Jyotsnaben Ajaykumar Patel vs Akshaykumar Mahendrabhai Patel
2021 Latest Caselaw 5174 Guj

C/LPA/917/2020                               CAV JUDGMENT




    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/LETTERS PATENT APPEAL NO. 917 of 2020
    In R/SPECIAL CIVIL APPLICATION NO. 11176 of 2020
                           With
        CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
        In R/LETTERS PATENT APPEAL NO. 917 of 2020
                           With
         R/LETTERS PATENT APPEAL NO. 918 of 2020
     In SPECIAL CIVIL APPLICATION NO. 11256 of 2020
                           With
        CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
        In R/LETTERS PATENT APPEAL NO. 918 of 2020
       In SPECIAL CIVIL APPLICATION NO. 11256 of 2020
                           With
         R/LETTERS PATENT APPEAL NO. 919 of 2020
      In SPECIAL CIVIL APPLICATION NO. 11319 of 2020
                           With
        CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
        In R/LETTERS PATENT APPEAL NO. 919 of 2020
       In SPECIAL CIVIL APPLICATION NO. 11319 of 2020
                           With
         R/LETTERS PATENT APPEAL NO. 933 of 2020
       In SPECIAL CIVIL APPLICATION NO. 11266 of 2020
                           With
        CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
        In R/LETTERS PATENT APPEAL NO. 933 of 2020
      In SPECIAL CIVIL APPLICATION NO. 11266 of 2020
                           With
         R/LETTERS PATENT APPEAL NO. 958 of 2020
       In SPECIAL CIVIL APPLICATION NO. 11266 of 2020
                           With
        CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
        In R/LETTERS PATENT APPEAL NO. 958 of 2020
      In SPECIAL CIVIL APPLICATION NO. 11266 of 2020
                           With
         R/LETTERS PATENT APPEAL NO. 959 of 2020
      In SPECIAL CIVIL APPLICATION NO. 11256 of 2020
                           With
        CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
        In R/LETTERS PATENT APPEAL NO. 959 of 2020
       In SPECIAL CIVIL APPLICATION NO. 11256 of 2020
                           With



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       C/LPA/917/2020                                        CAV JUDGMENT



              R/LETTERS PATENT APPEAL NO. 960 of 2020
            In SPECIAL CIVIL APPLICATION NO. 11319 of 2020
                                With
             CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
             In R/LETTERS PATENT APPEAL NO. 960 of 2020
            In SPECIAL CIVIL APPLICATION NO. 11319 of 2020
                                With
              R/LETTERS PATENT APPEAL NO. 961 of 2020
            In SPECIAL CIVIL APPLICATION NO. 11176 of 2020
                                With
             CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
             In R/LETTERS PATENT APPEAL NO. 961 of 2020
            In SPECIAL CIVIL APPLICATION NO. 11176 of 2020

FOR APPROVAL AND SIGNATURE:


HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

==========================================================

1 Whether Reporters of Local Papers may be allowed to Yes see the judgment ?

2 To be referred to the Reporter or not ? Yes

3 Whether their Lordships wish to see the fair copy of the No judgment ?

4 Whether this case involves a substantial question of law No as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== RAJESHBHAI MOHANBHAI PATEL Versus KALPESHKUMAR CHANDRAVAN BHATT & 6 other(s) ========================================================== Appearance:

MR C B UPADHYAYA(3508) for the Appellant(s) No. 1 in LPA Nos.917/2020, 918/2020, 919/2020 & 933/2020 MR SIDDHARTH KHESKANI for the Appellant in LPA Nos.958/2020, 959/2020 MR RN KAPADIA for the Appellant in LPA No.960/2020 MR PS CHAMPANERI for MR RN KAPADIA for the Appellant in LPA No.961/2020

MR HARSHADRAY A DAVE(3461) for the Respondent(s) No. 1 MR RJ GOSWAMI for the private respondents in all the appeals. MR DHARMESH DEVNANI for the State respondents in all the appeals. NOTICE NOT RECD BACK(3) for the Respondent(s) No. 2,3,4 NOTICE SERVED(4) for the Respondent(s) No. 5,6,7 ==========================================================

CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH and HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

Date : 19 /04/2021 CAV JUDGMENT (PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH)

1. These eight appeals have been preferred

assailing the correctness of the judgment and order

dated 06.11.2020 passed by the learned Single Judge

in four Special Civil Applications bearing

Nos.11319, 11176, 11256 and 11266 of 2020 whereby

the learned Single Judge allowed all the four

petitions and quashed the order of the Designated

Authority dated 02.09.2020 whereby the original

writ petitioners had been disqualified as members

of the Dakor Nagarpalika.

2. Facts in short are that in the 2018 election

of the members/councillors of the Nagarpalika,

Dakor comprising of 28 seats, 17 elected candidates

had contested as independent candidates whereas 11

elected members/councillors had contested as

official candidates of the Bharatiya Janata Party.

The agenda for election for the posts of President

and Vice President was declared on 18.02.2018 and

03.03.2018 was fixed as the date for election in

which these 28 elected members/councillors were to

cast their votes. The Bharatiya Janata Party

nominated Rajeshbhai Mohanbhai Patel as its

candidate for the post of President and Jyotsnaben

Ajaykumar Patel as its candidate for the post of

Vice President. It is also admitted that the State

President of Bharatiya Janata Party, Gujarat Unit,

in its communication dated 02.03.2018 clearly

mentioned the names of the nominated candidates for

the posts of President and Vice President on behalf

of the Party and accordingly issued a whip/mandate

that all members/councillors should vote for them.

The said authorization letter was addressed to the

General Secretary of the Kheda District Unit of

Bharatiya Janata Party, who in turn communicated

the same to all the 11 members of the Nagarpalika

who had been elected as official candidates of the

Bharatiya Janata Party.

3. However, in the election which was held on

03.03.2018 for the posts of President and Vice

President, 7 members/councillors elected as

official candidates of the Bharatiya Janata Party

did not follow the mandate rather violated it and

instead voted for an independent candidate who had

been set up by none other than one of the 7

defecting elected councillors. On account of the

said conduct which amounted to violating the

whip/mandate and as a consequence defection from

the party, 4 remaining BJP sponsored elected

candidates moved the petition before the Designated

Authority to declare these 7 members as

disqualified. The Designated Authority took

cognizance, issued notices and after considering

the rival submissions, vide order dated 02.09.2020

declared these 7 elected councillors as

disqualified. Aggrieved by the same, the 7

disqualified councillors filed 4 separate petitions

referred to above, which were clubbed together.

Vide judgment dated 06.11.2020 the learned Single

Judge allowed all the 4 petitions and quashed the

order of the Designated Authority dated 02.09.2020.

Aggrieved by the same, the present 8 appeals had

been preferred.

3.1 Four appeals bearing Letters Patent Appeal

Nos.917, 918, 919 and 933 of 2020 have been

preferred by one of the complainants before the

Designated Authority challenging the order of the

learned Single Judge allowing the four writ

petitions and quashing the order of the Designated

Authority. The other four appeals bearing Letters

Patent Appeal Nos.958, 959, 960 and 961 of 2020

have also been preferred by one of the four

complainants challenging the very same order of the

learned Single Judge passed in four separate

petitions. It may be noticed that in the second set

of appeals filed by the very same person, different

lawyers are representing the appellants in

different appeals.

4. We have heard Shri Chitrajeet Upadhyaya,

learned counsel for the appellant in Letters Patent

Appeal Nos.917, 918, 919 and 933 of 2020, Shri

P.S.Champaneri, learned counsel for Shri

R.N.Kapadia, learned counsel for the appellant in

Letters Patent Appeal No.961 of 2020, Shri

R.N.Kapadia, learned counsel for the appellant in

Letters Patent Appeal No.960 of 2020, Shri

Siddharth Kheskani, learned counsel for the

appellant in Letters Patent Appeal Nos.958 and 959

of 2020, Shri R.J.Goswami, learned counsel

appearing for the private respondents in all the

appeals and Shri Dharmesh Devnani, learned AGP for

the State respondents in all the appeals.

4.1 During the course of arguments although the

appellants in both the set of appeals were the

complainants before the Designated Authority, Shri

Champaneri and Shri Kapadia have sought to support

the reliefs granted by the learned Single Judge but

have tried to argue that the finding recorded by

the learned Single Judge was not correct. Although

we have heard all the learned counsels but we find

some collusion at the stage by the appellants in

Letters Patent Appeal Nos.958 to 961 of 2020. The

filing of the four appeals bearing Letters Patent

Appeal Nos.958 to 961 of 2020 appears to be a

sponsored litigation or may be luxury litigation

for no good ground.

5. Before the learned Single Judge, the

disqualified 7 members, the original writ

petitioners had raised several grounds to attack

the order of the Designated Authority. The learned

Single Judge rejected all but one of the grounds

raised by the original writ petitioners. The only

ground which appealed to the learned Single Judge

which resulted into the petitions being allowed was

that the leader of the Municipal Party had not

registered its rules and that there was no material

on record to establish that the State President was

authorized to issue the whip and further, whether

he had the authority to further delegate his powers

to the General Secretary of the District BJP Unit,

to issue the whip.

6. Shri Chitrajeet Upadhyaya, learned counsel

for the appellant in four of the appeals submitted

that the finding recorded by the learned Single

Judge on the only issue which found favour was

also contrary to law and unsustainable and hence,

the writ petitions were liable to be dismissed. The

learned Single Judge proceeding on a wrong premise

and referring to submissions which had neither been

raised before the Designated Authority nor were

disputed before the Designated Authority, committed

a serious error in allowing the writ petitions.

7. The submissions of Shri Upadhyaya is to the

effect that the issuance of the whip was never

disputed by the disqualified members i.e. the

original writ petitioners before the Designated

Authority. Once the issuance of the whip itself was

not under dispute and not challenged before the

Designated Authority, the learned Single Judge who

was testing the order of the Designated Authority

ought not to have entered into that question.

8. It is next submitted by Shri Upadhyaya that

the registration of the rules and the Authorized

Officer by the leader of the Municipal Party was

only requirement under the rules but it was neither

mandatory nor compulsory, it was only directory.

His submission is that even if there was non­

compliance of Rule 3(b) of the Gujarat Provision

for Disqualification of Members of Local

Authorities for Defection Rules, 1987 (referred to

as "the Rules" for short), it would not defeat the

very object and principle underlying

disqualification on the ground of defection.

9. Shri Upadhyaya has drawn our attention to the

mandate issued by the State President of BJP,

Gujarat Unit, the further communication by the

General Secretary of the BJP, District Unit, Kheda,

the written statement/objections filed by the

original writ petitioners before the Designated

Authority as also the written submissions before

the Designated Authority to show that they had

never ever disputed the issuance of the whip or

that they had no knowledge of the whip issued by

the Party.

10. Shri Upadhyaya also submitted that the

learned Single Judge erred in relying upon the two

judgments in the case of Katara Bhaveshbhai

Babubhai (supra) as also Diptiben Vinubhai Patel

(supra) as the facts of the said two cases were

quite different from the present case and had no

application in the present case. They could not

extend any benefit to the writ petitioners.

11. On the above submissions, Shri Upadhyaya

submitted that the order of the learned Single

Judge cannot be sustained, it deserves to be set

aside, the appeals be allowed and the order of the

Designated Authority dated 02.09.2020 be

maintained. Further, in support of his submissions

on the above aspects, Shri Upadhyaya has placed

reliance upon the following two judgments which we

will deal with at the appropriate place :

(1) Pragneshkumar Jayantilal Soni Vs. Pankajkumar Mangaldas Patel, reported at 2020 (3) GLR 2080.

(2) Dr. Mahachandra Prasad Singh Vs. Chairman and Ors., reported at (2004) 8 SCC 747.

12. On the other hand, Shri R.J.Goswami, learned

counsel for the original writ petitioners­

respondents in the appeals submitted that the

judgment of the learned Single Judge did not

suffer from any infirmity warranting interference

in the appeals. The facts as recorded by the

learned Single Judge are not disputed, that there

was no material on record to show that who was the

person authorized on behalf of the Party to issue

the whip, that the rules had not been notified by

the Leader of the Municipal Party providing such

details and, therefore, the learned Single Judge

rightly allowed the writ petitions. It is also

submitted that the Party itself nominated one of

the 7 defected councillors as its candidate for the

election of the second term of the office bearers

in September, 2020 and further that in the end of

March, 2018, the whip issued by the Party with

regard to the meeting of the budget having been

honoured and respected by the defectors, any

defection by them stood condoned and waived. It is

also submitted that the Party having only issued

show cause notices and having suspended the members

but not having dismissed them from the primary

membership of the Party, all the 7 defectors still

continue to be members of Bharatiya Janata Party.

On such submissions, learned counsels for the

respondents submitted that the appeals being devoid

of merits deserve to be dismissed.

13. The other learned counsels appearing for the

appellants in Letters Patent Appeal Nos.958 to 961

of 2020, namely, Shri P.S.Champaneri, Shri

R.N.Kapadia and Shri Siddharth Kheskani have in

effect supported Shri Upadhyaya's submissions.

14. We have considered the submissions advanced

by the learned counsels for the parties. The first

submission advanced by Shri Upadhyaya, learned

counsel for the appellants is to the effect that

the sole point on which the learned Single Judge

proceeded to allow the petition was neither raised

before the Designated Authority either in the

objections filed before it or in the written

arguments submitted by the writ petitioners before

the Designated Authority. In the absence of any

foundation to that effect the Designated Authority

rightly so did not look into the issue as to

whether the whip had been issued by the competent

Authorized Officer of the party. As a matter of

fact, the original writ petitioners had admitted of

having received the whip before the voting took

place. It was State President of the party who had

issued the whip and had forwarded it to the

District President, District Kheda for

communicating it to the councilors. The State

President had not delegated any of his powers to

the District President for issuing the whip. It was

not that the District President of Kheda unit had

issued the whip. He had only communicated the whip

issued by the State President. It was a wrong

premise raised before the learned Single Judge that

the District President had issued the whip upon a

delegation which was not permissible. This fact is

factually incorrect.

15. The contentions with regards to Rule 3(1) was

neither raised before the designated authority nor

before the learned single Judge by the appellants.

The term "leader of the municipal party" and the

term "leader of the political party" have been

mixed­up and misconstrued for the purpose of

providing the aforesaid reasoning and rational by

the learned single Judge. As per Rule 3(1), non­

providing of information by the leader of the

municipal party cannot be construed to be fatal so

as to come to the conclusion that the whip was not a

valid whip. It is not mandatory for the designated

officer nor does the said Rule bar the designated

officer from exercising any jurisdiction under the

provisions of Section 3 of the Act. Moreover, the

designated officer has rightly considered the

material on record and the submissions and pleadings

of both the parties and after considering the same

has given a proper reasoning and finding to come to

the conclusion that the whip issued by the political

party was a valid whip and the same was defied.

Therefore, the reasoning given by the learned single

Judge is contrary to the provisions of law as well

as the record and the pleadings of the case. The

appeals are required to be allowed.

16. It is further to be noted that the respondents

have themselves admitted on record that they had

defied the whip and the said defiance is deemed to

be condoned by the party considering the fact that

no formal order of suspension has been passed by the

political party. This is a clear admission on the

part of the respondents as to defiance of whip and

it is sufficient evidence to invoke the provisions

of Section 3(1)(B) of the Act and therefore also the

order of the Designated Authority does not suffer

from any infirmity. No interference was called for

in the order of the Designated Authority.

17. The only defence which has been raised by the

respondents from very beginning is with regards to

the service of whip. Considering the provisions of

Rule 10 and the judgment of this Hon'ble Court in

the case of Pragneshkumar Jayantilal Soni (supra),

it is incumbent upon the councilors to verify

whether a valid whip has been issued by the

political party or not and if such a whip has been

issued it is incumbent upon the members to obtain

the copy of such a whip. In the aforesaid judgment,

it has been specifically mentioned that the first

part of Rule 10(A) is mandatory and the second part

of Rule 10(A) is directory. The learned single Judge

although accepted the said contention but merely

relying upon the provisions of Rule 3(1), the

learned single Judge allowed the aforesaid

petitions, which is contrary to the settled legal

principles.

18. It is pertinent to note that in the case of

Dr. Mahachandra Prasad Singh (supra), more

particularly note­A para­18 of the said judgment, it

has been held that the Rules are not mandatory but

directory. It is further submitted that in light of

the aforesaid judgment in case of Pragneshkumar

Jayantilal (supra), the Hon'ble Division Bench of

this Hon'ble Court has held that only the first part

of Rule 10(A) is mandatory and all other Rules are

directory in nature and therefore also non­

compliance of Rule 3(1) by the leader of the

municipal party cannot be fatal for the purpose of

arriving at a decision that the order passed by the

designated authority is not in accordance with law.

19. The 'leader of the political party' is

altogether a different entity as compared to the

term 'leader of the municipal party'. Rule 3(1) has

been prescribed by the legislature with a view to

deal with a situation wherein there is collusion or

wherein other members who are independent candidates

who have supported a particular political party.

Therefore, non­providing of information at the

behest of the leader of the municipal party cannot

be construed to be mandatory in nature and therefore

the finding given by learned single Judge is not

correct.

20. The learned single Judge has also erred in

observing that there is no authority vested with the

State President nor District General Secretary

because the constitution of the national political

party has not been produced on record. It is

pertinent to note that it can safely be assumed that

the respondents who claimed to be members of the

Bhartiya Janta Party are expected to be well

informed about the authority of the State President

under the constitution of a nationalized party. Over

and above, the respondents have never raised that

contention before the designated authority nor the

same has raised the said contention before the

learned single Judge in the petitions preferred. It

is pertinent to note that party president at the

State level is the authorized person under the

constitution of the political party and an

affirmative finding has been given by the designated

officer on this count. In absence of information

under Rule 3(1), the authority of the State

President cannot be doubted by the learned single

Judge when defiance has been admitted by the

respondents on record.

21. The reasoning given by the learned single

Judge after relying upon the judgments of this Court

in the cases of Katara Bhaveshbhai Babubhai vs.

Designated Authority under the Gujarat Provision for

Disqualification of Members and others, reported in

2012 (5) GLR 4503 as well as Diptiben Vinubhai Patel

vs. State of Gujarat rendered in Special Civil

Application No.7910 of 2020, dated 31.08.2020, is

misplaced. In the case of Katara Bhaveshbhai

Babubhai (supra), though the members acted in

accordance with the provisions of Rule 10 and

inquired about the valid mandate issued by the

political party, the concerned office bearer

deliberately did not serve the copy of the said whip

though the members tried to obtain the copy of the

whip. Under those circumstances, the aforesaid

decision has been passed. On facts it has no

application to the present case.

22. In the case of Diptiben Vinubhai Patel

(supra), this Court had given the finding to the

effect that the State President did not have any

power to issue whip because in the said matter the

whip was issued by the State President of Indian

National Congress Party, which operates through a

completely different constitution and in the said

party the State President is merely a representative

of the State Committee and the President has to act

in accordance with the resolutions passed by the

State Committee. In the said case there was no such

resolution passed by the State Committee authorizing

the State President as indicated in their

constitution and therefore under those circumstances

such observations were made by the learned single

Judge in the case of Diptiben Vinubhai Patel (supra)

and therefore the same was not applicable to the

present case on facts.

23. On all the above counts the judgment of the

learned Single Judge setting aside the order of the

Designated Authority cannot be sustained. The

appeals are allowed. The impugned judgment and

order of the learned Single Judge is set aside and

that of the Designated Authority is maintained.

Civil Applications, if any, stand disposed off.

(VIKRAM NATH, CJ)

(ASHUTOSH J. SHASTRI, J) GAURAV J THAKER/RADHAN