter, the Court is of the opinion that the respondent No. 1 has committed gross error of law in misinterpreting the provisions contained in Section 3(1)(a) of the said Act and in ignoring the legal position settled by this Court as well as by the Supreme Court on the issue involved. The impugned order being perverse and illegal, deserves to be set aside and is hereby set aside. The respondent No. 2 is held to be disqualified as the member of the Patan District Panchayat under the provisions contained in Section 3(1)(a) of the said Act. 11. The petition is allowed accordingly. Rule is made absolute. 12. The request of learned advocate Mr. Mistry for the respondent No. 2 to stay the execution and implementation of this order is rejected for the reasons stated in the order. Petition allowed.