The dispute application no.7 of 2020 filed by respondent no.2 before designated authority. Thereafter the designated authority order dated 28.10.2020 disqualified the petitioner and therefore being aggrieved of such order, petitioner has filed the present petition.
The election of Tharar Nagarpalika was held in 2018. Subsequently, the election of President and Vice-President of Nagarpalika for the second term was held on 25.08.20 in which a total of 28 seats were confirmed. Out of 28 seats, 12 members from Bhartiya Janta Party, 8 members from Indian National Congress and 8 from independent members were elected. In the meeting, the whip was issued by President (BJP) of Banaskantha District which was authorised by State President of BJP. A Three-line whip was issued on 25.08.20 and also read during the meeting. The Petitioners, who was elected symbol of BJP were aware of whip issued by the President but they did not cast their vote as per whip issued by President. Therefore, petitioners are required to be disqualified under the provision of the Gujarat provision for disqualification of Members of Local Authorities for Defection Act,1986 (refers as ‘Act’) in the case of Kasambhai Imambhai Parmar, member Tharar Nagarpalika v. Designed Officer, Urban Development and Urban Housing Department, SCA No.14750 of 2020.
The counsel submitted before the Court that on the date of election i.e. 25.08.20, it was alleged to have issued a three-line whip in which names of candidate of President and Vice-President contesting as BJP candidate was not mentioned. Moreover, a legal whip was not issued by the concerned President and therefore Petitioners have not violated prescribed whip.
The counsel submitted that in an earlier case with a similar matter, it was held that the absence of valid and legal whip, members cannot be disqualified. Further, there is a need for staying impugned order as the concerned authority will declare election which would fill the seat as allegedly been given to the Petitioner and thereby Petitioner will become infructuous.
The counsel submitted before the Court that the Petitioner was fully aware of the whip issued by the President as also read during the meeting held on 25.08.20. The whip was served well and they were aware of the three-line whip issued by the President and thereby, the designated authority had rightly disqualified Petitioners under the provisions of the Act. Therefore, the present petition deserves to be dismissed.
The Court took the reference of the case of Zalak Parthbhai Khambholja v. Dilip Raval, Competent Authority (SCA No.11319 of 2020) observed that Section 3(1)(b) of the Act stating issuing of direction by the political party to vote or abstain from voting in any meeting of Municipal corporation, Panchayat or municipality against the member to which he belongs must be issued by an authorised political party or any person authorised by it. In this case, the direction was issued by District General Secretary of BJP aa authorised by State President cannot qualify the requirement of direction under Rule 3 of the Rules. It was held that political party at the national level cannot be issued direction by State President or District General Secretary without authorisation by political party. If constitution, rules and regulations of National level political party authorised any person or state level Authority to issue such directions then it required to be furnished to the designated authority as mandated under ‘the Rules’. Further, the absence of which cannot entitle direction to be valid or legal under the eyes of the law.
In the case of Katara Bhaveshbhai Babubhai v. Designated Authority, it was held that burden of proof lied upon person alleging disqualification to prove that there exist legal and valid direction issued under Section 3(1)(b) of the Act.
Further, in the case of Sadashiv H.Patil v. Vithal D.Teke, it was held that in absence of proof showing that political party has authorised person or authority to issue whip, violation of whip cannot justify disqualification under Section 3(1)(b) of the Act.
The Court held that neither State President nor District General Secretary can issue a direction to any member of a political party without authorisation by a political party. Moreover, documents produced before designated authority proves that there exists no legal or valid direction resulting in the disqualification of Petitioners.
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