Gujarat High Court
Daxaben Miteshkumar Nathani vs State Of Gujarat on 6 February, 2023
Bench: Ashutosh Shastri
C/LPA/1132/2022 JUDGMENT DATED: 06/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1132 of 2022
In
R/SPECIAL CIVIL APPLICATION NO. 1373 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In
R/LETTERS PATENT APPEAL NO. 1132 of 2022
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DAXABEN MITESHKUMAR NATHANI
Versus
STATE OF GUJARAT
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Appearance:
MR NK MAJMUDAR(430) for the Appellant(s) No. 1
MR K.M. ANTANI, ASSISTANT GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
MR C.B. UPADHYAYA, ADVOCATE WITH
MR KIRTAN H MISTRY(10012) for the Respondent(s) No. 3
RULE SERVED for the Respondent(s) No. 2,4
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CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
ARAVIND KUMAR
and
HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
Date : 06/02/2023
ORAL JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)
1. The order dated 29.3.2022 passed in Special Civil
Application No.1373 of 2021 is under challenge in this intra-
court appeal.
2. We have heard the arguments of Mr. N.K. Majmudar,
C/LPA/1132/2022 JUDGMENT DATED: 06/02/2023
learned advocate appearing for the appellant, Mr. K.M. Antani,
learned AGP for respondent No.1 and Mr. C.B. Upadhyaya,
learned advocate appearing for Mr. Kirtan H. Mistry for
respondent No.3. Respondent Nos.2 and 4 are served and
unrepresented.
3. The issue in this appeal relates to the decision of the
designated authority under the provisions of the Gujarat
Provision for Disqualification of Members of Local Authorities
for Defection Act, 1986 (hereinafter referred to as 'Anti
Defection Act') rendered on 15.1.2021 by respondent No.3
authority whereunder appellant herein (hereinafter referred to
as 'writ applicant') has been disqualified as member of
Devgadh Baria Municipality.
4. Facts in brief which has led to the filing of this appeal can
be crystallised as under:
BACKGROUND OF THE CASE:
5. During December 2017, election of Devgadh Baria
Municipality was declared and came to be held on 19.2.2018
for filling up 24 posts of the councillors. Writ applicant
C/LPA/1132/2022 JUDGMENT DATED: 06/02/2023
participated in the said election by filing nomination and
contested the election on the symbol of Indian National
Congress (hereinafter referred to as 'INC') and was declared as
elected as a member of the municipality from Ward No.4.
Accordingly, the gazette notification came to be issued on
19.2.2018.
6. The election for the post of President and Vice President of
the said municipality was held on 6.6.2018 for the period upto
25.8.2020. A whip came to be issued to all the elected members
of INC to vote in favour of the official candidate namely the writ
applicant who had contested for the post. On account of said
mandate / whip having been violated, the Gujarat Pradesh
Congress Samiti suspended the writ applicant from the party
(INC) for a period of 6 years on the ground that she had
breached the mandate / whip issued by the party and had voted
against instructions of the political party (INC) to which the writ
applicants belonged to.
7. Respondent No.3 herein filed an application to disqualify
the writ applicant and other 6 members on the ground that they
C/LPA/1132/2022 JUDGMENT DATED: 06/02/2023
belonged to INC party and had not voted as per the instructions
of the President of INC. Said application came to be rejected by
the designated authority by order dated 20.6.2019. This order is
said to have attained finality and no contra-material has been
placed in this regard.
8. The Collector, Dahod issued a meeting notice fixing the
agenda for election of candidates for the post of President and
Vice President of Devgadh Baria Municipality for the second
term namely on completion of first term in which the writ
applicant had been elected as President by issuance of a
meeting notice dated 18.8.2020.
9. In the meanwhile, it is stated that writ applicant herein
had joined Bharatiya Janata Party (hereinafter referred to as
'BJP') by submitting an application Form No.0053361 and was
admitted to the said party according to the list of members
announced by the President of City BJP, the name of writ
applicant was entered.
10. In response to the meeting notice dated 18.8.2020, writ
applicant filed her nomination to contest for the post of
C/LPA/1132/2022 JUDGMENT DATED: 06/02/2023
President of Devgadh Baria Municipality by filing her
nomination as a candidate of INC party. A whip or mandate
came to be issued by BJP on 25.8.2020 to its members including
writ applicant to vote in favour of the official nominee of BJP. In
the election held to the posts of President and Vice President for
which the writ applicant had contested for the post of President
against Smt. Charmiben Neel Soni resulted in both the
candidates securing equal votes viz. 12 votes each. On account
of tie between two candidates, the election officer viz. Chief
Officer drew chits (lots) as per Rule 9 of the Gujarat
Municipalities (President and Vice President) Election Rules,
1964 in view of both candidates agreed for the same. In this
process, writ applicant was declared elected as President of the
municipality.
11. An application came to be filed by respondent No.3 against
writ applicant for disqualifying her as member of the
municipality under Section 3 of the Anti Defection Act
contending, inter alia, that after having been elected from INC
party had filed the nomination from the said party and her name
was seconded by one of the members / councillors of BJP which
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was in contravention of law; and, in the year 2019, writ
applicant had voluntarily given up the membership of the party
of her party - INC and had joined BJP and as such she had
earned the disqualification as prescribed under Section 3(1)(a)
of the Anti Defection Act; also contending that writ applicant
had sought supports from the councillors of other political party
for the purpose of being elected as a President of the
municipality and this would amount to horse trading which is
against basic principles of the constitution and more
particularly 10th Schedule. Hence, on this amongst other
grounds, respondent No.3 sought for writ applicant being
declared as having earned disqualification under Section 3(1)(a)
of the Anti Defection Act. On being notified, writ applicant
appeared before the designated authority, filed her objection,
denying the averments made, resulting in the following points
being formulated:
(i) Whether the order was passed by the authorised
officer to the concerned party member?
(ii) Whether in spite of service of whip upon the
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members, the members have voted against the whip
(order) or abstain themselves from voting or voted
against the instructions?
(iii) Whether the opponents have voluntarily left their
original State party?
12. After detailed discussion, it came to be held that writ
applicant despite being elected as member of Devgadh Baria
Municipality on the symbol of INC had got herself nominated for
the post of President in the election held on 25.8.2020 as
candidate from INC and voted in favour of the candidate of BJP
and thereby had breached the provisions of Section 3(1)(a) of
the Anti Defection Act and after having voluntarily left her
original party, she had violated the mandate of BJP to which
party she had joined and her conduct proved that she
voluntarily left her original party and as such she was declared
to be disqualified as member of Devgadh Baria Municipality.
Being aggrieved by the said order, writ applicant filed Special
Civil Application No.1373 of 2021. The learned Single Judge,
after considering rival contentions, held that writ applicant was
C/LPA/1132/2022 JUDGMENT DATED: 06/02/2023
elected as councillor from Ward No.4 of general women of
Devgadh Baria Municipality under the symbol of INC in the
election held on 25.8.2020 for the post of President and Vice
President of said municipality, Mr. Shankarbhai Amaliyar,
District President, BJP, Dahod had issued whip in the name of
writ applicant as presidential candidate and yet in the said
election held on 25.8.2020, the name of the writ applicant was
proposed / recommended by Farooqbhai Musabhai Jethra of INC
as evident from the candidature form and it was seconded by
Mr. Dharmeshkumar Bharatbhai Kalal of BJP which was also
evident from the candidature form. However, on the ground said
mandate did not have the date and as such it was held to be a
not valid whip. It also came to be held that in the minutes of
meeting recorded on 25.8.2020, the undated whip or mandate
had been read over which was issued in favour of the writ
applicant and she had cast her vote in favour of BJP candidates
and though she was elected in the symbol of INC, she had cast
her vote in favour of BJP candidates on 25.8.2020. It was further
held that writ applicant had given up voluntarily membership of
the party on whose symbol she had contested and won the
C/LPA/1132/2022 JUDGMENT DATED: 06/02/2023
election and as such refused to interfere with the order of the
designated authority. Hence, this appeal.
13. It is the contention of Mr. N.K. Majmudar, learned
advocate appearing for the writ applicant that order passed by
respondent No.1 as affirmed by the learned Single Judge is
erroneous as there are self-contradicting reasons given by
respondent No.1 and, therefore, order passed by respondent
No.1 ought to have been quashed and set aside by learned
Single Judge. He would contend that election held on 25.8.2020
for the post of President of municipality was never based on any
mandate of any of the political parties and it was never
contacted on any whip / mandate given by any political party
and, therefore, impugned order of the learned Single Judge is
liable to be quashed. The so-called mandate given by a political
party to writ applicant and relied upon by respondent No.3
having not been accepted by the learned Single Judge by
arriving at a conclusion that it was not proved, ought to have
allowed the petition and set aside the order passed by
respondent No.1. He would also submit that non-consideration
of this vital aspect has resulted in great injustice being caused
C/LPA/1132/2022 JUDGMENT DATED: 06/02/2023
to the writ applicant. He would contend that as per the details
of the election held on 25.8.2020, the names of members and
concerned candidates have been mentioned which would make
it clear that members belonging to one of the political parties
had cast vote in favour of the candidate of another political
party and vice-versa and thus, election was never based on
party politics and it was not on the basis of intervention of any
political party and obviously, there was no mandate / whip
which had played any role in respect of any election. Therefore,
impugned order is liable to be quashed. For the reasons and
grounds urged in the petition, he has sought for appeal being
allowed.
14. Per contra, learned advocates appearing for respondent
No.3 and learned AGP would support the impugned order.
15. Having heard the learned advocates appearing for the
parties and on perusal of the case papers, undisputed facts
which would emerge therefrom are: elections were held to
Devgadh Baria Municipal on 19.2.2018 for electing 24
councillors and writ applicant came to be elected from Ward
C/LPA/1132/2022 JUDGMENT DATED: 06/02/2023
No.4 as a councillor, undisputedly on symbol of INC. In the
election held for the post of President and Vice President on
6.6.2018, writ applicant contested to the post of President and
undisputedly INC issued a whip on 6.6.2018 to vote in favour of
its official candidate and defying the said whip, writ applicant
voted in favour of the candidates belonging to BJP. It is for this
precious reason, a notice was issued to the writ applicant as to
why he should not be disqualified or suspended from the
Congress Party. The Gujarat Pradesh Congress Samiti by
communication dated 7.7.2018 suspended the writ applicant
from party for 6 years. The said period of suspension would
operate till 6.7.2024. When this was the factual scenario, writ
applicant is said to have joined BJP and to substantiate this
claim before the learned Single Judge, it was stated in the
affidavit-in-rejoinder filed in Dispute No.15 of 2020 that writ
applicant had joined BJP on 15.10.2019 and by filling up the
membership Form No.0053361, wherein her membership had
been registered. This fact was reiterated in the affidavit-in-reply
filed before the learned Single Judge by respondent No.3.
Though writ applicant filed rejoinder on 15.3.2021, she has not
C/LPA/1132/2022 JUDGMENT DATED: 06/02/2023
disputed the fact over her suspension by INC for a period of 6
years. Thus, it would emerge that writ applicant having been
elected from INC had contested the election and after having
joined BJP in the year 2019, after being elected as President of
the municipality in the election held on 6.6.2018 and continued
as President upto 25.8.2020. Without being re-admitted to INC,
she could not have contested the election as the candidate from
INC and that too, her candidature when seconded by the
member of BJP and proposed by a member of INC. Hence, the
authority has rightly arrived at a conclusion that writ applicant
had earned disqualification as contemplated under Section 3(1)
(a) of the Anti Defection Act as discussed in the impugned order
in detail which has been affirmed by the learned Single Judge
and rightly so which would not call for interference at the hands
of this Court.
16. Hence, we proceed to pass following
JUDGMENT
(i) Letters Patent Appeal No.1132 of 2022 is hereby
dismissed and order dated 29.3.2022 passed in Special
C/LPA/1132/2022 JUDGMENT DATED: 06/02/2023
Civil Application No.1373 of 2021 stands affirmed;
(ii) No order as to costs;
(iii) Pending application stands consigned to records.
(ARAVIND KUMAR,CJ)
(ASHUTOSH SHASTRI, J)
Bharat
