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Judgment
M.R. Shah, J.
1 By way of this petition under Article 226 of the Constitution of India, the Petitioners have prayed for an appropriate writ, direction and / or order quashing and setting aside the impugned order passed by the Designated Officer under the provisions for Disqualification of Members of the Local Authorities of Defection Act 1986 and Rules, 1987 (hereinafter referred to as the "Act & Rules") dated 24.3.2011 passed in Appeal No. 52 of 2010, by which the Designated Officer has passed an order to disqualify the Petitioners u/s 6 of the Act r/w Rule 3(1)(B) and Rule 6 of the Rules, 1987 disqualifying the Petitioners as member of Fatepura Taluka Panchayat.
2 The facts leading to the present Special Civil Application in nutshell are as under:
3 All the Petitioners were members of Fatepura Taluka Panchayat. That Fatepura Taluka Panchayat consists of 23 members, out of which 14 members were elected on the symbol of BJP and 8 members have been elected on the symbol of Indian National Congress and one member is from independent party. That all the 13 Petitioners were elected as members of the Fatepura Taluka Panchayat on the symbol of BJP. That general election of Fatepura Taluka Panchayat was held in October 2010, in which the Petitioners were elected as member of the Taluka Panchayat. That first meeting of the newly elected members of the Fatepura Taluka Panchayat was convened on 9.11.2010. It is the case of the Petitioners that the respective Petitioners 13 in numbers who belong to BJP were not aware of any whip having been issued by the party and no whip / mandate issued by party was served upon the Petitioners and in fact the respective Petitioners were inquired from their local leaders about any whip, however there was no whip received by anybody. Therefore, the respective Petitioners 13 in numbers decided themselves to setup 2 candidates from amongst themselves for the post of President / Vice President and unanimously, all the 11 members decided to setup the Petitioner No. 13 for the post of President and Petitioner No. 12 for the post of Vice President . The meeting dated 9.11.2010 was presided over by the Deputy Collector wherein Petitioner No. 13 was elected as President whereas Petitioner No. 12 was elected as Vice President of the Fatepura Taluka Panchaya. That thereafter, Respondent No. 2 preferred an application before the Respondent No. 1 Designated Officer alleging inter alia that the Petitioners have acted contrary to the whip/mandate issued by the party dated 7.11.2010 by which it was directed that one Chunilal Punjabhai Charport would contest the election for the post of President and one Taviyad Mineshbhai Parsingbhai would contest the election for the post of Vice President and despite the Petitioner Nos. 12 and 13 contested the election for the post of President and Vice President, this action is contrary to the whip/ mandate issued by the party and respective other Petitioners casted their votes in favor of the Petitioners No. 12 and 13, which is quite contrary to the whip /mandate issued by the party dated 7.11.2010 and therefore, it was requested to disqualify the Petitioners as members of the Taluka Panchayat, Fatepura. The said application was opposed by the Petitioners by submitting that as such, no such whip/mandate was ever served upon the Petitioners and therefore, they have not acted contrary to any whip / mandate and therefore, they have not rendered any disqualification under the Act. The respective Petitioners also produced the affidavit of one Shri Chhaganbhai Matabhai Pargi who was entrusted the work of serving the mandate upon the Petitioners as well as the affidavit of Shri Maheshbhai Bhuriya, District President of BJP, Dahod by which they have specifically stated in the said affidavit that whip/ mandate could not be served upon the Petitioners. It was also the case of Petitioners that even said Shri Chhaganbhai Matabhai Pargi was also served with the show cause notice by the District President, BJP Dahod and his explanation was sought for why the mandate / whip was not served upon the Petitioners at all, therefore, there was no question of rendering disqualification by the Petitioners. It was also specific case of the Petitioners that even at 10.00 clock on 9.11.2010 they inquired with respect to any whip and no such information/whip/mandate was brought to the notice of the Petitioners. It was further the case of the Petitioner that even the copy of such whip/mandate was not given to the Presiding Officer and even the same was not read over at the time of meeting and therefore, it was requested to withdraw the notice. Despite the above, the Designated Officer by impugned order dated 24.3.2011 allowed the aforesaid application by observing that no efforts were made by the Petitioners to get information whether any whip has been issued by the party or not and nothing has been produced whether the act of the Petitioners has been condoned by the party or not and consequently held that the respective Petitioners have acted contrary to the whip/ mandate issued by the Pradesh Pramukh and consequently declared the Petitioners as disqualified as member of the Fatepura Taluka Panchayat. Hence, Petitioners have preferred the present Special Civil Application under Article 226 of the Constitution of India.
Shri B.M. Mangukiya, learned advocate for the Petitioners has vehemently submitted that the Designated Officer has materially erred in holding that the Petitioners have acted contrary to the mandate / whip issued by the Jilla President, BJP. It is submitted that as such no whip / mandate has been served upon the Petitioners and/ or any members belonging to the BJP. It is submitted that as such one Shri Chhaganbhai Matabhai Pargi was entrusted the duty of serving the whip/ mandate in respect to the post of President of Fatepur Taluka Panchayat, however the said Shri Chhaganbhai Matabhai Pargi did not serve the whip/ mandate upon any of the Petitioners and/ or members. It is submitted that in fact President BJP, Dahod District has served show cause notice upon said Shri Chhaganbhai Matabhai Pargi seeking explanation why the whip / mandate has not been served upon the Petitioners and the members of the Taluka Panchayat belonging to the BJP, which was replied by the said Shri Chhaganbhai Matabhai Pargi. It is submitted that even the affidavit of the said Shri Chhaganbhai Matabhai Pargi who was entrusted the duty to serve the whip/mandate upon the members of Fatepur Taluka Panchayat belonging to the BJP was produced before the Designated Officer, however the same has not been properly appreciated and/ or considered by the Designated Officer. It is further submitted that in fact in the said affidavit he has also admitted that the members inquired about any whip at 10.00 clock in the morning on 9.11.2010, however he was not having any further information and the members were informed accordingly. It is further submitted that even the affidavit of Shri Maheshbhai Buriya District President, BJP, Dahod was also produced before the Designated Officer in which he has specifically stated that he was authorized to issue whip by President, BJP Shri R.C. Fardu and he was also entrusted the work to serve whip/ mandate. It is submitted that in the said affidavit he has also admitted that after the names were selected for the post of President and Vice President, Fatepur Taluka Panchayat, he has entrusted the duty to serve the said mandate to one Shri Chhaganbhai Matabhai Pargi, BJP President, however he had not communicated / served the whip/mandate to the members of the Fatepur Taluka Panchayat who belonged to the BJP and that his explanation was sought by notice dated 9.11.2010 and he has given explanation that he could not reach to assembly hall of the Taluka Panchayat, Fatepur and therefore, he could not serve the whip/mandate. It is submitted that the aforesaid affidavit of Shri Maheshbhai Buriya District President, BJP, Dahod has also not properly appreciated and considered by the Designated Officer. Therefore, it is submitted that when admittedly the whip/mandate was not served upon the Petitioners, the Designated Officer has materially erred in holding that the Petitioners have acted contrary to the mandate /whip issued by the party and/ or authorized officer. It is submitted that in fact the respective Petitioners who were 13 in numbers belonging to the Petitioners also inquired at 10 a.m. with respect to any whip/mandate received, however they were told that no whip/mandate has been issued till that time. It is submitted that despite the same, the Designated Officer has passed the impugned order by observing that it was the duty of the Petitioners to inquire at the time of election whether any whip has been issued by the party or not.
Shri Mangukiya, learned advocate for the Petitioners has further submitted that as such out of the 14 members who were elected on the symbol of BJP 13 members -Petitioners selected their own President and Vice President from amongst themselves i.e. from the member belonging to the BJP itself and that they have not changed any loyalty and the person who has been elected as a President of Fatepur Taluka Panchayat himself was a member belonging to the BJP. Therefore, it is submitted that even on this ground the Petitioners could not have been declared disqualified having acted contrary to the whip / mandate issued by the party. By making above submissions it is requested to allow the present Special Civil Application.
Petition is opposed by Shri Ashim Pandya, learned advocate for H.L. Patel Advocates appearing for the Respondent No. 2 original applicant and Shri Dave, learned AGP appearing on behalf of the Respondent No. 1. It is submitted by Shri Pandya, learned advocate for the Respondent No. 2-original applicant that in fact mandate was issued by the President BJP on dated 7.11.2010 and the Petitioners have acted contrary to the said whip / mandate and as nothing was produced on record that their act has not been condoned by the party, designated officer has rightly passed the impugned order to disqualify the Petitioners as members of the Fetepur Taluka Panchayat and therefore, it is requested to dismiss the present petition.
It is further submitted by Shri Pandya, learned advocate for the Respondent No. 2 that under the Rules it is the duty cast upon the Petitioners to inquire about any mandate / whip at the time of election and therefore, designated officer has rightly passed an order to disqualify the Petitioners by observing that it was the duty cast upon the Petitioners to inquire about any mandate, which the Petitioners have failed and therefore, it is requested to dismiss the present Special Civil Application.
Shri Dave, learned AGP appearing on behalf of the Respondent No. 1 designated officer has submitted that under Rule 10 the duty cast upon the concerned members to inquire with respect to any whip/ mandate and nothing was on record whether any such attempt was made and therefore, the designated officer has rightly passed an order declaring the Petitioners as disqualified as members of the Fetepur Taluka Panchayat.
Heard the learned advocates appearing on behalf of the respective parties. At the outset, it is required to be noted that the respective Petitioners are disqualified as members of the Fatepur Taluka Panchayat under the provisions of the Act on the ground that the Petitioners have acted contrary to the whip/mandate issued by the party and / or the person authorized by the party. Therefore, first of all the original applicant who has alleged that the Petitioners have acted contrary to the whip/mandate is required to establish and prove that in fact whip/mandate was issued by the party and / or persons authorized by the party and that the said whip/mandate was served upon the Petitioners /members of the party they belonged to and/ or it was brought to their notice. In the present case, it appears that on the basis of instruction given by the BJP, President Shri R.C. Fardu on dated 7.11.2010, it was decided that the one Chunilal Punjabhai Charport would contest the election for the post of President and one Taviyad Mineshbhai Parsingbhai would contest the election for the post of Vice President and Shri Maheshbhai Bhuriya, District President, BJP, Dahod was authorized who issued the said mandate / whip and to serve the same upon the respective members of the Fetepur Taluka Panchayat belong to the BJP inclusive of the Petitioners. As such nothing is on record that any further mandate was issued by said Shri Maheshbhai Bhuriya, District President, BJP, Dahod entrusted the work of serving the said mandate / whip to one Shri Chhaganbhai Matabhai Pargi, President, BJP Fatepur Taluka Panchayat and it has also come on record that the said Shri Chhaganbhai Matabhai Pargi had not served the whip/ mandate upon any of the members of the Fatepur Taluka Panchayat belonging to the BJP. It is to be noted that even the said Shri Chhaganbhai Matabhai Pargi was served with the show cause notice by the Jilla President, BJP, Dahod dated 11.11.2010 seeking his explanation for the whip/mandate not being served upon the Petitioners and the members of the Fatepur Taluka Panchayat belonging to the BJP and the said Shri Chhaganbhai Matabhai Pargi also replied to the same. Thus, it is established that the whip / mandate has not been served upon the Petitioners at all. Nothing is on record that any whip/mandate was read over at the time of meeting and / or copy of which was given to the Presiding Officer. In fact, Jilla President, BJP, Dahod has specifically admitted in the affidavit which was produced before the Designated Officer that according to Shri Chhaganbhai Matabhai Pargi, he could not reach hall where the election of President and Vice President of Fatepur Taluka Panchayat was going. Despite the affidavit filed by Shri Chhaganbhai Matabhai Pargi who was entrusted the duty of to serve the whip / mandate upon the members of the Fatepur Taluka Panchayat belonged to the BJP-Petitioners and even the affidavit if Shri Maheshbhai Bhuriya, Jilla President, BJP, Dahod produced before the Designated Officer, the same has not been considered by the Designated Officer and has not been properly appreciated by him. It has also come on record that in fact even at 10. a.m. on 9.11.2010 i.e. the date on which the meeting for the election of President and Vice President of Fatepur Taluka Panchayat was to be held, the Petitioners -members tried to get information even from the Taluka President BJP whether any whip /mandate has been issued or not and as per the affidavit of said Shri Chhaganbhai Matabhai Pargi-Taluka President, BJP at that time no whip/mandate has been received and therefore, members were informed accordingly. Therefore, it has come on record that the Petitioners even tried to get the information with respect to any whip/ mandate. Thus, when admittedly no whip/ mandate issued by the party and/ or person authorized by the party was ever served upon the Petitioners and when nothing is on record that it was brought to the notice of the respective Petitioners with respect to any whip/mandate, Designated Officer has materially erred in declaring the Petitioners disqualified on the ground that they have acted contrary to the mandate/whip. It is to be noted that it is even not the case on behalf of the original applicant that any whip/ mandate was served upon the Petitioners. The impugned order passed by Designated Officer is on surmise and conjectures without properly appreciating and/ or considering the affidavit of Shri Chhganbhai Pargi and Shri Maheshbhai Bhuriya referred to hereinabove. Under the circumstances, the impugned order passed by the Designated Officer disqualifying the Petitioners as members of the Fatepur Taluka Panchayat, cannot be sustained and the same deserves to be quashed and set aside.
At this stage, it is to be noted that in fact there are 14 members of the Fatepur Taluka Panchayat who are elected on the symbol of BJP out of which 13 members are Petitioners, who are disqualified and it is the case of the Petitioners that after proper inquiry when they were informed at 10 a.m. on 9.11.2010 that no any whip/mandate has been received, the members belonged to the BJP themselves decided to nominate the Petitioner No. 13 for the post of President and she contested for the post of President and came to be elected. Therefore, it is the case of the Petitioners that it is not that after getting elected on the symbol of BJP, they have shifted their loyalty and change the party. It is to be noted that present order is not on the aforesaid ground alone. As stated above as such no whip/ mandate has been served upon the Petitioners of which they have alleged to have been committed breach.
view of the above and for the reasons stated above, petition succeeds. The impugned order passed by the Designated Officer dated 24.3.2011 passed in Appeal No. 52 of 2010 disqualifying the Petitioners as member of the Fatepur Taluka Panchayat under the provisions of the Act is hereby quashed and set aside. Rule is made absolute to the aforesaid extent. No cost. Direct service is permitted.