Bombay High Court
(Sou) Narayandevi Tulshiram Pallod And ... vs Dattatraya Maruti Bawalekar And Ors. on 16 April, 1993
Equivalent citations: (1993)95BOMLR129
JUDGMENT S.W. Puranik, J.
1. Applicants in Civil Application No. 1997 of 1993 seek leave to be added as respondents to the writ petition which was already disposed of, whereas the same applicants by Civil Application No. 1996 of 1993 seek review of the order of this Court, dated 7th April, 1993.
2. Briefly stated, the original petitioner in Writ Petition No. 1417 of 1993 is the President of Mahableshwar Nagar Vikas Sanghatana and also the President of the Mahableshwar Municipal Council. According to the original petitioner some of the members of the Council were elected as members of the aghadi. Subsequently, they resigned and the original petitioner had initiated proceedings before the Collector under Section 7 of the Maharashtra Local Authority Members' Disqualification Act, 1966, hereinafter referred to as the "Disqualification Act" and the said proceedings were pending. The very same members who had resigned had also signed a resolution expressing no confidence in the President-original petitioner along with three other independent members and had requested the Collector to requisition a meeting to discuss the no-confidence motion.
3. On the facts as stated by the petitioner's Counsel and on hearing the learned Government Pleader, the Division Bench to which one of us was a party disposed of the petition with direction to decide the reference under the Disqualification Act and until then not to convene a meeting for discussion of the no-confidence motion.
4. Civil Application No. 1997 of 1993 is filed by the said four persons who are alleged to have become disqualified. According to them the Disqualification Act does not apply to their case inasmuch as they were not elected on the basis of an aghadi or a sanghatana. They claim to have been elected as independent candidates and it is subsequently one year later that the aghadi was formed and was accordingly intimated to the Collector. It is also contended that even assuming that Disqualification Act applies, the disqualification proceedings by itself will not disentitle them from participating in the proceedings or from holding their office and as such the process of requisitioning a meeting to discuss the no-confidence motion should not have been stayed as has- been done by the earlier order, dated 7th April, 1993. It is also contended that out of seven members of the aghadi since four of them have resigned i.e. more than 50% it does not attract the provisions of the Disqualification Act.
5. Having heard M. V. Paranjpe, Counsel for the applicants and Anturkar, Counsel for the original petitioner, non-applicant in these proceedings we feel that in the interest of justice the leave to add the applicants as party respondents be granted. Civil Application No. 1997 of 1993 is accordingly allowed.
6. As regards the contention of Paranjpe that the Disqualification Act is not applicable on several facts and circumstances, we need not go into the various factual aspects as to whether the members contested as independents or as members of the aghadi and as to whether their verified statements were recorded by the Collector to the effect that they did contest as members of the aghadi in the first instance. Leaving aside these disputed questions, we still find that there is substance in the contention for review inasmuch as the proceedings for disqualification by itself would not tantamount to disentitling the applicants from participating as Councillors. The reasons for the same are as follows : -
7. The scheme of the Disqualification Act appears to be to provide for -disqualification of members of certain authorities on ground of defection and for matters incidental thereto. This compact legislation comprising of 11, sections refers to the definition of "aghadi" or "front" as a group of persons who have formed themselves into party for the purpose of setting up candidates for election to a local authority. This necessarily means that the aghadi must be in existence prior to the date of election when the candidates set up themselves as members of the aghadi or front. Section 3 of the said Act refers to disqualification on ground of defection if a member of such political party or aghadi or front voluntarily gives up his membership of the said political party or aghadi or front or votes or abstains front voting in any meeting and acts against the interest of the said political party or aghadi or front, such member incurs the disqualification. Section 4 however states that in the case of a split, disqualification on the ground of defection shall not apply. In other words, as per various clauses of the section in a Council where the total strength is less than 20, then the group or aghadi if it is divided by more than 50% of its members, shall constitute a split and will not attract the defection law.
8. Section 7 is a material section which refers to the decision on question as to disqualification on ground of defection. It specifies that in a Municipal Council the Collector shall be the authority to decide the question of disqualification on the ground of defection. Section' 8 bars the jurisdiction of Civil Courts to decide these issues. Section 9 refers to the rule-making power of the State Government in this regard. Sub-clause (d) of Section 9 gives specific authority to the State Government for framing rules of procedure for deciding any question referred to in Section 7 including the procedure of any inquiry etc. Section 10 gives an overriding effect to this Act but qualifies that this Act shall be in addition to laws relating to Municipal Corporation, Municipal Council or other local authority and shall not be in derogation of the provisions of any law save as expressly provided. Lastly by Section 11 several enactments have been suitably amended and the Maharashtra Municipalities Act has been amended at Item 4 of the Schedule by adding Sub-section (1-A) to Section 16 of the Maharashtra Municipalities Act where under it is declared that a person who at any time during the term of his office is disqualified under the Disqualification Act for being a councillor shall cease to hold office as such councillor. Rules under the said Act have been framed. Rule 6 thereof refers to the petitions made to the concerned authority (Collector in the case of a Municipal Council) for considering the question of disqualification. Sub-rule (3) thereof gives requirements of such petitions. Rule 7 gives the procedure as to the manner in which the Collector or the authority shall deal with such petitions for considering the question of disqualification. Rule 8 prescribes the manner in which the decision shall be given. All orders under this rule have to be passed in writing by the Collector or the Commissioner as the case may be whereby he may either dismiss the petition or [sub-clause (b)] declare that the councillor... has become subject to disqualification under the Act. Sub-rule (2) thereof prescribes that every decision declaring a councillor to have become subject to disqualification shall be reported to the Municipal Corporation, Municipal Council or the other local authority as the case may be. Sub-rule (3) provides that every such decision shall be notified in the Maharashtra Government Gazette.
9. Section 16(1) of the Maharashtra Municipalities Act states various categories of persons who shall not be qualified to become a Councillor whether -by election, co-option or nomination. By an amendment introduced by Maharashtra Act No. XX of 1987 i.e. the Disqualification Act Section 16(1-A) has been added as an independent section which says that a person who at any time "during the term of his office" is disqualified under the Disqualification Act for being a Councillor shall cease to hold office as such Councillor. Section 44 of the Maharashtra Municipalities Act in terms mentions that a Councillor who shall be disqualified to hold office as such at any time during his office subject to clauses (a) to (d) thereof shall be disabled subject to the provisions of Sub-section (3) from continuing to be a Councillor and his office shall become vacant.
10. As already stated the Disqualification Act is a supplementary legislation to local Acts relating to various local bodies such as Municipal Corporations, Municipal Councils, Zilla Parishads and Panchayat Samities. Any person who holds office by virtue of his election may be disqualified under the Disqualification Act and upon a decision given by the Collector under Rule 8 of the Rules framed thereunder, the Principal Act i.e. the Maharashtra Municipalities Act will come into play. The declaration under Rule 8 by the Collector is the date after which the disqualified member ceases to hold his office. But until such date he continues to exercise his powers as a Councillor. It is, therefore advisable that whenever disqualification proceedings are initiated the competent authority must promptly take steps and decide the question of disqualification so as not to allow any member or councillor to continue in office unnecessarily if he is otherwise disqualified.
11. In the instant case having considered the submissions of both the parties we feel that a review of earlier order disposing of the petition is necessary and accordingly we recall the said order and pass the following order :-
The disqualification proceedings initiated by the original petitioner may continue before the Collector as before and he may dispose of the same as expeditiously as possible. However the injunction ordered earlier restraining the Collector from proceeding with the requisitioning of the meeting is set aside and he is free to take steps regarding requisition notice according to law.
Civil Application No. 1996 of 1993 is allowed in the above terms.
At this stage Mr. Anturkar, Counsel for the original petitioner seeks leave to appeal to the Supreme Court and also prays for interim stay of the order for a period of three weeks. The leave is refused as no substantial question of law of public importance is involved. Interim stay is refused.
Issuance of certified copy expedited.