S.R.BRAHMBHATT,J. - (1.) The petitioners, who were disqualified to be continued as member of Mendarda Taluka Panchayat by the Designated Authority under the provisions of the Gujarat Provision for Disqualification of Members of Local Authorities for Defection Act, 1986 vide order dated 7/4/2018, have approached this Court by way of this petition challenging issuance of Notification dated 17/9/2018 declaring the Election Programme for conducting bi-election on vacancies which were considered to have arisen on account of said disqualification of the petitioners under the order dated 7/4/2018. The order of the Designated Authority under the dated 7/4/2018 disqualifying the present petitioners was subject matter of challenge before this Court by way of Special Civil Application No.6131 of 2018 in which this Court passed Judgement and Order dated 20/9/2018, whereby, order dated 7/4/2018 passed by the Designated Authority in Application No.1-A/2017 was quashed and set aside and consequently, respondent No.1 therein - authority was directed to decide afresh the very application presented by the respondent No.2 therein, after granting fresh opportunities to the respective parties. It is appropriate to set out the said directions passed by this Court in the Judgement and Order dated 20/9/2018 in the proceedings of Special Civil Application No.6131 of 2018 with Civil Application No.1 of 2018, as under:- "13. The issues which have been raised are of vital importance for the affairs of the Taluka Panchayat, the authority is under an obligation to deal with the same in the manner in which it is required to be dealt with. The authority, while giving a fresh look, is expected to deal with the decisions which have been referred to above by the respective parties and after discussing the same, appropriate and just decision may be taken so as to see that object of the Act and the Rules be preserved. Resultantly, the petition deserves to be partly allowed by issuing consequential directions : (1) The impugned order dated 7.4.2018 passed by the Designated Authority in Application No.1A/2017 is quashed and set aside and consequently, the respondent No.1 - authority is directed to decide afresh the very same application presented by respondent No.2, after granting fresh opportunities to the respective parties and after dealing with each contention and authorities cited. (2) In view of the time gap which has lapsed, it is desirable and expected from respondent No.1 that such process for reconsideration be undertaken within a period of four weeks from the date of receipt of the order, after complying the principles of natural justice but, later than that. (3) Since the present proceedings are remanded back to the authority concerned, the Court has expressed any opinion on merits of the issues which have been raised and left it open for the respondent No.1 authority to take an independent decision on merits in accordance with law and shall pass a reasoned order. (4) It is clarified that this setting aside of the order would in any way consider by the petitioners of restoring their membership of Taluka Panchayat till fresh decision and any act of petitioners if taken, would be strictly subject to the outcome of the decision to be taken by the respondent No.1 - authority."
(2.) The aforesaid order, thus, render the disqualification in effective sofaras the vacancy aspect of the seats are concerned. We are mindful of the observation of this Court as recorded in sub-para (4) of para 13 in which this Court has categorically said that quashment of the order dated 7/4/2018 disqualifying the petitioners would be considered by the petitioners as restoring their Membership of Taluka Panchayat till fresh decision and any act of petitioners, if taken, would be strictly subject to the outcome of the decision to be taken by the respondent No.1 - authority." The aforesaid observation also, in our considered prima facie opinion, would render the seats vacant so as to permit the concerned authority to hold bi-parte election on those seats, else the same would be rendered infructuous.
(3.) The Hon'ble Supreme Court in the case of Election Commission of India v. Bajrang Bahadur Singh and others, reported in (2015) 12 SCC 570 in paragraph Nos. 21 to 23 has observed and held as under:- "21. The scope of authority of the Governor acting under Article 192 first fell for consideration of this Court in Saka Ventaka Rao (Election Commission of India v. Saka Venkata Rao, reported in AIR 1953 SC 210) . By a unanimous decision of a Constitution Bench of this Court, it was held : (AIR page 215, para 16):- "16. For the reasons indicated we agree with the learned Jude below in holding that Article 190(3) and 192(1) are applicable only to disqualifications to which a Member becomes subject after he is elected as such, and that neither the Governor nor the Commission has jurisdiction to enquire into the respondent's disqualification which arose long before his election." This Court took note of the fact that a person can incur any one of the disqualifications contemplated in Article 191 either before the election or after the election - elegantly classified by the then Attorney General M.C. Setalvad as "pre-existing disqualifications" and "supervening disqualifications". Dealing with the scope of Article 192, this Court concluded that the authority of the Governor to examine the question of disqualification extended only to the second of the above mentioned two categories of disqualification i.e. the supervening disqualifications acquired subsequent to the election of a person to the legislature. 22. In the case on hand, the disqualification, if any, is only supervening disqualification. As we already noticed, that all the relevant facts on the basis of which the petitioner is declared disqualified are facts which occurred subsequent to the election of the petitioner. Therefore, the Governor necessarily has the authority to examine the question. 23. The issue before us is not really whether the Governor has necessary authority in law to examine the question of disqualification of the petitioner herein. The question whether culprit contracts render the petitioner disqualification from continuing to be a Member of the Legislative Assembly.";