Brindaben Nilanjkumar Shukla vs Pritiben Umeshkumar Soni
2021 Latest Caselaw 12771 Guj

    C/LPA/735/2021                              CAV JUDGMENT DATED: 27/08/2021



              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/LETTERS PATENT APPEAL NO. 735 of 2021
                                    In
               R/SPECIAL CIVIL APPLICATION NO. 10615 of 2021
                                   With
                CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
                In R/LETTERS PATENT APPEAL NO. 735 of 2021
                                   With
               R/SPECIAL CIVIL APPLICATION NO. 10615 of 2021

FOR APPROVAL AND SIGNATURE:


HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH

and
HONOURABLE MR. JUSTICE BIREN VAISHNAV

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

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

2 To be referred to the Reporter or not ? YES

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

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

========================================================== PRITIBEN UMESHKUMAR SONI Versus BRINDABEN NILANJKUMAR SHUKLA & 1 other(s) ========================================================== Appearance:

MR.C.B.UPADHYAYA, ADVOCATE with MR NAMAN K

MS.SHRUTI PATHAK, AGP (99) for the Respondent(s) No. 2 MR BM MANGUKIYA(437) for the Respondent(s) No. 1 MS BELA A PRAJAPATI(1946) for the Respondent(s) No. 1 ==========================================================

CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH and

C/LPA/735/2021 CAV JUDGMENT DATED: 27/08/2021

HONOURABLE MR. JUSTICE BIREN VAISHNAV

Date : 27/08/2021

(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)

1. This Letters Patent Appeal has been filed by the

appellant who was the respondent no.1 in Special

Civil Application No.10615 of 2021. The appeal has

been filed challenging the oral order dated

28.07.2021 passed in Special Civil Application

No.10615 of 2021 filed by the respondent no.1 -

Brindaben Nilanjkumar Shukla. The order under

challenge dated 28.07.2021 reads as under:

"Heard Mr. B.M. Mangukiya, learned advocate appearing for the petitioner and Mr. C.B. Upadhyaya, learned advocate appearing for the respondent no.1 on caveat.

Issue notice, returnable on 3.8.2021.

In the meantime, it will be open for the petitioner to make an application to the learned Designated Authority for an adjournment. Let the same be considered."

2. For the sake of convenience the appellant Pritiben

Umeshkumar Soni shall be hereinafter referred to as

'the applicant'. This is because she had filed Dispute

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Application No.13 of 2020 before the Designated

Authority praying that the respondent no.1 herein be

disqualified under the provisions of Section 3 of the

provisions of Gujarat Provision for Disqualification of

Members of Local Authorities for Defection Act,

1986 (hereinafter to be referred to as 'the Defection

Act' for short). The respondent no.1 herein was the

original respondent whose disqualification was

sought before the Designated Authority.

3. Facts in brief are as under:

3.1 The general elections of the Lunawada

Municipality took place in the year 2018. It was the

case of the dispute applicant (appellant herein) in

Dispute Application No.13 of 2020 before the

Designated Authority that the municipality consisted

of 28 councilors. The Bharatiya Janata Party had 11

candidates elected whereas 14 candidates set up by

the Indian National Congress got elected. Two

independent candidates also got elected. The

respondent of the Dispute Application was the sole

C/LPA/735/2021 CAV JUDGMENT DATED: 27/08/2021

candidate of the NCP who got elected.

3.2 It was the case of the dispute applicant that the

first meeting of the elected councilors was held on

27.02.2018. On 24.08.2020 a general meeting of the

municipality was convened for the elections of the

president and the vice president on the basis of an

agenda notice dated 14.08.2020. The Bharatiya

Janata Party issued a mandate to its members for

electing the president of the municipality. It was the

case of the applicant before the Designated

Authority that the Bharatiya Janata Party issued a

mandate to elect her as the president of the

Municipality. The respondent applicant declared

herself as a candidate for the post of the president of

the municipality wherein she secured 19 voted and

the candidate set up by the Bharatiya Janata Party

i.e. the dispute applicant secured only 9 votes. It

was the case of the dispute applicant before the

Designated Authority that the respondent had

violated the party mandate and voted against it by

contesting elections though she was set up on the

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reserved symbol of the Bharatiya Janata Party. She,

against the mandate of the party, stood for the

elections as an NCP candidate and won the

elections.

3.3 In the Dispute Application filed before the

Designated Authority under Section 3 of the Anti

Defection Act, it was the case of the dispute

applicant that the respondent had voluntarily joined

the Bharatiya Janata Party on 27.08.2019. That,

when the meeting of the Municipality was convened

on 24.08.2020, though the respondent joined the

Bharatiya Janata Party, she against the mandate of

the party stood for the post of the President and won

the election on the seat of the Nationalist Congress

Party and committed a breach of the mandate.

3.4 The Dispute Application No.13 of 2020 was

filed by the appellant herein on 16.09.2020. The

Designated Authority issued notice on 18.09.2020

asking the respondent-applicant to remain present

on 01.10.2020. On an application being made to

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engage an advocate, the hearing was adjourned to

15.10.2020. The date of hearing was thereafter

fixed on 17.10.2020 and 29.10.2020.

3.5 The respondent - applicant before the

Designated Authority filed a written statement

before the Designated Authority to the application

on 01.04.2021 refuting the contention that she had

voluntarily given up the membership of her political

party NCP and joined the Bharatiya Janata Party.

She contested the claim of the applicant (appellant

herein) and stated that she had not filled in any form

for joining the Bharatiya Janata Party and also that

no mandate was received by her. The hearing was

adjourned to 07.04.2021. As a result of the large

scale spread of COVID-19, the office of the

Designated Authority postponed the hearing from

07.04.2021 and fixed the next date on 19.05.2021.

This date was notified by the Designated Authority

to the respondent applicant by an E-mail dated

12.05.2021. On 18.05.2021 an E-mail was sent

provided that the Designated Authority was

C/LPA/735/2021 CAV JUDGMENT DATED: 27/08/2021

requested to provide virtual hearing of the aforesaid

matter in view of the COVID-19 situation. That

request purportedly was not entertained and the

matter was adjourned to 20.05.2021. The hearing

was concluded ex-parte and by an order dated

25.05.2021 the respondent of the Dispute

Application was declared as disqualified. The

respondent of the Dispute Application therefore,

filed Special Civil Application No.7986 of 2021

challenging the order of the Designated Authority

dated 25.05.2021 before this Court. An application

for stay also was filed.

3.6 By an order dated 28.06.2021, the petition filed

by the respondent applicant was admitted, however,

interim relief was refused.

3.7 The refusal of interim relief led to the

respondent of the Dispute Application into filing

Letters Patent Appeal No.555 of 2021 before this

Court. When the Letters Patent Appeal was listed on

02.07.2021 before this Court, on hearing the learned

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advocate Mr.Mangukiya for the appellant

(respondent dispute applicant) and Mr.Chitrajeet

Upadhyaya appearing for the original dispute

applicant, the Court disposed of the appeal holding

that there was violation of principles of natural

justice, inasmuch as, no virtual hearing was

provided by the Designated Authority. The order of

the Designated Authority dated 25.05.2021 was set

aside with a direction that the Designated Authority

should proceed to decide the matter afresh within a

period of four weeks. The counsel for both the

parties agreed that a date be fixed before the

Designated Authority after 10 days and accordingly

the matter was listed before the Designated

Authority on 14.07.2021. The Letters Patent Appeal

together with the Special Civil Application

challenging the order of the Designated Authority

was accordingly disposed of.

3.8 On the date of hearing of the application before

the Designated Authority, the respondent - dispute

applicant on 14.07.2021 filed an application seeking

C/LPA/735/2021 CAV JUDGMENT DATED: 27/08/2021

cross-examination of the dispute applicant (appellant

herein). A reply was filed by the original applicant

and the rejoinder thereto was also filed by the

respondent. By an order dated 23.07.2021, the

respondent applicant's application for cross-

examination was rejected by the Designated

Authority essentially holding that the Designated

Authority is a quasi-judicial authority and since the

proceedings are summary in nature and ought to be

disposed of within the stipulated time of two months,

the application for cross-examination was only with

a view to delay the proceedings and hence, required

to be rejected. The Designated Authority further

observed that the original applicant of the Dispute

Application had not produced any witness for

examination and therefore there was no question of

seeking cross-examination. The authority further

observed that the Division Bench of this Court in

Letters Patent Appeal No.555 of 2021 had directed

that the application be decided within a stipulated

time and therefore the application was misconceived

C/LPA/735/2021 CAV JUDGMENT DATED: 27/08/2021

and was therefore rejected.

3.9 The respondent applicant therefore once again

has approached this Court by filing Special Civil

Application No.10615 of 2021 challenging the order

dated 23.07.2021 by which the application for cross-

examination was rejected. It is on this petition at

the hands of the respondent in the Dispute

Application, that the Court passed the oral order as

quoted herein above dated 28.07.2021.

3.10 Aggrieved by the order of the Court issuing

notice in the petition, the original dispute applicant

approached this Court by filing the present Letters

Patent Appeal. By an order dated 06.08.2021 it was

directed that the papers of the Special Civil

Application also be listed together.

3.11 Accordingly, we have proceeded to hear the

Letters Patent Appeal filed by the original dispute

applicant together with the petition filed by the

respondent in the Dispute Application whose

application for cross-examination has been rejected.

C/LPA/735/2021 CAV JUDGMENT DATED: 27/08/2021

4. We have heard Mr.B.M.Mangukiya learned advocate

for the original petitioner in Special Civil Application

No.10615 of 2020. He has made the following

submissions:

(i) As soon as the Division Bench of this Court by

its' order dated 02.07.2021 fixed 14.07.2021 as the

date for appearing before the Designated Authority

for hearing of the matter, on that very date, he filed

an application seeking cross-examination of the

original applicant (appellant herein).

(ii) Mr.Mangukiya would invite our attention to the

application for cross-examination of the applicant

and submit that the case of the original dispute

applicant before the Designated Authority was that

the respondent no.1 herein had occurred

disqualification because though she had voluntarily

joined the membership of Bharatiya Janata Party on

27.08.2019, she had committed a breach of the

mandate and instead of casting the vote in favour of

the original dispute applicant, she cast her vote in

C/LPA/735/2021 CAV JUDGMENT DATED: 27/08/2021

breach of the mandate in her favour.

(iii) Mr. Mangukiya would submit that several

documents have been placed on record by the

original dispute applicant submitting that the

respondent in the Dispute Application (the petitioner

herein) had joined the Bharatiya Janta Party ('BJP'

for short). No original document was produced but

a photo copy of the form was produced and was

relied upon to submit that the respondent before the

Designated Authority (the petitioner herein) had

voluntarily given up the membership of her own

political party - NCP.

(iv) Mr. Mangukiya would also draw our attention to

the affidavit filed in the LPA and submit that it was

the case of the respondent before the Designated

Authority that the form dated 27.08.2019 was a

forged document and it was morphed. He would

further submit that since it was a specific case of the

respondent before the Designated Authority that the

document dated 27.08.2019 was a forged document

C/LPA/735/2021 CAV JUDGMENT DATED: 27/08/2021

and now that even thereafter there was an opinion of

the handwriting expert clearly stating that the

disputed document did not bear the signature of the

respondent (the petitioner herein) when the original

dispute applicant had stated on oath and produced

the form, she ought to have been permitted to cross-

examine.

(v) Mr. Mangukiya would assail the order of the

Designated Authority which observed that the

application was made solely with a view to delay the

proceedings. He would submit that immediately on

the order having been passed in the Letters Patent

Appeal by which the Designated Authority was

directed to hear the matter afresh on 14.07.2021, on

that very date, he made an application for cross-

examination. There was no reason for the

respondent before the Designated Authority to delay

the proceedings inasmuch as after the filing of the

written statement on 01.04.2021, due to the Corona

pandemic no hearing took place before the

Designated Authority and when it did take place on

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19.05.2021 and 20.05.2021, the application was

decided ex-parte by the order of 25.05.2021 which

was now set aside in the earlier round of litigation.

(vi) The finding of the Designated Authority that the

proceedings before the Designated Authority are

quasi judicial and summary in nature and therefore

there is no need for cross examination particularly

when no witness was produced is also assailed by

Mr. Mangukiya, by relying on a decision of this

Court in the case of D.P. Avadia vs. Competent

Authority reported in 2009 (4) GLR 2974. He

would rely on the decision of the Division Bench to

submit that it is not that in a disqualification

proceeding no cross examination can at all be

allowed.

(vii) He would submit that the Designated Authority

by relying on the decision of this court in the case of

Bhavnaben Pravinbhai Chauhan vs. in SCA No.

12625 of 2015 passed by this Court dated

10.08.2015 in not following the decision of the

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Division Bench had showed lack of judicial discipline

in interpreting a binding decision of the Division

Bench. For this purpose, he has also relied on a

decision of this Court in Mansukh alias Ravji

Gorasaiya LPA No. 717 of 2020 decided on

19.04.2021.

(viii) In support of his submission that even before a

quasi judicial authority it is appropriate to permit

cross examination he relied on a decision in the case

of Dipak Chandrakant Mulchandani vs. Union of

India reported in 2020 JX (Gujarat) 291 and also

in the case of Andaman Timber Industries vs.

Commissioner of Central Excise reported in

(2016) 15 SCC 785.

5. As against the above, Mr. C.B. Upadhyaya who

appeared with Mr. Naman K Brambhatt for the

appellant - dispute applicant would submit that the

Dispute Application was filed on 16.09.2020.

Notices were issued and the first date of hearing

was 01.10.2020. The matter was thereafter

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adjourned and a written statement was filed by the

respondent before the Designated Authority on

01.04.2021. The case of the applicant before the

Designated Authority was that once the respondent

before the Designated Authority had voluntarily

given up her membership of the NCP and joined the

BJP and having voted against the mandate of BJP she

had incurred automatic disqualification. In support

of her stand before the designated authority, the

dispute applicant had produced the original online

form dated 27.08.2019 in support of her case that

the original respondent of the Dispute Application

had become a voluntary member of the BJP.

6. Mr. Upadhyaya would further submit that there was

no fault in the order of the Designated Authority by

denying the benefit of cross examination when the

decision could be taken on affidavits filed by the

respective contesting applicant and the respondent.

7. Mr. Upadhyaya would further submit that the

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application given for cross examination was clearly

an after thought and only with a view to frustrate

and delay the proceedings before the designated

authority. Right from the time the written statement

was filed and even till the Division Bench of this

Court disposed of the appeal on 02.07.2021 wherein

the counsel for the respondent - dispute applicant

had categorically agreed to cooperate with the

hearings filing of an application for cross

examination on the first date of hearing was clearly

with a view to derail the entire proceedings in non

compliance of the directions and spirit in which the

order was passed by the Division Bench in the LPA.

He would rely on the provisions of the Gujarat

Provisions of Disqualification of Members of Local

Authorities For Defection Rules, 1987 particularly

Rule 7 thereof which prescribes the procedure for

deciding the application. He would submit that

there is no provision for the applicant being cross

examined.

C/LPA/735/2021 CAV JUDGMENT DATED: 27/08/2021

8. Having heard Mr. Mangukiya, learned advocate for

the original petitioner - respondent in the LPA -

respondent in the Dispute Application and Mr.

Upadhyaya, learned advocate for the appellant -

respondent in the petition - the original dispute

applicant, we need to consider (a) whether the

Designated Authority could have rejected the

application of the original petitioner before us for

cross examination of the dispute applicant on the

twin grounds namely that there was no provision for

cross examination of witnesses as the proceedings

were summary in nature and (b) whether the

conduct of the original petitioners - respondent

before the Designated Authority in filing an

application for cross examination was with a view to

delay the proceedings before it.

9. Since both the questions are interconnected, we

decide these questions conjointly. From the

narrative of facts mentioned herein above, it will be

clear that the essence of the dispute between the

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parties i.e. the original applicant before the

Designated Authority - appellant herein and the

respondent - original petitioner is that the appellant

invoked the provisions of Section 3 of the

Disqualification Act against the original petitioner on

the ground that she had voluntarily given up her

membership of the National Congress Party and

signed a form and joined the Bharatiya Janta Party

on 27.08.2019.

10.The case of the dispute applicant before the

Designated Authority was that the original petitioner

having voluntarily given up her membership of the

NCP and joined the Bharatiya Janta Party, then

having contested the election of the president by

violating the mandate and contesting on the seat of

the NCP incurred disqualification. In support of her

application, the appellant - original dispute applicant

had furnished a form dated 27.08.2019 showing that

the same was signed by the original

petitioner/respondent in the Dispute Application.

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That statement was made on oath in the original

application filed before the Designated Authority.

11. The application was filed on 16.09.2020 to which the

original petitioner - respondent in the Dispute

Application filed the reply to the Dispute

Application. Perusal of the written statement filed

by the original petitioner / respondent in the Dispute

Application would indicate that the existence of the

membership form signed by the original petitioner

was denied in the written statement. The written

statement filed by the original petitioner is on

record. Perusal thereof would indicate that it is the

case in the written statement by the original

petitioner that she specifically and categorically

denied having filled in any such membership form

and having paid the membership fees. In the

written statement the original petitioner /

respondent in the Dispute Application also stated

that she does not admit that after having joined the

Bharatiya Janta Party she participated in the number

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of programs held by the Bharatiya Janta Party.

12. It was in this context of conflict in pleadings that she

made a request for cross-examination of the

appellant original dispute applicant on 14.07.2021.

13. The question whether the application made for

cross-examination on 14.07.2021 was with a view to

derail the proceedings or delay, can be answered on

the perusal of the observations of the Division Bench

in Letters Patent Appeal No.555 of 2021 filed by the

original petitioner / respondent before the dispute

Designated Authority. After recording the facts as

narrated herein above, the Division Bench of this

Court observed as under:

"6. Having examined the order passed by the Designated Officer on 25.05.2021 which fairly records that a request has been made through E- mail by the counsel for the petitioner-appellant, requesting for virtual hearing, but on account of lack of infrastructure, the virtual hearing was not possible and thereafter having proceeded to decide the matter, we feel that the petitioner- appellant has been injured to some extent by not having been provided adequate opportunity of hearing as such principles of natural justice and fair play have been violated.

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7. Mr.Upadhyay learned counsel for the respondent no.1 also does not dispute the fact that E-mail was sent and at the time of hearing by the Designated Officer, counsel for the petitioner- appellant was not heard.

8. Since the matter involves the rights of an elected member, strict principles of natural justice and procedure ought to be followed. Therefore, on this short point alone, we feel that the order of the Designated Officer deserves to be set aside leaving it open to the Designated Officer to decide the matter afresh after affording due opportunity of hearing to the counsel for the petitioner - appellant. Shri Mangukiya learned counsel for the petitioner - appellant has assured that now the counsel for the petitioner - appellant would conduct the matter in physical proceedings and would not seek any further adjournment or cause any undue delay in the hearing of the proceedings.

9. In view of the above, we dispose of this appeal and allow the Special Civil Application and set aside the order of the Designated Officer dated 25.05.2021. We further direct the Designated Officer to proceed to decide the matter afresh within a period of four weeks. Both the counsels for the parties i.e. the petitioner - appellant and respondent agreed that a date may be fixed before the Designated Officer after 10 days on which date counsels for both the parties would appear before the Designated Officer. We accordingly direct that the matter be listed on 14.07.2021 before the Designated Officer and he shall make an endeavor to decide the matter afresh within a period of two weeks thereafter.

10. Letters Patent Appeal along with Civil Application and the Special Civil Application are disposed of.

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14. What is therefore evident is that after a written

statement was filed on 01.04.2021, the first effective

hearing only was scheduled on 19.05.2021 by virtual

mode. The proceedings were adjourned to

20.05.2021 and thereafter the impugned order of

25.05.2021 was passed which the Division Bench of

this Court set aside on the ground of being violative

of principles of natural justice. Thereafter the

Division Bench fixed the matters on 14.07.2021.

15. It was on the very date i.e. on the first date of

hearing on 14.07.2021 that the respondent before

the Designated Authority filed an application

seeking cross-examination of the original dispute

applicant/appellant herein. The Designated

Authority for the reasons which we have set out

herein above, rejected the application.

16. Reading the procedure rules of the Gujarat Provision

for Disqualification of Members of Local Authorities

for Defection Rules, especially Rule 7 thereof, is

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merely sets out the procedure. Sub-rule (7) of Rule 7

would read that the procedure which shall be

followed by the Designated Authority for

determining any question and the procedure for

preliminary inquiry under Sub-Rule (4) shall be

consistent with the rules of natural justice. Rule 7

of the Gujarat Provision for Disqualification of

Members of Local Authorities for Defection Rules

reads as under:

"7 Procedure.- (1) On receipt of a petition under rule 6 the Chief Secretary to the State Government or the designated officer shall consider whether the petition complies with the requirement of rule.

(2) If the petition does not comply with the requirements of rule 6, the Chief Secretary or as the case may be, the designated officer shall dismiss the petition and intimate the petitioner accordingly.

(3) If the petition complies with the requirements of rule 6, the Chief Secretary or, as the case may be, The designated officer shall cause copies of the petition and of the annexures thereto to be forwarded.-

(a) to the councilor or member in relation to whom the petition has been made; and

(b) Where such councillor or member belongs to any municipal party or a panchayat party and or such petition has not been made by the

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leader thereof also to such leader, and such or councillor member or leader shall, within seven days of the receipt of such copies, or within such further period as the designated officer may for sufficient cause allow, forward his comments in writing thereon the Chief Secretary or the designated officer may for sufficient cause allow, forward his comments in writing thereon the Chief Secretary or the designated officer.

(4) After considering the comments, if any, in relation to the petition received under sub- rule(3) within the period allowed (whether originally or on extention under the sub-rule) the Chief Secretary or designated officer may either proceed to determine the question or, if he is satisfied, having regard to the nature and circumstances of the case that it is necessary or expedient so to do, refer the petition to such officer as he deems fit for making a preliminary inquiry and submitting a report to him.

(5) The Chief Secretary or the designated officer shall, as soon as may be after referring a petition to the officer under sub-rule(4), intimate the petitioner accordingly and cause as announcement to be made with respect to such reference in a meeting of the municipal corporation, panchayat or municipality or if such meeting is not likely to be held soon, cause the information as to the reference to be published in the manner specified in clause (b) of sub-rule(3) of rule 4.

(6) Where the Chief Secretary or designated officer makes a reference under sub-rule (4) to the officer he shall proceed to determine the question as soon as may be after receipt of the report from the officer.

(7) The Procedure which shall be followed by

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the Chief Secretary or designated officer for determining any question and the procedure preliminary inquiry under sub-rule (4) shall be consistent with the rules of natural justice and neither the Chief Secretary or designated officer shall come to any findings that a councillor or member has become subject to disqualification under the Act without affording a reasonable opportunity to such councillor or member to represent his case and to be heard in person."

17. A Division Bench of this Court in the case of

D.P.Avadia (supra) had an occasion to consider the

question as to whether under Sub-Rule (7) of Rule 7,

procedure in consistence with the principles of

natural justice has to be followed. The Division

Bench of this Court in the aforesaid judgment has

held as under:

"11. Having thus heard learned advocates for the parties, we find that Rule 7 of the Defection Rules provides for procedure to be followed by the Designated Officer while dealing with subject of disqualification of members of Panchayat, Municipality, etc. Sub-rule(7) thereof reads as follows :

"(7) The procedure which shall be followed by the Chief Secretary or designated officer for determining any question and the procedure which shall be followed by the officer for the purpose of making a preliminary inquiry under sub-rule(4) shall be consistent with the rules of natural justice and neither the chief Secretary or designated officer shall come to any findings

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that a councillor or member has become subject to disqualification under the Act without affording a reasonable opportunity to such councillor or member to represent his case and to be heard in person."

12. Under sub-rule(7) of Rule 7 thus the Designated Officer has to follow the procedure which is consistent with the principles of natural justice and to ensure that the finding that a member has become subject to disqualification is not reached without affording a reasonable opportunity to such councilor or member to represent his case and to be heard in person. It cannot be disputed that if evidence of any person either on oath or rendered through a statement on affidavit is to be relied upon to render a member disqualified, such person must be permitted to be cross examined by the concerned member. Any departure from this basic requirement would certainly be in violation of principles of natural justice. Therefore, the view of the Designated Officer that Rule 7(7) does not envisage cross examination of the applicant cannot be approved. However, when we are dealing with the proceedings for disqualification under the Defection Rules, whether the applicant upon whose petition the disqualification proceedings have been initiated should be permitted to be cross examined and whether the member concerned should be permitted to lead his oral evidence, must depend on facts of each case and no rigid or uniform formula which would apply in every case can be laid down.

13. It may be noted that in Rule 8 of the Defection Rules, it is provided inter-alia that :

"A petition rising the question as to whether a councillor or member has become subject to disqualification under the Act shall be determined

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as expeditiously as possible and an endeavor to determine the question within two months from the date on which the petition is made under Rule 6."

The proceedings under the Defection Rules therefore, need to be completed as expeditiously as possible.

14. In case of Jagjit Singh v. State of Haryana and others (supra) the Apex Court made following observations :

13.The question whether reasonable opportunity has been provided or not cannot be put in a strait-jacket and would depend on the fact-situation of each case.

14.At the outset, we may mention that while considering the plea of violation of principles of natural justice, it is necessary to bear in mind that the proceedings, under the Tenth Schedule, are not comparable to either a trial in a court of law or departmental proceedings for disciplinary action against an employee. But the proceedings here are against an elected representative of the people and the judge holds the independent high office of a Speaker. The scope of judicial review in respect of proceedings before such Tribunal is limited. We may hasten to add that howsoever limited may be the field of judicial review, the principles of natural justice have to be complied with and in their absence, the orders would stand vitiated. The yardstick to judge the grievance that reasonable opportunity has not been afforded would, however, be different. Further, if the view taken by the Tribunal is a reasonable one, the Court would decline to strike down an order on the ground that another view is more reasonable. The Tribunal can draw an inference from the conduct of a member, of course, depending upon the facts of the case and totality of the circumstances.

xxx xxx

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26.Considering that rules of natural justice are flexible, let us now examine the facts of the present case where the petitioners filed their replies to the complaint and were asked by the Speaker to watch the video recording and point out doctoring thereof, if any. The question is that having failed to do so, can they be heard on the facts of the present case, to say that non-grant of opportunity to cross-examine Ashwani Kumar and to adduce evidence has resulted in violation of rules of natural justice on having simply denied that they have not joined the Indian National Congress? Had they availed of the opportunity and pointed out how the recording was not correct and it was doctored and then not permitted to lead evidence, the argument that there has been violation of principles of natural justice may have carried considerable weight. The petitioners cannot be permitted to sit on the fence, take vague pleas, make general denials in the proceedings before the Tribunal of the nature under consideration. Under these circumstances, mere denial of opportunity to cross-examine or adduce evidence may not automatically lead to violation of principles of natural justice. The principles of natural justice cannot be placed in such a rigid mould. The court, on facts of a case despite denial of opportunity to lead evidence, may come to the conclusion that reasonable opportunity has been afforded to the person aggrieved. The principles of natural justice are flexible and have to be examined in each case.

27. The question to be asked in the ultimate analysis would be whether the person aggrieved was given a fair deal by the authority or not? Could a reasonable person, under the circumstances in which Tribunal was placed, pass such an order? Answer to these questions would determine the fate of the case.

15. The question of granting permission for cross examining the applicant therefore, shall have to be

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judged depending on facts of the case and if such permission is denied, the decision of the Designated Officer shall have to be judged on the touchstone whether the person aggrieved was given a fair deal by the authority or not. In the present case, the appellants had approached this Court at a stage when the Designated Officer had not passed the final order on the application seeking disqualification. During the pendency of the proceedings as already noted such final order has been passed.

16. In that view of the matter and in view of the observations made here-in-above, we do not find that the order of the Designated Officer as well as judgement of the Learned Single Judge need to be interfered with. Whether rejection of the application of the appellants dated 29.1.2009 seeking cross examination of respondent No.2 herein and not deciding the application dated 17.3.2009 seeking permission to lead evidence, has caused any prejudice to the appellants, can be examined only by testing the validity of the ultimate disqualification order if challenged.

17. Before concluding, we would like to clarify few aspects :

a) We make it clear that even in a disqualification proceeding, if the evidence of any witness rendered either on oath or on affidavit, is sought to be relied upon by the Designated Officer to pass any order adverse to a member, such member would have the right to seek cross examination of such a witness.

b) In Civil Application No. 3968/2009 one of the prayers is to set aside disqualification order dated 2.4.2009. No amendment in the Letters Patent Appeal to this effect has been sought or granted. Learned advocates for the parties have also not

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advanced any arguments. In this order, we have not examined the legality of the same and leave it to the appellants to seek their remedy in accordance with law.

c) Validity of Rule 10A of the Defection Rules is not in challenge in the present appeal.

d) Learned Single Judge in his impugned judgement in paragraph-25 made following observation :

25. It is also required to be observed here that the petitioners are branded as defectors. They were elected on the ticket of a particular political party. They have changed their side subsequently. Morally and even legally to some extent, if the allegations against them are proved, they are not entitled to continue as members of Morbi Nagar Palika. The rule of morality requires that they should have resigned and sought the fresh mandate of the people. In any case, the persons who are not coming before the Court with clean hands or with sound moral background will have no right to claim equity or to invoke equitable jurisdiction of this Court.

We are of the opinion that that at an interlocutory stage, when disqualification proceedings were still pending before the Designated Officer, such observations ought not to have been made which would adversely affect the rights of the parties. These observations are therefore, set aside."

18. Perusal of the impugned order of the Designated

Authority would indicate that the Designated

Authority has considered the Division Bench

decision in the case of D.P.Avadia (supra) and also a

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subsequent decision in the case of Bhavanaben

(supra) rendered by a Single Judge of this Court on

10.08.2015. While referring to the decision of the

Division Bench in case of D.P.Avadia (supra), a

learned Single Judge of this Court quoting the

relevant paragraphs of the decision in the case of

D.P.Avadia (supra) in para 10 observed as under:

"10. At this stage, the Court would like to observe that considering the scheme of the Act, if disqualification proceedings are allowed to be procrastinated on account of interlocutory application, such proceedings would be like an unruly horse inasmuch as there will be no control of the Designated Authority on the proceedings. If at this intermittent stage, such applications are entertained and further allowed to be agitated upon, it will delay the disqualification proceedings and such delay would work against the very object and purpose of the Act. When there is specific provision in the Rule, especially Rule 8, to determine the question on the subject of disqualification under the Act within two months from the date on which the petition is made under Rule 6 of the Rules, it could be said that the legislature intended to avoid all delays which are sought to be caused by such applications. Thus, the Court finds that the Designated Authority committed no error in not entertaining the applications made by the petitioners seeking cross-examination of the persons in relation to whom statements of facts are made in the petitions filed by respondent No.2 on the ground that entertaining of such applications would cause delay in disposal of

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the disqualification proceedings. The Court finds no substance in the petition. Hence, all the petitions are rejected."

19. Therefore, we need to consider whether the

respondent dispute applicant - original petitioner is

required to be provided an opportunity of cross-

examination.

20. From the facts on hand what is evident is that the

case of the appellant seeking disqualification of the

original petitioner/respondent before the Designated

Authority hinges on the form of voluntarily securing

membership of the Bharatiya Janata Party dated

27.08.2019 signed by the original petitioner. The

dispute applicant has so stated in her memo of the

application before the Designated Authority on oath

that the respondent dispute applicant before the

Designated Authority has signed such form and sent

it. Such a statement has been denied by the original

petitioner - dispute respondent no.1 before the

Designated Authority in her written statement.

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21. Moreover, in the application for cross examination

and in the affidavits filed before us, it is the stand of

the original petitioner - respondent before the

Designated Authority that the form is a forged /

morphed document and she has never signed the

form. Now even there is the opinion of the

handwriting expert that the original respondent

before the Designated Authority suggesting that the

disputed document does not bear the hand writing

of the respondent before the Designated Authority /

the original petitioner herein.

22. It was in this background that the application for

cross examination of the original dispute applicant

was made by the original petitioner herein. She only

wants to confront the dispute applicant and cross

examine her on the veracity of the document. The

application was made by the respondent before the

Designated Authority on the very first day of hearing

on remand before the Designated Authority.

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23. Reading the decision of the Division Bench in the

case of D.P Avadia (supra) particularly para 17

thereof, which we may reiterate especially para

17(a) is as under:

"17.Before concluding, we would like to clarify few aspects:

a) We make it clear that even in a disqualification proceeding, if the evidence of any witness rendered either on oath or on affidavit, is sought to be relied upon by the Designated Officer to pass any order adverse to a member, such member would have the right to seek cross examination of such a witness."

24. The observations clearly say that the Division Bench

made it clear that even in a disqualification

proceeding, if any witness rendering evidence either

on oath or an affidavit is sought to be relied upon by

the Designated Officer to pass any order adverse to

a member, such member would have a right to seek

cross examination of such a witness. In our opinion,

therefore, the fact that the finding of the Designated

Authority in the order impugned before us in the

petition dated 23.07.2021 which, records that being

a quasi judicial authority and when no witness was

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produced by the applicant and therefore no cross

examination was required is contrary to the law laid

down by the Division Bench of this Court in the case

of B Waida (supra).

25. We, therefore, quash and set aside the order dated

23.07.2021 passed by the Designated Authority in

Dispute Application No. 13 of 2020 by which the

application of the original petitioner for cross

examination of witnesses was rejected. The

application for cross examination shall stand

restored to the file of the Designated Authority. On

06.09.2021 that is the date fixed for hearing before

the Designated Authority in Dispute Application No.

13 of 2020, the appellant /dispute applicant shall

offer herself for cross examination as she is the sole

witness which the original petitioner seeks to

examine. On that date i.e. on 06.09.2021, the

original petitioner shall cross examine the original

dispute applicant and complete such examination /

cross-examination on that very day. The Designated

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Authority shall thereafter on the basis of the

evidence that is recorded shall proceed to decide the

main Dispute Application No. 13 of 2020 in

accordance with law on such other date that may be

fixed as per the convenience of the Designated

Authority. However, we make it clear that the

Designated Authority shall make an endeavor to

decide the matter afresh within a period of two

weeks thereafter.

26. Having quashed the order dated 23.07.2021, passed

by the Designated Authority, Special Civil

Application No. 10615 of 2021 stands allowed.

Letters Patent Appeal No. 735 of 2021 is accordingly

dismissed. No orders on the civil application.

(VIKRAM NATH, CJ)

(BIREN VAISHNAV, J) ANKIT SHAH