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2023 DIGILAW 249 (GUJ)

DAXABEN MITESHKUMAR NATHANI v. STATE OF GUJARAT

2023-02-06

ARAVIND KUMAR, ASHUTOSH SHASTRI

body2023
JUDGMENT : ARAVIND KUMAR, J. 1. The order dated 29.3.2022 passed in Special Civil Application No. 1373 of 2021 is under challenge in this intra-court appeal. 2. We have heard the arguments of Mr. N.K. Majmudar, learned advocate appearing for the appellant, Mr. K.M. Antani, learned AGP for respondent No. 1 and Mr. C.B. Upadhyaya, learned advocate appearing for Mr. Kirtan H. Mistry for respondent No. 3. Respondent Nos.2 and 4 are served and unrepresented. 3. The issue in this appeal relates to the decision of the designated authority under the provisions of the Gujarat Provision for Disqualification of Members of Local Authorities for Defection Act, 1986 (hereinafter referred to as ‘Anti Defection Act’) rendered on 15.1.2021 by respondent No. 3 authority whereunder appellant herein (hereinafter referred to as ‘writ applicant’) has been disqualified as member of Devgadh Baria Municipality. 4. Facts in brief which has led to the filing of this appeal can be crystallised as under: BACKGROUND OF THE CASE: 5. During December 2017, election of Devgadh Baria Municipality was declared and came to be held on 19.2.2018 for filling up 24 posts of the councillors. Writ applicant participated in the said election by filing nomination and contested the election on the symbol of Indian National Congress (hereinafter referred to as ‘INC’) and was declared as elected as a member of the municipality from Ward No. 4. Accordingly, the gazette notification came to be issued on 19.2.2018. 6. The election for the post of President and Vice President of the said municipality was held on 6.6.2018 for the period upto 25.8.2020. A whip came to be issued to all the elected members of INC to vote in favour of the official candidate namely the writ applicant who had contested for the post. On account of said mandate/whip having been violated, the Gujarat Pradesh Congress Samiti suspended the writ applicant from the party (INC) for a period of 6 years on the ground that she had breached the mandate/whip issued by the party and had voted against instructions of the political party (INC) to which the writ applicants belonged to. 7. Respondent No. 3 herein filed an application to disqualify the writ applicant and other 6 members on the ground that they belonged to INC party and had not voted as per the instructions of the President of INC. 7. Respondent No. 3 herein filed an application to disqualify the writ applicant and other 6 members on the ground that they belonged to INC party and had not voted as per the instructions of the President of INC. Said application came to be rejected by the designated authority by order dated 20.6.2019. This order is said to have attained finality and no contra-material has been placed in this regard. 8. The Collector, Dahod issued a meeting notice fixing the agenda for election of candidates for the post of President and Vice President of Devgadh Baria Municipality for the second term namely on completion of first term in which the writ applicant had been elected as President by issuance of a meeting notice dated 18.8.2020. 9. In the meanwhile, it is stated that writ applicant herein had joined Bharatiya Janata Party (hereinafter referred to as ‘BJP’) by submitting an application Form No. 0053361 and was admitted to the said party according to the list of members announced by the President of City BJP, the name of writ applicant was entered. 10. In response to the meeting notice dated 18.8.2020, writ applicant filed her nomination to contest for the post of President of Devgadh Baria Municipality by filing her nomination as a candidate of INC party. A whip or mandate came to be issued by BJP on 25.8.2020 to its members including writ applicant to vote in favour of the official nominee of BJP. In the election held to the posts of President and Vice President for which the writ applicant had contested for the post of President against Smt. Charmiben Neel Soni resulted in both the candidates securing equal votes viz. 12 votes each. On account of tie between two candidates, the election officer viz. Chief Officer drew chits (lots) as per Rule 9 of the Gujarat Municipalities (President and Vice President) Election Rules, 1964 in view of both candidates agreed for the same. In this process, writ applicant was declared elected as President of the municipality. 11. 12 votes each. On account of tie between two candidates, the election officer viz. Chief Officer drew chits (lots) as per Rule 9 of the Gujarat Municipalities (President and Vice President) Election Rules, 1964 in view of both candidates agreed for the same. In this process, writ applicant was declared elected as President of the municipality. 11. An application came to be filed by respondent No. 3 against writ applicant for disqualifying her as member of the municipality under Section 3 of the Anti Defection Act contending, inter alia, that after having been elected from INC party had filed the nomination from the said party and her name was seconded by one of the members/councillors of BJP which was in contravention of law; and, in the year 2019, writ applicant had voluntarily given up the membership of the party of her party – INC and had joined BJP and as such she had earned the disqualification as prescribed under Section 3(1)(a) of the Anti Defection Act; also contending that writ applicant had sought supports from the councillors of other political party for the purpose of being elected as a President of the municipality and this would amount to horse trading which is against basic principles of the constitution and more particularly 10th Schedule. Hence, on this amongst other grounds, respondent No. 3 sought for writ applicant being declared as having earned disqualification under Section 3(1)(a) of the Anti Defection Act. On being notified, writ applicant appeared before the designated authority, filed her objection, denying the averments made, resulting in the following points being formulated: (i) Whether the order was passed by the authorised officer to the concerned party member? (ii) Whether in spite of service of whip upon the members, the members have voted against the whip (order) or abstain themselves from voting or voted against the instructions? (iii) Whether the opponents have voluntarily left their original State party? 12. (ii) Whether in spite of service of whip upon the members, the members have voted against the whip (order) or abstain themselves from voting or voted against the instructions? (iii) Whether the opponents have voluntarily left their original State party? 12. After detailed discussion, it came to be held that writ applicant despite being elected as member of Devgadh Baria Municipality on the symbol of INC had got herself nominated for the post of President in the election held on 25.8.2020 as candidate from INC and voted in favour of the candidate of BJP and thereby had breached the provisions of Section 3(1)(a) of the Anti Defection Act and after having voluntarily left her original party, she had violated the mandate of BJP to which party she had joined and her conduct proved that she voluntarily left her original party and as such she was declared to be disqualified as member of Devgadh Baria Municipality. Being aggrieved by the said order, writ applicant filed Special Civil Application No. 1373 of 2021. The learned Single Judge, after considering rival contentions, held that writ applicant was elected as councillor from Ward No. 4 of general women of Devgadh Baria Municipality under the symbol of INC in the election held on 25.8.2020 for the post of President and Vice President of said municipality, Mr. Shankarbhai Amaliyar, District President, BJP, Dahod had issued whip in the name of writ applicant as presidential candidate and yet in the said election held on 25.8.2020, the name of the writ applicant was proposed/recommended by Farooqbhai Musabhai Jethra of INC as evident from the candidature form and it was seconded by Mr. Dharmeshkumar Bharatbhai Kalal of BJP which was also evident from the candidature form. However, on the ground said mandate did not have the date and as such it was held to be a not valid whip. It also came to be held that in the minutes of meeting recorded on 25.8.2020, the undated whip or mandate had been read over which was issued in favour of the writ applicant and she had cast her vote in favour of BJP candidates and though she was elected in the symbol of INC, she had cast her vote in favour of BJP candidates on 25.8.2020. It was further held that writ applicant had given up voluntarily membership of the party on whose symbol she had contested and won the election and as such refused to interfere with the order of the designated authority. Hence, this appeal. 13. It is the contention of Mr. N.K. Majmudar, learned advocate appearing for the writ applicant that order passed by respondent No. 1 as affirmed by the learned Single Judge is erroneous as there are self-contradicting reasons given by respondent No. 1 and, therefore, order passed by respondent No. 1 ought to have been quashed and set aside by learned Single Judge. He would contend that election held on 25.8.2020 for the post of President of municipality was never based on any mandate of any of the political parties and it was never contacted on any whip/mandate given by any political party and, therefore, impugned order of the learned Single Judge is liable to be quashed. The so-called mandate given by a political party to writ applicant and relied upon by respondent No. 3 having not been accepted by the learned Single Judge by arriving at a conclusion that it was not proved, ought to have allowed the petition and set aside the order passed by respondent No. 1. He would also submit that non-consideration of this vital aspect has resulted in great injustice being caused to the writ applicant. He would contend that as per the details of the election held on 25.8.2020, the names of members and concerned candidates have been mentioned which would make it clear that members belonging to one of the political parties had cast vote in favour of the candidate of another political party and vice-versa and thus, election was never based on party politics and it was not on the basis of intervention of any political party and obviously, there was no mandate/whip which had played any role in respect of any election. Therefore, impugned order is liable to be quashed. For the reasons and grounds urged in the petition, he has sought for appeal being allowed. 14. Per contra, learned advocates appearing for respondent No. 3 and learned AGP would support the impugned order. 15. Therefore, impugned order is liable to be quashed. For the reasons and grounds urged in the petition, he has sought for appeal being allowed. 14. Per contra, learned advocates appearing for respondent No. 3 and learned AGP would support the impugned order. 15. Having heard the learned advocates appearing for the parties and on perusal of the case papers, undisputed facts which would emerge therefrom are: elections were held to Devgadh Baria Municipal on 19.2.2018 for electing 24 councillors and writ applicant came to be elected from Ward No. 4 as a councillor, undisputedly on symbol of INC. In the election held for the post of President and Vice President on 6.6.2018, writ applicant contested to the post of President and undisputedly INC issued a whip on 6.6.2018 to vote in favour of its official candidate and defying the said whip, writ applicant voted in favour of the candidates belonging to BJP. It is for this precious reason, a notice was issued to the writ applicant as to why he should not be disqualified or suspended from the Congress Party. The Gujarat Pradesh Congress Samiti by communication dated 7.7.2018 suspended the writ applicant from party for 6 years. The said period of suspension would operate till 6.7.2024. When this was the factual scenario, writ applicant is said to have joined BJP and to substantiate this claim before the learned Single Judge, it was stated in the affidavit-in-rejoinder filed in Dispute No. 15 of 2020 that writ applicant had joined BJP on 15.10.2019 and by filling up the membership Form No. 0053361, wherein her membership had been registered. This fact was reiterated in the affidavit-in-reply filed before the learned Single Judge by respondent No. 3. Though writ applicant filed rejoinder on 15.3.2021, she has not disputed the fact over her suspension by INC for a period of 6 years. Thus, it would emerge that writ applicant having been elected from INC had contested the election and after having joined BJP in the year 2019, after being elected as President of the municipality in the election held on 6.6.2018 and continued as President upto 25.8.2020. Without being re-admitted to INC, she could not have contested the election as the candidate from INC and that too, her candidature when seconded by the member of BJP and proposed by a member of INC. Without being re-admitted to INC, she could not have contested the election as the candidate from INC and that too, her candidature when seconded by the member of BJP and proposed by a member of INC. Hence, the authority has rightly arrived at a conclusion that writ applicant had earned disqualification as contemplated under Section 3(1) (a) of the Anti Defection Act as discussed in the impugned order in detail which has been affirmed by the learned Single Judge and rightly so which would not call for interference at the hands of this Court. 16. Hence, we proceed to pass following: JUDGMENT (i) Letters Patent Appeal No. 1132 of 2022 is hereby dismissed and order dated 29.3.2022 passed in Special Civil Application No. 1373 of 2021 stands affirmed. (ii) No order as to costs. (iii) Pending application stands consigned to records.