Gujarat High Court
Udesinh Chandubhai Parmar vs State Of Gujarat on 31 July, 2021
Bench: Sangeeta K. Vishen
C/SCA/11617/2019 ORDER DATED: 31/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11617 of 2019
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 11617 of 2019
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UDESINH CHANDUBHAI PARMAR
Versus
STATE OF GUJARAT
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Appearance:
MR CP CHAMPANERI(5920) for the Petitioner(s) No. 1,2
MR PJ KANABAR(1416) for the Respondent(s) No. 2
MS DHARITRI PANCHOLI AGP (4) for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 31/07/2021
ORAL ORDER
1. By this petition, the petitioners have prayed for quashing and
setting aside the order dated 30.05.2019 passed by the designated
authority i.e. respondent No.1 whereby, the petitioners were
declared disqualified from holding the post of members of Tarapur
Taluka Panchayat.
2. The petitioners, during the pendency of the present writ
petition, have filed Civil Application No.1 of 2021, inter alia, praying
for direction, declaring that upon completion of the term, for which,
the applicants - petitioners were elected, has come to an end and
the order of removal has lived its life, the applicants can contest the
election of the local authority, if any, held in future.
3. It has been reported that the term of the elected body of the
Panchayat was for 5 years and the term for which, the applicants -
petitioners were elected, has come to an end in the month of
December, 2020.
C/SCA/11617/2019 ORDER DATED: 31/07/2021
4. In view of the term of the petitioners, as the members of the
Taluka Panchayat, having come to an end, consideration of the
present writ petition is rendered academic.
5. However, Mr.C.P. Champaneri, learned advocate for the
petitioners urged that as per the provisions of the Gujarat Provisions
for Disqualification for Members of Local Authorities for Defection
Act, 1986 read with Rules of 1987, further read with the provisions
of the Gujarat Panchayats Act, 1993, the person can be removed
from the post, if he has incurred disqualification; however, he can be
re-elected even in the bye-election or the immediate next election,
as there is no provision for further disqualification for remainder of
the term for which, he has been removed. In support of such
contention, reliance is placed on the judgment of this Court in the
case of Mukundkumar Trikambhai Chauhan vs. Chief Election
Commissioner reported in 2013(1) G.L.H. 898 wherein, this Court
has held in paras 12 and 13 as under:-
"12. If the contention is examined in light of the above
referred legal provision, it is clear that once a person is
disqualified under Anti Defection Act, the provisions of
section 11(4) would apply so far as the Act is concerned
IST 2021 C/SCA/1004/2013 JUDGMENT per the Act, upon
such order passed by the competent authority under the
Anti Defection Act, he shall cease to hold the office.
Therefore, his term no more would continue as Councillor
and it would put an end of his term as Councillor.
Thereafter, by virtue of the provisions of section 41, he
shall be eligible for re election upon his disability ceasing.
Thereafter, when he is to contest the next election, he is
not contesting the election in capacity as the Councillor
of the Municipality, but is contesting the election as voter
simplicitor. There is no express provision made by the
legislature for continuing with the disqualification under
Anti Defection Act by virtue of provisions of section 11(4)
like the person who has been removed from the office
under section 37 for which there is a separate provision
made not only for removal of office under section 37, but
for a further period of four years. There is conscious
omission by the legislature for future disqualification to
C/SCA/11617/2019 ORDER DATED: 31/07/2021
contest the election under section 11(4) of the Act. Even
under the Anti Defection Act, no provision is brought to
our notice showing that after a person is disqualified
under the Anti Defection Act, in future also he shall be
disqualified to contest the election. So far as section 38 is
concerned, it is mainly based on the effect and the
interpretation of section 11 of the Act.
13. If by virtue of section 11(4), a person is not
disqualified for future period, the contention based on the
interpretation that until the term of the municipality is
over, he will not be entitled to contest the election even
for the next term cannot be accepted. If the interpretation
as sought to be canvassed on behalf of the respondents
no.1 and 3 is accepted, the consequence would be that
we will have to read the provision which has been
expressly omitted or not inserted by the legislature and
the another consequence would be that such person who
has been declared disqualified under Anti Defection Act,
would not be in a position to contest the election for all
time to come. Even in case of a person who has been
removed under section 37 by way of misconduct, the
disqualification is not exceeding four years from the date
of the removal. Whereas in case of a person who has been
disqualified under Anti Defection Act, such disqualification
cannot be for all time to come. In our view, the
interpretation of the above referred provisions as sought
to be canvassed on behalf of respondents no.1 and 3
cannot be accepted and it runs counter to the express
scheme of the Act and more particularly the above
referred statutory provisions of the Municipalities Act read
with the Anti Defection Act."
6. Mr.Bhaumik Dholariya, learned advocate for Mr.P.J. Kanabar,
learned advocate for respondent No.2 states that if the request is
accepted, there is no objection.
7. In view of the above pronouncement, Mr.Champaneri, learned
advocate for the petitioners does not press the present writ petition;
however, reserving the liberty that upon completion of the term on
which, the petitioners were elected and their removal having lived
its life, the petitioners be permitted to contest the election of the
local authority in accordance with law, since the disqualification has
come to an end.
8. The petition is disposed of with the aforesaid liberty. No order
as to cost.
C/SCA/11617/2019 ORDER DATED: 31/07/2021
9. In view of the order passed in the main matter, Civil
Application No.1 of 2021 does not survive and hence, the same is
disposed of.
(SANGEETA K. VISHEN,J)
Hitesh
