Smt Heenaben Mukeshbhai Bhoi vs Smt Pritiben Umeshkumar Soni
2021 Latest Caselaw 17106 Guj

    C/SCA/12299/2021                               CAV JUDGMENT DATED: 29/10/2021



               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 12299 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 ?

================================================================ SMT HEENABEN MUKESHBHAI BHOI Versus SMT PRITIBEN UMESHKUMAR SONI ================================================================ Appearance:

MR BM MANGUKIYA(437) for the Petitioner(s) No. 1,2,3 MS BELA A PRAJAPATI(1946) for the Petitioner(s) No. 1,2,3 MS MANISHA L SHAH, GOVT PLEADER with MR HARDIK MEHTA, AGP for Respondent No.2 MR NAMAN K BRAHMBHATT(11307) for the Respondent(s) No. 1

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

Date : 29/10/2021

CAV JUDGMENT

1. By way of this petition under Article 226 of the Constitution of India, the petitioners have challenged the legality and validity of the impugned order dated 31.7.2021 passed by respondent No.1 authority in Application No.12 of 2020, whereby the petitioners have been disqualified as Councilor of Lunavada Municipality under the provisions of the Gujarat Provisions for Disqualification of Members of Local Authorities for Defection Act, 1986 (Act No.23 of 1986) (hereinafter to be referred as 'the Act') and the Rules framed thereunder.

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2. The background of facts of the present petition is that the general election of Lunavada Municipality took place in the year 2018 and the petitioners were set up as official councilors of Bhartiya Janta Party. The petitioner No.1 was set up as a candidate of BJP from Ward No.4, whereas petitioner No.2 was set up as a candidate from Ward No.5 and petitioner No.3 was set up as a candidate of BJP from Ward No.7 and was declared as selected by the competent authority appointed by the State Election Commission. The result of Lunavada Municipality was declared on 19.2.2018.

3. The Municipality is consisting of 28 councilors, out of which, 11 candidates were set up by Bhartiya Janta Party, who got elected, whereas 14 candidates set up by Indian National Congress Party also got elected, whereas 02 candidates were independent who were elected in afore-mentioned election. One sole candidate of NCP also got elected and it was as such a fractured mandate. In this election, the Indian National Congress Party was single largest party, whereas the Bhartiya Janta Party was the second largest party in the election of Lunavada Municipality. It is the case of the petitioners that the first meeting of newly elected councilor of Municipality was held on 27.2.2018 and in the said meeting, one Mr. Jayendrasinh Solanki was elected as a President, who belonged to Indian National Congress Party. The term of the Municipality is of 5 years, but the President and Vice President tenure, according to the petitioners, is of 2 ½ years and since the President was elected in September 2018, the terms of the President and Vice President and members of various committees were expiring in August 2020.

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4. A general meeting of the Municipality was convened for electing the President and the Vice President by circulating Agenda Notice dated 14.8.2020 and the meeting was fixed on 24.8.2020.

5. It is the case of the petitioners that the Bhartiya Janta Party issued a Mandate to its members for electing the President of the Municipality and the said mandate was issued by Shri C.R. Patil, President of Gujarat Unit of Bhartiya Janta Party. In the said meeting, Smt. Brindaben Shukla was declared herself as a candidate for the post of President of the Municipality. The election was carried out by the Presiding Officer. Said Smt. Brindaben Shukla secured 19 votes and candidate set up by Bharatiya Janta Party i.e. respondent No.1 secured 09 votes only and as such Smt. Brindaben Shukla was declared as President. So far as the post of Vice President is concerned, the candidate set up by BJP was also not elected and Mrs. Meenaben Rakeshbhai Pandya was declared in the said election as Vice President. So, in the said meeting on 24.8.2020, Smt. Brindaben Shukla was declared as elected President, whereas, Mrs. Meenaben Rakeshbhai Pandya was declared as Vice President. In the said meeting, out of 11 councilors of BJP, 03 councilors defied the mandate by political Party of respondent No.1, hence on 28.9.2020, a show cause notice was issued upon the petitioners calling upon them within a period of 7 days to explain as to why the petitioners shall not be removed from the party since they have committed breach of the mandate of the party, to which they belong. Simultaneously, the respondent No.1 Smt. Pritiben Umeshkumar Soni was set up as candidate for President of Municipality and for which, a mandate was issued, but the petitioners have defied the said mandate. It has been alleged that in the meeting, they incurred disqualification under the provisions of the Defection Act, precisely Section 3 of the Act. In the said application, say of the respondent No.1 was that Smt.

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Brindaben Shukla and the present petitioners have cast their votes in favour of Smt. Brindaben Shukla along with the councilor of Indian National Congress Party despite the fact that the petitioners were belonging to Bhartiya Janta Party and the mandate was issued which they have not obeyed and voted in favour of Smt. Brindaben Shukla along with the councilors of Indian National Congress party, same is the case with respect to the Vice President election which was also breached by the petitioners. Hence, a substantive application was also submitted before the Designated Authority for taking steps. In respect of this application, respondent No.2, i.e. the Designated Authority, had issued notice calling upon the petitioners to remain present on 1.10.2020, thereby they appointed an advocate to represent and then the matter was adjourned to 15.10.2020. It is further the case of the petitioners that the application under the Defection Act, which was presented by the respondent No.1 was supported with affidavit, but then, later on, an application was submitted before respondent No.2 on 13.10.2020, that Application No.12 of 2020 may be permitted to be withdrawn unconditionally and to that effect, the respondent No.1 gave an affidavit as well.

6. It is the case of the petitioners that at this stage, one local MLA on the very next day approached the respondent No.2 with one Tejpalsing Surpalsing Solanki and made an application to substitute him as the petitioner in Application No.12 of 2020. This application was submitted by Mr. Tejpalsing Surpalsing Solanki on 16.10.2020. The said application was accepted by respondent No.2 in absence of the petitioners and respondent No.1, as averred by the petitioners, and according to the petitioners, his application was not considered at all, since on 15.10.2020, the matter stood finally concluded at the instance of the respondent No.1, who requested to withdraw. But, unfortunately, according to the

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petitioners, on the application submitted by the local MLA Mr. Tejpalsing Solanki, notice was issued for fixing the date of hearing on 29.10.2020. The petitioners submitted reply to the said application of Mr. Tejpalsing categorically pointing out that the respondent No.1 personally appeared before the respondent No.2 on 15.10.2020, withdrew the petition and as such, there was no question of continuing with the main proceedings and it has been recorded in the rojkam as well and as such, according to the petitioners, the application submitted by Tejpalsing cannot be accepted. Pursuant to the reply having been filed, a counter reply was submitted by Mr. Tejpalsing on 26.11.2020 and self- contradictory stand was raised that the petitioners have given up the political party and therefore, acquired disqualification. However, the respondent No.2 decided the application submitted by Mr. Tejpalsing and held that the application cannot be accepted in view of the judgment rendered by the Hon'ble Court and as such, the application is not required to be considered and as such, the application to be joined as petitioner No.2 came to be rejected vide order dated 18.3.2021 and along with that, the application submitted by respondent No.1 for withdrawal of the Application No.12 of 2020 also came to be rejected.

7. It is the further case of the petitioners that pursuant to the order passed by respondent No.2, the petitioners then submitted an application on 25.3.2021, requesting the respondent No.2 for an adjournment, so as to enable them to submit reply in the main application. The other Application No.13 of 2020 was filed by Smt. Brindaben Shukla which was also being conducted parallel to Application No.12 of 2020. The advocates for the petitioners sent an email on 1.4.2021, stating that the written statement is being filed and since the advocate appearing for the petitioners was diagnosed for Covid-19, he would not be in a position to appear

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and as such, sought three weeks' time to appear and make an oral submission. By the time, the petitioner Nos.2 and 3 have submitted their statement statements on 1.4.2021 raising the contention to the effect that the signatures of the petitioners were taken on blank mandate by the Party President at a district level, which blank mandate was not specifying the name of the candidate in whose favour, vote was to be cast and when the petitioners went to verify from the office of the Party President of District Mahisagar about in whose favour the mandate is issued, it was informed that names would be read over at the time of meeting and as such, there was no whip issued to the petitioners, there is no question of any disqualification nor any question of voluntarily given up the membership of the political party. By raising such kind of contention, reply was submitted and next date of hearing was fixed on 7.4.2021. However, proxy of the advocate for the petitioners requested for short adjournment since the advocate of the petitioners was not in a position to appear before respondent No.2 and since there was a large scale spread of Covid-19, even in the office of respondent No.1, all hearings were postponed from 7.4.2021 and next date was fixed as on 19.5.2021 and according to the respondent No.2, the matter was notified a day before, i.e. on 18.5.2021. An application was submitted requesting the respondent No.2 to arrange for virtual hearing vide application dated 20.5.2021. This was in view of the fact that the Registrar General the High Court by more than one circular on 6.4.2021 as well as on 15.4.2021 directed that physical hearing in all subordinate forums including the Courts be suspended, to be carried out by virtual hearing on or before 19.4.2021. Though it was communicated that the advocate of the petitioners was suffering from Corona Virus, was unable to remain present for hearing,the matter was fixed. That despite non-availability in such

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circumstance, according to the petitioners, the respondent No.2 concluded the hearing on 20.5.2021. The respondent No.2 has further recorded that the petitioners have committed a breach of the mandate of the political party by not voting as per the mandate of the party and thereby, incurred disqualification under Section 3 of the Act. It was further concluded that it is the duty of the petitioners to verify whether the whip was issued or not in view of the effect of Rule 10 of the Rules and thereby, by an order dated 25.5.2021, the authority has declared the petitioners disqualified by passing an an order in Application No.12 of 2020. In the said order, according to the petitioners, it was surprising to note that the petitioner No.1 though had not submitted written reply reflects on page 11, it has been recorded that the written reply has been submitted in her name. Having learnt about this fact, the petitioner No.1 had submitted an application for getting the copy of the entire file of Application No.12 of 2020 from the respondent No.2. The petitioner also paid requisite fees while submitting such copy on 5.6.2021. After receiving the entire copy of the Application No.12 of 2020, the petitioner found that the petitioner No.1 had not given any such reply. However, at the first stage, written reply was provided, wherein at the bottom, it has been mentioned 'Raju Karnar Mukeshbhai Bhoi'. In fact, Mukeshbhai Bhoi is husband of the petitioner No.1 who had not produced any such written reply on behalf of petitioner No.1, neither the petitioner No.1 in her signature gave reply and as such, according to the petitioner No.1, some fraud is committed in submission of the written reply for and on behalf of petitioner No.1. All quasi judicial functions were practically under non-functioning mode, but despite having no extreme urgency, in a hurried manner, the application came to be decided, by alleging that the respondent No.2 was under the dictates of respondent No.3, who recorded the order on 25.5.2021

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in Application No.12 of 2020 and without affording any opportunity to the petitioners and therefore, a petition was brought before this Court, being Special Civil Application No.8536 of 2021. It is further the case of the petitioners that by that officer, two applications were disposed of on the same line, one being Application No.12 of 2020 preferred by respondent No.1 and Dispute Application No.13 of 2021, which was in case of Smt. Brindaben Nilanjkumar Shukla, who got elected as President of Lunavada Municipality.

8. The petitioners have further asserted that initially, vide order dated 28.6.2021, Rule was issued, but interim relief was refused and operation of the order was stayed for a period of 5 days originally, so as to enable the petitioners to submit Special Civil Application No.7986 of 2021. Special Civil Application No.7986 of 2021 filed by Smt. Brindaben Shukla, who later on filed Letters Patent Appeal No.555 of 2021 before the Division Bench, in which on 2.7.2021, Letters Patent Appeal as well as the Special Civil Application both were disposed of by issuing certain directions by setting aside the order passed by the Designated Authority on 25.5.2021, which was passed in Application No.12 of 2020. Later on, in view of the order passed by the Division Bench of this Court in Letters Patent Appeal No.555 of 2021, the Hon'ble Court, on 12.7.2021, disposed of petition filed by the present petitioners being Special Civil Application No.8536 of 2021, by quashing and setting aside the order of respondent No.2 dated 25.5.2021 passed in Dispute Application No.12 of 2020 and issued further direction in accordance with the order recorded by the Division Bench in Letters Patent Appeal No.555 of 2021. Later on, on 14.7.2021, hearing of the Dispute Application was fixed. At that point of time, the advocate for the petitioners remained present with an application for adjournment since he sustained injury on her leg and was unable to climb the stairs. The said application was

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considered and next date was given as 19.7.2021. Again on 19.7.2021, the application was submitted by the advocate for the petitioners to file reply and also application for cross-examination. The date was then fixed on 20.7.2021, on which day, written statement was submitted by the petitioners. Later on, the date was given on 26.7.2021, on said date, the respondent No.1 submitted rejoinder affidavit. Since this had taken place simultaneously, one day accommodation was sought by the advocate for the petitioners to go through the rejoinder filed by the respondent No.1 and then the matter was fixed on 27.7.2021. On that day, the dispute application was heard finally by the respondent No.2 and vide order dated 31.7.2021, the Dispute Application No.12 of 2020 which was filed by the respondent No.1 was allowed. Feeling aggrieved and dissatisfied with the said order dated 31.7.2021 in Dispute Application No.12 of 2021, the petitioners have filed the present petition under Article 226 of the Constitution of India.

9. The Coordinate Bench on 26.8.2021 was pleased to issue notice and notice as to interim relief and then the matter was adjourned from time to time. In view of the circular dated 6.9.2021, since by-elections of various Nagar Palikas have been ordered to be conducted, a Draft Amendment was moved during the course of hearing, but since the notices were not received back qua respondent Nos.1 and 3, learned advocate Mr. Mangukiya for the petitioners requested for issuance of fresh notice. Accordingly, on 7.9.2021, upon request of learned advocate, fresh notice was issued returnable on 13.9.2021. Then, learned Assistant Government Pleader requested for some time and as such, the matter was kept on next date, i.e. on 14.9.2021. On that day, a request for time was made on behalf of learned advocate Mr. Mangukiya for the petitioners. Accordingly, the matter was listed on 16.9.2021. Again, Mr. Mangukiya was accommodated on

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17.9.2021, so as to enable him to produce on record the relevant orders and as such, upon his request, the matter was adjourned to 20.9.2021. On that day, a draft amendment was submitted by Mr. Mangukiya dated 18.9.2021, which was allowed to be carried out forthwith and the arguments of learned advocate Mr. Mangukiya commenced and then the matter was posted on next date. Again, Mr. Mangukiya continued his submission and as such, the matter was kept on 23.9.2021 since the hearing was continuing. Then, on 23.9.2021, neither Mr. Mangukiya remained present nor any mentioning was made though the matter was in the process of hearing, but in the interest of justice, the matter was then kept on 27.9.2021. On 27.9.2021, learned advocate Mr. Mangukiya has concluded his submissions and learned advocate Mr. C.B. Upadhyay requested for some time on account of personal difficulty and as such, next date was given on 29.9.2021. On 29.9.2021, hearing of Mr. Upadhyay as well learned Government Pleader Mrs. Manisha L. Shah were concluded and for giving rejoinder to that, the colleague of Mr. Mangukiya requested for some time. Accordingly, the matter was kept on 30.9.2021 and on 30.9.2021, hearing was concluded and the matter was posted for orders.

10. Learned advocate Mr. B.M. Mangukiya appearing on behalf of the petitioners has submitted that the order passed by the authority below is suffering from vice of non-application of mind inasmuch as the issues raised before the authority have not been touched at all. It has further been contended that here is a case in which, there is no valid whip issued by the political party and as such, unless and until a valid whip is issued, member / councilor, may not be declared as hit by law. Further, here is a case in which, a perusal of the contents would make it clear that the whip was not at all issued by the authority as contemplated under the Statute. It has further been submitted by Mr. Mangukiya that the petitioners

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have verified about the fact of issuance of whip or not. But, according to the petitioners, the whip was not issued at all which can be said to be a valid whip. Further, it has not been served at all nor read-over in the meeting and as such, if that be the case, there is hardly any circumstance for the authority to pass the impugned order. By referring to Section 3 of the Act, Mr. Mangukiya has submitted that the alleged conduct of the petitioners can never be said to have attracted the provisions of the Defection Act. Much emphasis has been submitted by Mr. Mangukiya that here is a case in which the very same respondent authority has taken different view in case of another Dispute Application No.3 of 2019 and by way of a brief draft amendment, the order of the said authority dated 18.3.2020 is produced and thereby contended that a contradictory stand has been taken by the authority, which is apparently uncalled for and as such, the very decision making process is irregular and the Court can exercise the jurisdiction under Article 226 of the Constitution of India.

11. It has further been contended by Mr. Mangukiya that though it has been stated by the authority that the petitioner No.1 has given written reply, as reflecting from page 11 of the impugned order, but in reality, petitioner No.1 has never submitted any reply and with a view to verify, has requested to furnish the copies of the documents attached to the application but no reply was given. However, first page of the written reply provided, at the bottom of it, it has been mentioned as 'Raju Karnar Mukeshbhai Bhoi'. In fact, Mukeshbhai Bhoi is husband of petitioner No.1 and has not produced any such reply on behalf of the petitioner No.1. Petitioner No.1 has not put any signature upon the said written reply and as such, according to Mr. Mangukiya, a serious mischief has been cropped in the said proceedings, which the authority ought to have

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examined and verified. It has further been alleged in the petition that the respondent No.2 has not passed any order independent of him, but it is under the dictates of respondent No.3 recorded an order on 25.5.2021 in Application No.12 of 2020 and that too without granting any opportunity to the petitioners and that has given rise to filing of earlier writ petition, i.e. Special Civil Application No.8536 of 2021, and then, after narrating the history about the said petition, a contention is raised that from very beginning, the order passed against the petitioners is in a predetermined manner and as such, cannot be said to be an independent exercise of the power and as such, the impugned order dated 31.7.2021 deserves to be quashed and set aside.

12. Learned advocate Mr. Mangukiya has mainly contended that for purpose of present election in controversy, Mr. C.R. Patil, State President, BJP has no authority or competence to issue whip and what has been produced on record is merely a simple piece of paper, which cannot be said to be a whip, and when Mr. Patil has no authority, has further no competence, to delegate his power upon the District President of BJP, as a result of that also, there is hardly any reason for the authority to come to a conclusion, hence it is nothing but an erroneous exercise of jurisdiction. According to Mr. Mangukia, merely recording of word 'WHIP' to be printed on the document by itself does not become a whip. The Whip on the contrary is to be issued by the political party, same is to be signed by Mr. Jayprakash P. Patel, District President, who is not a Bhartiya Janta Party himself, being a political party, neither Mr. C.R. Patil can be said to be a political party. Hence, even assuming without admitting that there was a whip, said whip can not take recognition in law. Hence, based upon it, no disqualification can taken place.

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13. Learned advocate Mr. Mangukiya has submitted that the political party is defined under the provisions of the Act and there is nothing placed on record to prove that Mr. C.R. Patil is the authority who can issue whip. Hence, in absence of any such material to that effect, there is no question of disqualifying the petitioners as defied the whip which can attract the provisions of the Disqualification Act. It has further been submitted that the record does not indicate anything about issuance of valid whip. Hence, in absence of any proof, the authority has acted at the dictates of somebody and which exercise of jurisdiction cannot be said to be just and proper.

14. Learned advocate Mr. Mangukiya by asserting against the authority who passed the impugned order has submitted that diametrically, different view is taken on the almost similar issue, that also clearly suggests that the decision making process is vitiated on account of malafides. In any case, the order impugned is a non-speaking order, no cogent reasons are supported with the conclusion in any form. Hence, the relief prayed for deserves to be granted in the interest of justice and as such, the petition be allowed. To justify his contentions, Mr. Mangukiya has referred to and rely upon the following decisions:-

(1) The decision delivered by the Coordinate Bench dated 31.8.2020 in Special Civil Application No.7910 of 2020; and

(2) The decision delivered on 19.4.2021 in a group of Letters Patent Appeals, headed by Letters Patent Appeal No.917 of 2020.

By relying upon the aforesaid decisions, Mr. Mangukiya has reiterated to grant the reliefs as prayed for in the petition.

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15. As against the aforesaid submissions, learned Government Pleader Mrs. Manisha Shah appearing on behalf of the State authority has submitted that the decision making process is absolutely in compliance of the principles of natural justice as well as on close scrutiny of the material, which has been produced before it and hence cannot be said to be perverse in any form and that being so, the extraordinary jurisdiction may not be exercised in favour of the petitioners. It has been vehemently contended that a detailed and exhaustive order has been passed by the Designated Authority and arrived at a conclusion on the basis of the undisputed facts and these undisputed facts are very much reflecting in the order at page 190 onwards and while arriving at a conclusion, even the propositions of law laid down in the decisions delivered by Hon'ble Apex Apex Court as well as by this Hon'ble Court have been kept in mind and as such, the decision making process which is to be examined by the Court, is clearly suggesting that the said process is in close conformity with the procedure established by law. The undisputed conduct of the petitioners is clear enough to suggest but there is no question of grant of any equitable relief to the petitioners and while coming to the conclusion, a critical analysis of the material on record is undertaken by the authority, including recording of minutes of meeting have also been perused. When that be so, no case is made out by the petitioners. Hence, the petition requires to be dismissed.

16. Learned Government Pleader Mrs. Manisha Shah has gone to the issue raised by learned advocate Mr. Mangukiya that the very same authority has taken a contradictory view in two different cases. But, close perusal of the said decision is clearly suggesting that the constitution of two political parties cannot be assumed to be same. Hence, when the facts are quite distinct, there is hardly any justification for learned advocate for the petitioners to put

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emphasis upon it and hence, requested to dismiss the petition.

17. In addition to the submissions made by learned Government Pleader Mrs. Manisha Shah, learned advocate Mr. C.B. Upadhyay has further submitted that the authority below has in detail examined the relevant records and arrived at a specific finding. Further, at the relevant point of time, the petitioners had never raised any such objection nor raised during the course of the meeting about the questionable whip and as such, at this stage of proceedings, the petitioners are not permitted to raise such kind of contentions which were never made the subject matter of examination. It has further been contended that the comparison which has been tried to be made by learned advocate is ill-founded in view of the fact that the constitution of the political parties, i.e. Bhartiya Janta Party and the Indian National Congress Party, are quite different in view of the hierarchy and the process while issuing whip. It has been contended that to maintain the political discipline amongst the members attached to the parties, Special Statute has been brought and if undisputed conduct of the petitioners to be viewed, as suggested by learned counsel appearing for the petitioners, it would be an attempt to tinker with the very object for which the Statute has been brought. The defenses which are tried to be raised at this stage are not supported by any material and further, there is no material to indicate that the petitioner has put signature on a blank paper. The defense which has been tried to be raised is in realm of the disputed questions of fact and hence such disputed version may not be undertaken to be examined in exercise of the extraordinary jurisdiction. Even from beginning, the petitioner has never raised any grievance with regard to non-service of the whip. What has been agitated is that for issuance of whip, there is no valid authority, but then again said by Mr. Upadhyay that Mr. C.R. Patil, the State President, BJP

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has authority to issue whip and in turn, the District President was authorized to issue and as such, by their own very conduct, which is not in dispute, reflecting from recording of the minutes, is suggestive of the fact that there is no valid defense raised by the petitioners. Hence, under the circumstance, the petition being devoid of merit, deserves to be dismissed.

18. To substantiate, learned advocate Mr. Upadhyay has drawn the attention of this Court to various documents attached to the petition compilation and then has referred to the decision in the case of Thakrshibhai Shavshibhai Rathod Vs. A.J. Shah Designated Officer reported in 2018 eGLR_HC 10006193 dated 3.8.2018, and by referring to the same, a contention is raised that if no objection is raised during the course of meeting itself, there is no question of allowing the petitioners to raise at a much belated stage. When that be the position, there is hardly any case made out by the petitioners to call for any interference. Hence, the petition be dismissed with costs.

19. With the aforesaid background of facts, which is projected before the Court, before taking any view in the present matter, following circumstances are not possible to be ignored by this Court:-

(1) First of all, it clearly transpires from the order in question, impugned in the petition, that the the authority has passed an order after granting more than adequate opportunities to the petitioners and has passed a detailed order by assigning reasons and after considering not only the contention of the petitioners but after considering the relevant proposition of law laid down by various decisions which are incorporated in the order itself and as such, it appears that the decision making process is in close

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conformity with the principles of natural justice and upon proper application of mind. There is hardly any circumstance which may warrant this Court to come to the conclusion that the order suffers from any perversity and as such, the order appears to be a well- reasoned order.

(2) From the records and the order, it appears that in a general election held by the Municipality in February 20218, some 28 councilors came to be elected. 11 of Bhartiya Janta Party, whereas 13 Councilors belonging to Indian National Congress and 1 from Rashtravadi Congress Party and 1 elected as independent. Smt. Brindaben Shukla who was elected as the President of the Municipality and who was belonging to Rashtravadi Congress Party, had joined Bhartiya Janta Party on 27.8.2020, which fact is not in dispute.

(3) Further, upon expiration of the tenure of the posts of President and the Vice President of 2 ½ years, general meeting was held for electing the President and the Vice President on 24.8.2020. In the said meeting for electing the President and the Vice President, State President, BJP Mr. C.R. Patil had instructed and authorized Mr. Jayprakash P. Patel, District President, BJP, Mahisagar to issue mandate on 23.8.2020 and letter of authority was issued to give mandate authorizing him. In the said mandate, in turn which was issued for the post of President, candidate Smt. Pritiben Soni was suggested as a candidate, whereas for the post of Vice President, one Kirtikumar R. Patel was conveyed as a candidate for the post and these instructions and mandates have been given to all the members who respectively signed the said whip and since Heenaben Mukeshbhai Bhoi who could not meet through WhatsApp at 8.24 hrs, through WhatsApp, the said whip was served. This fact is also quite clear from the record.

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(4) In addition to the above, though said Smt. Brindaben Shukla who had joined Bhartiya Janta Party on 27.8.2020, still filed nomination for the post of President quite contrary to the whip which has been issued by the BJP- a political party and this form for President which was filled in by her was supported by one Mr. Vinod Kalubhai Bhoi of Indian National Congress and supported by Heenaben, i.e. petitioner No.1, who belonged to BJP. So, in substance, so far as the post of President is concerned, petitioner No.1 Heenaben though belonged to Bhartiya Janta Party has supported Smt. Brindaben Shukla for the post of President quite in conflict with the whip which has been issued. This fact is also not in dispute.

(5) Similar is the case with respect to the post of Vice President and these petitioners have in substance acted quite contrary to the whip which has been issued by their political party, to which they were affiliated and bound to observe the mandate. Having clearly found by respondent No.2 authority that these petitioners have acted quite contrary to the interest of the political party to which they are belonging to and were elected from the symbol of such political party, the respondent No.2 authority has found that they have violated the provisions of the Act and the order appears to have been passed. So, this conduct which is not in dispute is considered by the authority by concluding that the petitioners have acted contrary to the mandate and instructions of the political party, the order came to be passed.

20. A perusal of the order further makes it clear that there is a categorical finding of the authority on critical examination of the record that the whip had been issued by the State President, BJP as a competent authority and who, in turn, authorized the District

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President to issue the whip, as can be seen from the specific conclusion on issue No.1, which has clearly analyzed the issue and the finding is given to that effect. As against this, except bald assertion about the lack of authority, nothing is produced to substantiate. So far as the issue No.2 is concerned, the authority has come to a positive conclusion that the District President Shri Jayprakash P. Patel, Mahisagar District has been authorized by way of an authority letter to issue the whip and the same has been communicated to the members. These petitioners are also served with the whip, for which the signature is also reflecting and so far as petitioner No.1- Heenaben Mukeshbhai Bhoi is concerned, on WhatsApp, same was served and screenshot was very much part of the record and as such, the stand taken by the petitioners has been clearly analyzed by the authority while passing the order impugned and as such, when these facts are quite apparent from the record, there is hardly any reason to disturb the findings in absence of any distinguishable material. A fact is not in dispute that the forms have been filled in, in presence of the members/ councilors. The same are not in consonance with the mandate which has been issued and on internal page 36 of the impugned order, from last paragraph, it has been clearly concluded how Smt. Brindaben Nilanjkumar Shukla stood in the election contrary to the mandate and it is also clearly observed that these petitioners have voted in conflict with the whip which has been issued and as such, there is a clear violation and defiance shown by the petitioners which has led the authority to pass the impugned order.

21. Now, on the basis of this material, even it does not transpire that with regard to the issue about lack of authority related to the whip, any grievance is voiced out by the petitioners during the course of meeting as well as in proceedings and on the contrary, it appears that they acted despite knowledge about the same. Hence,

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the Court see no reasons to dislodge the findings arrived at by the authority below.

22. So far as the contention with regard to the whip being a simple piece of paper is concerned, the Court is not impressed by the said submission and would not like to dwell much on the said disputed version, more particularly when the authority on the basis of the same material arrived at the conclusion and as said earlier, no objection was raised at the relevant point of time by the petitioners, which would not entitle the petitioners to agitate at a much belated stage. The very undisputed conduct on the part of the petitioners is sufficient enough to justify the order passed by the authority. Accordingly, no case is made out by the petitioners.

23. Now, in light of the aforesaid circumstances, which are prevailing on record, learned advocate for the petitioners has tried to rely upon few decisions to substantiate his contentions. But, in the considered opinion of this Court, from the aforementioned factual details which are quite visible, apparently there is hardly any reason to apply the ratio as a straitjacket formula in the background of the present case on hand. However, the Court would consider the same at an appropriate stage in the present order.

24. So far as the issue about taking a different view on almost similar issue is concerned, learned advocate Mr. Mangukiya has made an attempt to persuade the Court by producing the copy of the order passed by the authority in Dispute Application No.3 of 2019. But, in that case, while going through internal page 44 of the said decision dated 18.3.2020, it appears that the same was related to a different political party, wherein the process of authorizing an authority to issue whip is not apparently shown as similar to the controversy with regard to the present political party, i.e. Bhartiya

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Janta Party. There is no material produced by the petitioners to indicate that the same process also exists in the present political party, i.e. Bhartiya Janta Party. Therefore, in absence of any material being produced by the petitioners, the judgment delivered by the authority in Dispute Application No.3 of 2019 is not of any assistance, as a result of which, the said contention raised is hardly of any assistance to the petitioners.

25. Learned advocate Mr. Mangukiya has tried to rely upon two decisions, mainly in addition to the aforesaid decision of the Dispute Application, as stated above, and by citing the decision dated 31.8.2020 passed in Special Civil Application No.7910 of 2020, has tried to contend that the order passed by the authority is not just and proper. But, a close perusal of this judgment delivered by the Coordinate Bench of this Court is also again related to a different political party, i.e. INC party, in which, the resolution of the party's executives was not placed on record to justify the delegated power to issue whip.

26. Further, in the said case, no documentary evidence was led with regard to the competence of the authority to issue whip. Hence, close perusal of the circumstances which are referred to in para 10, 13.1, 14, 15 and 16 are such in which it is not possible for this Court to accept the submissions made by learned advocate for the petitioners. On the contrary, in the said decision, it was found that the author of the whip was very much a President of the District Committee which is also authorized to issue whip as per the communication relied on and referred to. Here, learned advocate Mr. Mangukiya for the petitioners has not further been able to show from any material that process of issuance of whip in this political party, i.e. BJP, is exactly similar to that of INC Party. Hence, it is difficult for this Court to allow the petitioners to base

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upon the said judgment.

27. So far as another decision which is delivered by the Division Bench of this Court on 19.4.2021 in a group of Letters Patent Appeals, headed by Letters Patent Appeal No.917 of 2020, in which on mere perusal of few observations made in para 14 and 22, the Court is of the opinion that there is hardly any justification of the petitioners to get any assistance out of said order of the Division bench. Para 22, since relevant to the controversy, which relates to a different political party, is quoted hereunder:-

22. In the case of Diptiben Vinubhai Patel (supra), this Court had given the finding to the effect that the State President did not have any power to issue whip because in the said matter the whip was issued by the State President of Indian National Congress Party, which operates through a completely different constitution and in the said party the State President is merely a representative of the State Committee and the President has to act in accordance with the resolutions passed by the State Committee. In the said case there was no such resolution passed by the State Committee authorizing the State President as indicated in their constitution and therefore under those circumstances such observations were made by the learned single Judge in the case of Diptiben Vinubhai Patel (supra) and therefore the same was not applicable to the present case on facts.

28. The aforesaid observations are also sufficient enough to indicate that in absence of any material to indicate any similarity of the constitution, the Court is not in a position to substitute the findings which have been arrived at by the authority below.

29. As against this, learned advocate Mr. C.B. Upadhyay appearing on behalf of the respondent No.1 has rightly emphasized the decision delivered by the Division Bench of this Court in the case of Thakrshibhai Shavshibhai Rathod (Supra) , in which, few observations on the contrary are sufficient enough to indicate that the plea raised by petitioners deserves no consideration. Relevant

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observations contained in para 9.3, 9.4 and 9.5 are quoted hereunder:-

[9.3] Now so far as the submission on behalf of the petitioners that the whip was not issued by the authorized person of the party, and therefore, the same was not binding is concerned, at the outset, it is required to be noted that when the whip / mandate was read over in the meeting, no such objection was raised by the petitioners.

[9.4] Now so far as the submission on behalf of the petitioners and on behalf of respondent no. 2 - original applicant that as now respondent no.2 - original applicant - complainant proposes to withdraw and /or withdraws his complaint / original application the impugned order be quashed and set aside and /or the matter may be remanded to the designated Officer as requested by the learned Advocate appearing on behalf of respondent no.2 is concerned, at the outset, it is required to be noted that after the impugned order is passed on the original application /complaint made by respondent no.2 and the petitioners are declared disqualified, thereafter it will not be open for respondent no.2 to withdraw the complaint /original application, and therefore, on the ground that now subsequently and after the impugned is order passed by the designated Officer disqualifying the petitioner under Section 6 of the Act, 1986, the impugned order is not required to be set aside on the ground that now respondent no.2 - original complainant /applicant proposes and /or withdraws the original application. At this stage, the decision of the Hon'ble Supreme Court in the case of Dr. Mahachandra Prasad Singh (Supra) is required to be referred to. In the said decision, Hon'ble Supreme Court has specifically observed and held that in a proceeding of disqualification on the ground of defection, there is no lis between the person moving the petition and the member of the House, who is alleged to have incurred a disqualification. It is submitted that it is no adversarial kind of litigation where he may be required to lead evidence. It is further observed that even if he withdraws the petition it will make no difference as a duty is cast upon the Chairman or the Speaker to carryout the mandate of the constitutional provision viz the Tenth Schedule. Under the circumstances on the ground that now respondent no.2 - original complainant - original applicant proposes to withdraw and / or withdraws the original application /complaint, the impugned order passed by the designated Officer disqualifying the petitioners, Members of the Panchayat, under Section 6 of he Act, 1986 is not required to be set aside.

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[9.5] Now so far as the submission made by Shri Champaneri, learned advocate appearing on behalf of respondent no. 2- original complainant that there is procedural lapse on the part of the designated Officer inasmuch as the procedure required under Rule 7 of the Rules, 1987 to serve a copy of the petition upon the political party, who has issued the whip has not been served, and therefore, the impugned order be quashed and set aside is concerned, at the outset, it is required to be noted that how the respondent no. 2 - original complainant whose application is allowed can make such a grievance. The affected party, if any, namely the concerned party has not made any grievance. The person in whose favour an order is passed on the original application submitted by him cannot submit that though he has succeeded, the order in his favour be quashed and set aside on the ground of procedural lapse, if any. It is required to be noted that so far as the petitioners are concerned, they have never raised such a contention.

30. In view of the aforesaid discussion and in view of the peculiar background of the present facts on hand, when the authority has come to a conclusion upon close perusal of the material on record, the Court see no reason to exercise the extraordinary jurisdiction. On the contrary, disturbing the findings has an impact of frustrating the very object on which the Defection Act is enacted. At this stage, the Court would like to indicate the scope of Articles 226 and 227 of the Constitution of India from the decision delivered by the Apex Court in the case of Sanjay Kumar Jha Vs. Prakash Chandra Chaudhary and others, reported in (2019)2 SCC 499. The relevant portion contained in para 16 and 18, the Court deems it proper to reproduced hereunder:-

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

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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.

31. Hon'ble Apex Court in the case of Afcons Infrastructure Limited Vs. Nagpur Metro Rail Corporation Limited and Another reported in (2016)16 SCC 818, has held and observed in para 12 and 13 as under:-

12. In Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay[3] it was held that the constitutional Courts are concerned with the decision making process. Tata Cellular v. Union of India[4] went a step further and held that a decision if challenged (the decision having been arrived at through a valid process), the constitutional Courts can interfere if the decision is perverse. However, the constitutional Courts are expected to exercise restraint in interfering with the administrative decision and ought not to substitute its view for that of the administrative authority. This was confirmed in Jagdish Mandal v. State of Orissa[5] as mentioned in Central Coalfields.

13. In other words, a mere disagreement with the decision making process or the decision of the administrative authority is no reason for a constitutional Court to interfere. The threshold of mala fides, intention to favour someone or arbitrariness, irrationality or perversity must be met before the constitutional Court interferes with the decision making process or the decision.

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32. From the aforesaid discussion, since no case is made out to call for any interference, the petition stands DISMISSED with no order as to costs. Notice discharged. Interim relief, if any, stands vacated forthwith.

Sd/-

(ASHUTOSH J. SHASTRI, J) OMKAR