Bhanumatiben Ramsinh Vaghela vs Designated Officer, Urban ...
2021 Latest Caselaw 16586 Guj

    C/SCA/2269/2021                                CAV JUDGMENT DATED: 22/10/2021



              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 2269 of 2021
                                    With
                 CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
                                     In
                R/SPECIAL CIVIL APPLICATION NO. 2269 of 2021

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI                         Sd/-
==========================================================

1 Whether Reporters of Local Papers may be allowed NO to see the judgment ?

2      To be referred to the Reporter or not ?                            NO

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 ?

========================================================== BHANUMATIBEN RAMSINH VAGHELA Versus DESIGNATED OFFICER, URBAN DEVELOPMENT AND URBAN HOUSING DEPARTMENT ========================================================== Appearance:

MR HMPARIKH, SENIOR ADVOCATE with MR DEEPAK P SANCHELA(2696) for the Petitioner(s) No. 1,2 DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 3 MR CHITRAJEET UPADHYAY, ADVOCATE for MR KIRTAN H

MS NISHA THAKORE, ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No.

========================================================== CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

Date : 22/10/2021

CAV JUDGMENT

1. By way of this petition under Article 227 of the Constitution of India, two petitioners have come forward to challenge the legality and validity of the impugned order dated 15.1.2021 passed by learned

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Designated Authority in Dispute Application No.16 of 2020.

2. Brief facts which have given rise to the present petition are that General Election of Kheda Municipality was conducted in the year 2018 and present petitioners stood elected and the election for second term of the President and Vice president came to be followed on 2.9.2020. The petitioners say that the authority was given by BJP Party President, Gujarat State and the power was given to one Keshaji Chauhan, BJP District President, Banaskantha to issue whip on 2.9.2020 and according to the petitioners, said so-called whip came to be issued by Keshaji Chauhan, District President BJP on the very same day on 2.9.2020. In the meeting for electing President and Vice President held at 12.00 p.m. in the meeting room, there was no scope to collect whip even looking to the letter of Shri C.R. Patil as well as the whip issued by Shri Keshaji Chauhan. According to the petitioners, three line whip was given on the very same day on 2.9.2020, meeting was also followed on that very day on 2.9.2020 at 12.00 p.m. at Kheda Municipality and as such, looking to the above- mentioned countdown, there was no question at all either to serve whip or to collect whip because there is no time space left between since the power given to Devusinh Chauhan. The petitioners have requested the Party President of Kheda to give whip for meeting dated 2.9.2020, but unfortunately, the petitioners were never served with the copy of the whip. Further, the State President has given power to Keshaji Chauhan on 2.9.2020, having its office at Shri Kamlam, Coba Circle, Gandhinagar and the office of Bhartiya Janta Party, Kheda having address at Kamlam, Nadiad-Dabhan Road, Yogi Nagar, Taluka Nadiad, District Kheda.

3. The petitioners have submitted that one show cause notice was issued by the Party president on 2.9.2020 as to why the petitioners should not be suspended on the ground of their conduct was against the interest of the party, to which a detailed reply was submitted. The

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Dispute Application No.16 of 2020 came to be filed by respondent No.2- Dineshbhai Daklsukhbhai Rathod before the Designated Authority in respect of the alleged cross-voting of the petitioners. It is the case of the petitioners that despite the explanation having been given, the authority was pleased pass the impugned order on 15.1.2021. To substantiate the case, an averment is made to the effect that in an identical Dispute Application No.2 of 2020 on 11.8.2020, learned Authority passed an order on the ground that the name given by the District President had no authority in law and by raising multiple contentions, present petition is brought before the Court.

4. The Court on previous occasions issued notice vide order dated 9.2.2021 and thereafter, the Draft Amendment was moved, which came to be permitted vide order dated 15.3.2021 and by an order, the notice issued to the newly added party. The said order reads as under:-

1. Heard learned senior advocate Mr.H.M.Parikh with learned advocate Mr.Deepak Sanchela for the applicants - original petitioners, learned Assistant Government Pleader Ms.Jyoti Bhatt for Respondent No.1 and learned advocate Mr.Cheetrajeet Upadhyay with learned advocate Mr.Kirtan Mistry for the respondent no.2 through video conference.

2. Learned advocate Mr.Deepak Sanchela has tendered draft amendment. The same is taken on record, and is allowed. The applicants are directed to carry out the same forthwith.

3. Learned senior advocate Mr.Parikh submits that if this Court hears the main matter finally on the returnable date of main Special Civil Application and also observes that the result of the election, which is scheduled today, would be subject to final outcome of the main matter being Special Civil Application No.2269 of 2021, in that case, the applicants do not have any objection if the present Civil Application is heard finally with the main matter on 30.03.2021.

4. Learned advocate Mr.Upadhyay submits that he does not have any objection if the main matter is heard finally on the returnable date and ensures the Court that whatever reply. respondent no.2 intends to file shall be filed on or before 24.03.2021.

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5. Learned Assistant Government Pleader Ms.Bhatt submits that even she will be able to take instructions in the matter and file reply, if required, on behalf of respondent no.1, on or before 24.03.2021.

6. Mr.Deepak Sanchela also submits that in case if he chooses to file rejoinder to any reply that may be filed by learned advocate Mr.Upadhyay and learned AGP, the same would be filed on or before 30.03.2021. He also submits that let the present Civil Application be tagged with the main matter and adjourned to 30.03.2021.

7. In view of above, main matter being Special Civil Application No.269 of 2021 is adjourned to 30.03.2021. So far as the present Civil Application is concerned, let the Notice to newly added respondent no.3, in the main matter, be issued at the address mentioned in the draft amendment, which is tendered by learned advocate Mr.Sanchela for the applicants, returnable on 30.03.2021 with a direction to take instructions latest by 30.03.2021, so that the main matter may not be adjourned on the ground of insufficient instructions. The applicants are hereby directed to serve newly added respondent no.3 latest by 17.03.2021. Parties to Civil Application, if choose to file reply, may also complete the pleadings by 30.03.2021.

Direct service today is permitted.

5. Thereafter, the matter was adjourned from time to time and lastly, hearing came to be concluded by both the respective sides on 20.9.2021 and the matter is reserved for orders since the submissions were made at length.

6. Learned senior advocate Mr. H.M. Parikh appearing with learned advocate Mr. Deepak P. Sanchela for the petitioner has vehemently contended that in reality, there was no whip issued at all and even if issued, same is appearing to be a fabricated document against the petitioners. It has been vehemently contended that the show cause notice which has been issued along with which, the whip attached is a fabricated document and to contend that a reference is made to page 70/A, notice dated 2.9.2020 and the whip attached to the same. By referring to the other whip/ Adesh, it has been

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contended that only for the purpose of creating disqualification against the petitioners with specific names of President and Vice President, the whip is said to have been issued, but from page 73 onwards, the whips which are acknowledged by the other members, do not indicate any name as is visible from the whip attached to the show cause notice and as such, this is nothing but a clear case of fabricated document against the petitioners. Mr. Parikh has further contended that there is an obligation cast under Rule 10, which requires a copy of the whip to be with the Chairperson as well. Here, regarding service of the whip and regarding handing over the copy of the whip to the chairperson, there is no evidence at all since the minutes of the meeting are also silent about the same and as such, according to Mr. Parikh, this is a concoction on the part of the authority. Mr. Parikh has submitted that these are the serious issues raised before the authority who passed the impugned order, but a bare reading of the impugned order would make it clear that none of the contentions related to this have been seriously analyzed and taken care of or dealt with by the authority and as such, the impugned order is absolutely without application of mind. Mr. Parikh has further submitted that in respect of Manavadar Nagar Palika, the very authority has taken a contrary view which also reflects a clear contradictory finding and to substantiate that, a reference is made to the order reflecting on page 88 in Dispute Application No.2 of 2020 and thereby has contended that the comity in decision making process is not maintained by the authority which requires the Court to take a serious view.

7. Learned senior advocate Mr. Parikh has further submitted that when a fraud is practiced, everything should fall down and this is a classic case here on the basis of the created fraudulent document in the form of whip attached to the show cause notice, an action is initiated and concluded against the petitioner. As a result of this, there is hardly any justification in maintaining the impugned order.

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Resultantly, the same be quashed. To justify this, a reference is made to the decision of the Hon'ble Apex Court in the case of Bhaurao Dagdu Paralkar Vs. State of Maharashtra and others reported in (2005)7 SCC 605 and based upon it, a contention is raised that since there is a fraudulent attempt apparently made against the petitioners, the impugned order deserves to be quashed on this count alone. Mr. Parikh has after referring to the submissions which have been made at great length before the authority has contended but no reasons at all are assigned by the authority. Non-dealing of the contentions also vitiates the very exercise of discretion. What kind of point has been raised before the authority is mentioned in internal page 6 and page 18 of the petition compilation and Mr. Parikh has submitted that none of the contentions have been dealt with in its true perspective. All these assertions are justified according to Mr. Parikh in view of the fact that whether the whip was issued and served or not and whether the whip was read-over or not is not minitized at all. Had there been any genuine attempt made to issue whip and provided to members, same would have been minitised properly. But, here no such entry also reflecting from the minutes of the meeting. The conclusion which has been arrived by the authority is also perverse in view of the fact that same is quite in conflict with the relevant record and non-dealing of the relevant material amounts to perversity on the basis of which, the Court can intervene and this is a fit case in which the order deserves to be interfered.

8. Learned senior advocate Mr. Parikh by referring to the relevant Rules has contended that in no circumstance, it can be presumed or concluded that the petitioners have voluntarily given up the political party. There is no material to that effect cogently available by which it can be even inferred. That being so, there is hardly any circumstance which may sustain the order in the eye of law. Mr. Parikh has referred to relevant Rules, namely Rule 3(1)(a) and Rule 3(1)(b) coupled with Rule 10 and based upon that, he has submitted that the order

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impugned is unsustainable in the eye of law. Mr. Parikh has relied upon the decision in the case of Katara Bhavesh Babubhai Vs. Designated Authority under the Gujarat Provision for Disqualification of Members and others reported in 2012(5) GLR 4503.

9. As against the aforesaid submissions, to maintain the order and to justify the exercise of discretion, learned Assistant Government Pleader Ms. Nisha M. Thakore appearing on behalf of the respondent authority has submitted that while passing the impugned order, the authority has closely followed the Rule of natural justice. More than adequate opportunity was given to the petitioners and after considering every circumstances which were agitated before him, the authority has taken the view and as such, it cannot be said in any manner that exercise of discretion reflects any perversity. Apart from that, the authority has also considered at length the decision delivered by the High Court of Gujarat reported in 2009(3) GLH 385 and after considering such observations, a detailed order is passed with cogent reasons. When that be so, there appears to be no patent illegality or material irregularity in any manner. Resultantly, the impugned order is just and proper.

10. Learned Assistant Government Pleader Ms. Thakore has further submitted that not only the detailed facts have been closely analyzed, but the contentions have also been dealt with and has also considered several decisions delivered by the High Court as well as the Hon'ble Apex Court, which are very much visible from the order impugned and only thereafter, the decision is taken and as such, there is hardly any case made out to call for any interference. So far as the fabricated whip issue is concerned, the said point is not impressive enough to be examined in view of the fact that the whip which has been attached to the show cause notice issue is in the format of mandate, whereas the other documents from page 72 onwards which are relied upon are merely the orders/ instructions to the respective members, and as

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such, it is not possible to come to a safe conclusion that any fraudulent attempt is made. So far as minitization of circulation of whip is concerned, Rule 10 has been held to be directory insofar as later part is concerned. Hence, no case is made out. In any case, when the authority has exercised the due discretion after threadbare analysis of the material, such finding of fact may not be so rightly disturbed in exercise of the extraordinary jurisdiction. Of-course, there is no embargo in exercising such jurisdiction, but that appears to be not deserving in the case on hand.

11. Learned Assistant Government Pleader Ms. Thakore has further submitted that so far as Manavadar Nagar Palika case is concerned, which is heavily tried to be relied upon, same relates to the Dispute Application No.2 of 2020, and related to different political party but perusal of the facts and the contentions raised are not exactly similar on the basis of which any parity can be claimed and even apart from that, if any view even if is taken, no negative equality can be claimed by the petitioners when their very conduct is in conflict with the political party discipline and instructions issued upon them to which they are attached. A perusal of the relevant provisions of the Defection Act is sufficient enough to indicate that there is hardly any reason made out by the petitioners to persuade the Court to exercise the extraordinary jurisdiction.

12. As against the aforesaid submissions, learned advocate Mr. C.B. Upadhyay appearing on behalf of the respondent No.2 has vehemently opposed the petition. Mr. Upadhyay has submitted that this concoction or fraudulent whip is never the contention from the beginning. The petitioners have effectively participated in the meeting and by their conduct, they have incurred disqualification, which has rightly been held by the authority. Page 71 whip is clear and unambiguous, which the petitioners were under an obligation to obey and further the notice at page 70/A, typed version, has not been even

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replied by the petitioners. As a result of this, looking to the mechanism which has been provided under the Act about disqualification, the petitioners have rightly been dealt with by the impugned order. Additionally, Mr. Upadhyay has submitted that the minutes which are referred to are of meeting of political party and are not of Municipal meetings. The minutes which have been referred to are not the minutes of the meeting, in which they incurred disqualification by the conduct. In their explanation, no such issues have been raised. Mr. Upadhyay has submitted that there is no concept of holding a separate meeting to issue instructions or to follow the whip, on the contrary, same is to be at time when the meeting is to be convened. So far as Rule 10 issue is concerned, the petitioners have never raised such kind of objection about non-service of whip and by virtue of the decision delivered by the Hon'ble Court reported in the case of Dr. Mahachandra Prasad Singh Vs. Chairman and others reported (2004)8 SCC 747, the later Rule is directory and as such, simply because minitization is not reflecting in the minutes book, this would not absolve the petitioners from their obligation and conduct, which is undisputedly has incurred and attracts the provisions of the Defection Act. So, the overall view of the matter is that by the petitioners' conduct themselves, they had voluntarily given up the party as rightly held.

13. So far as the judgment which is tried to be relied upon is having different facts which is not possible to be co-related with the background of the present case and further, the same was related to a different political party, namely Indian National Congress. As a result of this, when the constitution of both the parties in respect of their working is altogether different especially in respect to an issue of whip, there is hardly any reason available for the petitioners to bank upon. Undisputedly, the conduct in seeking support of other political party, despite specific mandate of their own political party and then to act contrary, itself amounts to attract the provisions of the Act. None

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of the contentions as such deserves any consideration to dislodge the finding which has been arrived at by the competent authority.

14. Learned advocate Mr. Upadhyay has specifically contended that it is an ill-founded in the mouth of the petitioners to agitate, particularly when no objection was raised at any point of time in the meeting either with regard to sanctity of the mandate issued by the Bhartiya Janta party nor raised any issue at relevant point of time, on the contrary, the petitioners have conspired with opposition party and acted in contravention of the directions of the political party to which they were attached and got elected from the symbol. Hence, the authority has rightly treated the petitioners by passing the order impugned in the petition. There is hardly any error committed by the authority while passing the impugned order.

15. Learned advocate Mr. Upadhyay has drawn the attention of this Court to one of the decisions delivered by learned Single Judge dated 24.8.2020 passed in Civil Application (For vacating Interim Relief) No.1 of 2020 in Special Civil Application No.9894 of 2020 in the case of reported in 2004(8) SCC 747 (supra) and yet, another decision delivered by the Coordinate Bench dated 18.6.2018 in Special Civil Application No.8477 of 2018 and learned Assistant Government Pleader Ms. Thakore has also relied upon the decision delivered by the Division Bench of this Court dated 19.4.2021 in a group of Letters Patent Appeals head by Letters Patent Appeal No.917 of 2020 and have conjointly opposed the petition and submitted that there is hardly any substance made out to call for any interference. That being the situation, the petition deserves to be dismissed.

16. Having heard learned advocates appearing for the parties and having gone through the material on record, following few circumstances and the material touching to the root of the controversy, are not possible to be unnoticed by the Court:-

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(1) As is visible from the record that the petitioner No.1 Bhanumatiben Ramsinh Vaghela and petitioner No.2 Ashokbhai Udabhai Gohil both were elected in the general election of 2018 of Kheda Nagar Palika on the symbol of Bhartiya Janta Party and though they were the members of Bhartiya Janta Party in the election for the Post of President on 2.9.2020, proposal of Ghanshyambhai Chhotalal Gandhi is placed as an independent candidate, whereas petitioner No.2 Ashokbhai Udabhai Gohil has given support to the said candidate. Further, petitioner No.1 Bhanumatiben Ramsinh Vaghela in the election for the post of Vice President on 2.9.2020, got elected with support of rival political party, i.e. Nationalist Congress Party, and Samajvadi Party. So, this conduct of three members belonging to Bhartiya Janta Party has been clearly found to be in conflict and as such, the authority has come to the conclusion that they have voluntarily given up the basic political party, to which they belonged. On verification of the forms and other materials, the authority below has categorically found that in the election of the President and the Vice President of Nagar Palika dated 2.9.2020, the petitioners have out-rightly violated the whip of the political party, to which they belonged and as such, it has clearly attracted the provision of the Anti-Defection Act, for which they are liable to be disqualified. Hence, by a detailed order on critical analysis of the material and the case law on the subject, a specific conclusion is arrived at, which is reflecting on page 37 of the petition compilation.

(2) While passing the order impugned in the petition, the authority has formulated three issues which have fallen for consideration and the same have been examined at length, as is clearly noticeable from the detailed order, and as such, the order impugned in the petition does not deserve to be construed as perverse in any form.

(3) Further, while considering the effect of Rule 10, the authority

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has also considered the proposition of law laid down by various decisions of the High Court of Gujarat which are mentioned in the order and has come to a definite conclusion that the question of service of mandate or whip does not arise and it is the responsibility of the concerned member to see whether the whip is issued and got served upon them. It is the individual responsibility of a member to inquire about and act according to the wish and whip of the political party, to which they belong. Here, undisputedly, narration is clearly indicating that though the petitioners were belonging to a political party, namely Bhartiya Janta Party, they have with the aid and assistance of the rival political party committed a breach of mandate/ whip. On the basis of such circumstance, there is hardly any reason to deviate from the conclusion which has been arrived at.

(4) At this stage, learned senior advocate Mr. Parikh has contended that the document attached to the show cause notice in the form of mandate/ whip is a fabricated document and it is nothing but a concoction just to remove the petitioners. But, this fact has been gone into at length by the authority, which clearly suggests that this may be an afterthought contention. Mr. Parikh has gone to that extent by submitting that in fact, there is no whip issued at all, which may invoke the provisions of the Act. Now, if this submission is to be tested in light of the material on record and in light of the conclusion which has been arrived at by the authority below, it comes out that Shri C.R. Patil, State President of Bhartiya Janta Party, Gujarat Pradesh vide letter dated 2.9.2020, has authorized Shri Devusinh Jesingbhai Chauhan, District President of Bhartiya Janta Party to issue mandate for the post of President and Vice President in the election and in response thereto, the District President, as indicated above, has issued the whip in the meeting dated 2.9.2020, naming Mr. Ramchandra Ambalal Vaghela for the post of President, whereas for the post of Vice President, Yunusbhai Mehboobbhai Sheikh and despite this, the petitioners have undisputedly acted contrary to this

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mandate.

(5) Now, so far as the whip is concerned, same is very much attached on page 29 of the petition compilation, which was attached with the show cause notice dated 2.9.2020, whereas, the other document on page 72 onwards is an instruction ('Adesh') to act as per the whip which may be issued. So, by referring to this Adesh/ instruction, it is not possible for this Court to come to the conclusion that the document attached is a fabricated document. It is not reflecting whether these petitioners have made any attempt to secure the whip or inquire about it during the course of the meeting or before it and therefore, on the contrary, appears to have not fulfilled their obligation and as such, the submission which has been made that the said document is a concocted document does not inspire any confidence, on the contrary even if it is so, it is in the realm of seriously disputed question of facts for which this Court is unable to come to a definite conclusion, especially when the authority below has examined and come to a specific conclusion against the petitioners.

(6) It is at this stage not out of place to mention that when the show cause notice came to be given with this specific allegation about the conduct and attached whip, same has not been replied at all or countered. It is only during the course of hearing of the proceedings, the contention is tried to be raised and as such, when such is the conduct, the Court sees no reason to exercise the extraordinary jurisdiction.

(7) Further, there appears to be no such process nor agitated before the authority below that a separate meeting is to be held for the purpose of passing or issuing mandate/ whip and to instruct the members to follow and then to participate in the meeting, in which they have to cast their votes. Here, in the instant case, in the meeting when the election of President and Vice President was to take place, these petitioners were very much present in the meeting and by their

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undisputed conduct, as recorded in the order, the petitioners have invited the action which appears to be justified. The authority below at length has examined this issue and there is hardly any reason for this Court to substitute the findings on the basis of the very same material.

(8) Apart from that, the reliance has been placed by learned senior counsel Mr. Parkh on Manavadar Nagar Palika, but where the system of issuance of whip is not exactly similar as contended by learned advocate Mr. Upadhyay and said Manavardar Nagar Palika where the question of non-observance of whip was related to Congress I-party and as such, it is not open for the petitioners to claim any parity out of it. There, the question of authorized whip was examined in the context of the procedure related to constitution of different political party and it is not established by the petitioners here that the same pattern is in the case of Bhartiya Janta Party with respect to the procedure related to issuance of the whip. Hence, when said case was related to a different political party, where different constitution was prescribing a process for issuance of whip, the decision of that Nagar Palika cannot be applied over here as a straitjacket formula.

(9) Further record indicates that there was a clear assertion made in Dispute Application No.16 of 2020, attached to page 42 of the petition compilation in which, a categorical stand is taken and narrated. Hence, few averments contained therein deserve to be quoted hereunder:-

4. The aforesaid meeting was conducted and the said proceedings were undertaken by the Preceding Officer in accordance with law. It is pertinent to note that the respondents herein were elected under the symbol of Bhartiya Janta Party. It is pertinent to note that despite there being an unambiguous direction from the Bhartiya Janta Party by way of a whip (Mandate) whereby it was explicitly directed that for the post of President one Mr. Rameshchandra Ambalal Vaghela and for the post of Vice-President One Mr. Yunusbhai Mehbubbhai Shekh was to be fielded and all the notices of the whip were supposed to remain present and vote for the aforesaid persons.

To the shock and surprise of the present petitioner, the

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respondent No. 1 contested for the post of Vice-President in clear contradiction to the whip issued at the behest of the Bhartiya Janta Party. It is further submitted that the respondent's no.1 to 3 who were elected under the symbol of Bharitya Janta Party voted against the Whip (Mandate) issued by the political party and are therefore liable to be disqualified under the provisions of the Act.

7. It is further submitted that the respondent No. 1 to 3 herein have not raised any objection at the time of the meeting with regards to the sanctity of the mandate issued by the political party that is Bharatiya Janta Party in her favor. It would not lie in the mouth of the respondent No. 1 to 3 at this juncture to object as to the Authority and Authenticity of the aforesaid mandate as the same has already 'acted upon and has been benefited out of the said mandate at the relevant point of time. The fact that the respondent No. 1 to No. 3 herein have not acted in accordance with the mandate issued by the Bharatiya Janta Party clearly indicates that they are hand in glove with the opposite Political Party and have also been involved in horse trading activity by conspiring with opposition party and therefore the aforesaid aspect clearly indicates that the respondents no.1 to no.3 have acted in contravention to the direction issued by the Political Party from which they were elected and are therefore liable to be removed from their membership of the Kheda Nagarpalika under the provisions of section 3 of the Gujarat Provisions for disqualification of members of the local authorities for defection Act, 1986.

8. It is further submitted that the present case falls within the purview of the decisions of the Hon'ble High Court as well as the Hon'ble Supreme Court decisions whereby it has been held that any member that acts against the mandate issued by the Political Party and inference can be drawn by the Competent Authority from the actions undertaken by the Councillor or the conclusion that the same has given up the membership of the political party voluntarily or defied the mandate of the Political Party and therefore the provisions of section 3 (1) (a) and 3 (1)

(b) of the act is attracted and hence the respondent No. 1 to 3 herein have attained disqualification and therefore the aforesaid application is required to be allowed. It is further submitted that the Hon'ble High Court of Gujarat as well as the Hon'ble Apex Court has categorically held that under the purview of Rule 10A a duty is cast upon the members elected from a particular Political Party to verify as to whether any such mandate has been issued at the behest of the Political Party, unless the said has been verified at the behest of the said Member, the said member cannot raise any dispute with regard to non-service of any whip, if the need be.

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And, as such, in view of the aforesaid situation, which is prevailing on record, which is substantiated by the documentary material attached to the application, which have been gone into at great length by the authority below, there is hardly any reason for the petitioners to make out any case.

(10) So, in this peculiar background of aforesaid circumstance, to rely upon the case of Manavadar Nagar Palika is not possible in the case on hand. Nonetheless, when the authority below has examined at length the conduct of the petitioners and the said conduct has been found which deserves to be treated as relinquishment of political party voluntarily, to which they belonged, the case does not deserve to be entertained and this conclusion which has been arrived at is on the basis of the observations made by the Court in various decisions which are discussed at length by the authority. Hence, considering the overall material on record, the Court see no reason to disturb the findings arrived at by the authority below.

17. On the basis of the aforesaid background of fact, a perusal of the proposition laid down by the decisions which have been relied upon, deserves consideration before arriving at an ultimate conclusion.

18. Learned senior advocate Mr. Parikh has relied upon the decision which has been delivered by the Division Bench of this Court in the case of Katara Bhavesh Babubhai (Supra) and has tried to canvass the submission that the authority below has not properly construed the relevant provisions, especially Rule 10. While going through this decision, it has been been observed in para 7.2 that, 'A member can be said to have been posted with the knowledge of the mandate only if the mandate is duly worded in form of a command or a direction. The proper issuance of mandate in its proper form is also expected so that a member knows about it before the meeting, and while attending the

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meeting he can ensure whether a mandate is issued and obtain the same as required under Rule 10 of the Rules, if not served on him.' This observation on the contrary is indicating that the primary responsibility is of a member to secure mandate and as such first part of this Rule 10 will not in any way assist or come to rescue the petitioners, particularly when the mandate which has been attached to the show cause notice has remained unambiguous and clear in its language itself. Undisputedly, the petitioners have not replied to the show cause notice and as such, whether it is a concoction or fabrication is a seriously disputed question of fact and in view of the fact that the petitioners were unaware and in any case, it was the duty of the petitioners to obtain the same. Since this be the situation, in the opinion of this Court, the said decision relied upon by learned counsel would not come in the assistance. On the contrary, a close perusal of the observations made by the Division Bench of this Court would clearly indicate a true purport of Rule 10.

19. As against this, the decisions which have been relied upon by learned advocate Mr. C.B. Upadhyay appearing on behalf of the contesting respondent would rather justify the stand of the authority. A perusal of the statutory provision contained under Section 3(1)(a) of the Act as also the other relevant provisions would make it clear that once having been elected from the symbol of a political party, to which they were attached and acted in conflict with the whip or instruction of the said political party, it is rightly assumed by the authority that they have voluntarily given up the membership and incurred disqualification under the Act. A reference is rightly made to a decision dated 18.6.2018 passed in Special Civil Application No.8477 of 2018.

20. Yet, another decision which has been tried to be pressed into service by learned advocate Mr. Upadhyay, i.e. the decision in the case of Dr. Mahachandra Prasad Singh Vs. Chairman, Bihar Legislative

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Council and others reported in (2004)8 SCC 747, also appears to help his submissions.

21. Further, on construction of Rule 10, a reference is made by learned Assistant Government Pleader Ms. Nisha Thakore of a decision delivered by the Division Bench of this Court dated 19.4.2021 in group of Letters Patent Appeals, headed by Letters Patent Appeal No.917 of 2020, wherein in para 17, the Court has considered the effect of Rule 10, as relied upon, and has observed that first part of Rule 10(A) is mandatory, whereas second part of Rule 10(A) is directory and as such few observations contained in the said judgment are reproduced hereunder:-

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 note-A para-18 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.

A reference is made to other paragraphs, but the reference to para 21 may not be of that much relevance, hence the Court deems it proper

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not to reproduce the same, but conjoint effect of the observations contained in the said decision will have a bearing and considering the aforesaid decision cited before the Court, the Court is of the view that the stand taken by the petitioners is not possible to be accepted.

22. At this stage, serious issues of fraud about service of whip have been raised, but having gone through the detailed order which has been passed by the authority below, the said submissions are not convincing enough to substitute the finding which is based upon not only the critical analysis of the material on record but based upon the observations of several decisions which have been relied upon and as such, in that context, since the stand taken to dispute issuance of or concoction of whip, same being highly disputed question of fact, the Court would not like to enter on the said aspect, since prima facie, it appears that the authority has considered the further aspects and has come to a specific conclusion. It is a settled position of law that the disputed questions of fact are not possible to be adjudicated upon in the writ jurisdiction and the law is clearly spelt out by the Hon'ble Apex Court in the decisions which are reported in the case of Orissa Agro Industries Corpn. Ltd. And others Vs. Bharati Industries and others reported in (2005)12 SCC 725 as well as in the case of New Okhla Industrial Development Authority Vs. Kendriya Karamchari Sahkari Grih Nirman Samiti reported (2006)9 SCC 524 and considering the observations contained in para 8 and 13 respectively of those decisions, the Court is of the opinion that no case is made out to call for such examination.

23. In Addition to it, here is a petition basically under Article 226 of the Constitution of India, in which a challenge is made to the detailed exhaustive order supported by cogent reasons and in due discretion, vested in specific Statute, a mere error even if, cannot be corrected especially when the conclusions are substantially based upon the law discussed and based upon examination of the facts and as such,

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looking to the scope propounded by the Hon'ble Apex Court, this Court is not inclined to disturb or substitute the finding which has been arrived at. Following are the observations which are not possible to be unnoticed by the Court, to which the Court is bound as a part of judicial discipline as well:-

(1) Para 16 and 18 of the decision in the case of Sanjay Kumar Jha Vs. Prakash Chandra Chaudhary and others reported in (2019)2 SCC 499 :-

16. In exercise of discretionary power of judicial review under Article 226 of the Constitution, the High Court might interfere with administrative matters only if the decision is violative of fundamental or basic principles of justice and fair play or suffers from any patent or flagrant error. It is true that the High Court might rectify, in exercise of its power of judicial review, an error of law or even an error of fact, for sufficient reasons, if the error breaches fundamental or basic principles of justice or fair play or if the error is patent and/or flagrant, but not otherwise. However, even in cases where the High Court finds an apparent factual error which goes to the root of the decision, the appropriate course of action would be to give the opportunity to the authority concerned to rectify the error. It is only in the rarest of cases, where the factual error is so obvious that it is rectifiable by the Court itself, that the Court might, to prevent delay and consequential denial and/or miscarriage of justice, rectify the error.

18. It is not for the High Court, exercising jurisdiction under Article 226 of the Constitution of India to embark upon a comparative assessment of the suitability of different candidates for appointment of a dealer of a retail outlet. The High Court, in our view, should not have decided the factual question of whether the land of respondent Prakash Chandra Chaudhary was in Giriyama in view of the reports of the concerned Additional Collector, District Magistrate and Circle Officer to the effect that the land of respondent Prakash Chandra Chaudhary was in Falka block and not within Giriyama. The High Court patently erred in brushing aside the reports of the Revenue Authorities and arriving at a different finding.

(2) Para 34 and 35 of the decision in the case of Mohd. Inam Vs. Sanjay Kumar Singhal and others reported in (2020)7 SCC 327 :-

34. It is a well settled principle of law, that in the guise of

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exercising jurisdiction under Article 227 of the Constitution of India, the High Court cannot convert itself into a court of appeal. It is equally well settled, that the supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and seeing that they obey the law. It has been held, that though the powers under Article 227 are wide, they must be exercised sparingly and only to keep subordinate courts and Tribunals within the bounds of their authority and not to correct mere errors. Reliance in this respect can be placed on a catena of judgments of this Court including the ones in Satyanarayan Laxminarayan Hegde & Ors. vs. Millikarjun Bhavanappa Tirumale10, Bathutmal Raichand Oswal vs. Laxmibai R. 10 (1960) 1 SCR 890 Tarta & Anr.11, M/s India Pipe Fitting Co. vs. Fakruddin M. A. Baker & Anr.12, Ganpat Ladha v. Sashikant Vishnu Shinde13, Mrs. Labhkuwar Bhagwani Shaha & Ors. vs. Janardhan Mahadeo Kalan & Anr.14, Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram15, Venkatlal G. Pittie and another vs. Bright Bros (Pvt.) Ltd.16, State of Maharashtra vs. Milind & Ors.17, State Through Special Cell, New Delhi vs. Navjot Sandhu Alias Afshan Guru and others18, Ranjeet Singh vs. Ravi Prakash19, Shamshad Ahmad & Ors. vs. Tilak Raj Bajaj (Deceased) Through LRs. and others20, Celina Coelho Pereira (Ms.) and others vs. Ulhas Mahabaleshwar Kholkar and others21.

35. In the present case, we are of the considered view, that the approach of the High Court in exercising the jurisdiction under Article 227 of the Constitution of India was 11 (1975) 1 SCC 858 12 (1977) 4 SCC 587 13 (1978) 2 SCC 573 14 (1982) 3 SCC 514 15 (1986) 4 SCC 447 16 (1987) 3 SCC558 17 (2001) 1 SCC 4 18 (2003) 6 SCC 641 19 (2004) 3 SCC 682 20 (2008) 9 SCC 1 21 (2010) 1 SCC 217 totally erroneous. The learned District Judge while exercising his power under Section 18 of the U.P. Act, 1972 and after finding that the order passed by the Rent Controller and Eviction Officer was totally contrary to the law laid down by this Court in Harish Tandon (supra), while interpreting clause (b) of sub−section (1) of Section 12 of the U.P. Act, 1972 and also that the order passed was totally on a perverse reading of the evidence, had interfered with the said order and reversed the same. The High Court totally misinterpreting the order passed by the earlier learned judge in Writ Petition No.7(MS) of 2003 dated 23.8.2006, on an erroneous premise, held that the vacancy order could not have been challenged along with the final order. The finding is totally contrary to the law laid down by the bench of three learned judges of this Court in Achal Misra (supra), a relevant part of which was reproduced by the High Court in its earlier order dated 23.8.2006. The learned judge ignoring Achal Misra (supra), which is a binding precedent, relies on an order of one paragraph of the two learned judges of this Court while holding that the revision was not maintainable. We, therefore, are of the considered view, that the exercise of jurisdiction by the High Court under Article 227 in the present case was patently unwarranted and unjustified.

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24. In view of the aforesaid circumstances and on the basis of the undisputed conduct of the petitioners and in view of the detailed order which has been passed, this Court is of the clear opinion that no case is made out by the petitioners to call for any interference. Accordingly, the petition stands DISMISSED with no order as to costs. Notice is discharged.

25. In view of the dismissal of the main petition, no order on the Civil Application separately deserves to be passed, hence same stands DISPOSED OF.

Sd/-

(ASHUTOSH J. SHASTRI, J) OMKAR