Bombay High Court
A Hamid A Latif Bagwan vs Mr. Rahul Arun Sable And Anr on 4 August, 2015
Author: R M Savant
Bench: R M Savant
WP-4261-15 group matters.doc 24.07.2015
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4261 OF 2015
Mr. Pratap Narayan Gangekar ]
Age adult, Occupation : Business ]
R/o. Kashikapadi Galli, Pandharpur ]
Dist. Solapur ]..... Petitioner
versus
1] Mr. Rahul Arun Sable ]
Age adult Occu : Business ]
Dist. Solapur
R/o. Pandharpur, Tal. Pandharpur ]
]
]
2] The Collector Solapur ]..... Respondents.
ALONG WITH
WRIT PETITION NO.4262 OF 2015
Shri Umesh Dagadu Pawar ]
Age adult, occupation : Business ]
R/o. 210, Juni Peth Pandharpur ]
Dist. Solapur ]..... Petitioner
versus
1] Mr. Rahul Arun Sable ]
Age adult Occu : Business ]
R/o. Pandharpur, Tal. Pandharpur ]
Dist. Solapur ]
]
2] The Collector Solapur ]..... Respondents.
ALONG WITH
WRIT PETITION STAMP NO.9513 OF 2015
A Hamid A Latif Bagwan ]
Age adult, Occupation : Business ]
BGP. 1 of 16
::: Downloaded on - 04/08/2015 23:58:14 :::
WP-4261-15 group matters.doc 24.07.2015
R/o. Sant Peth Pandharpur
Dist. Solapur ]..... Petitioner
versus
1] Mr. Rahul Arun Sable ]
Age adult Occu : Business ]
R/o. Pandharpur, Tal. Pandharpur ]
Dist. Solapur ]
]
2] The Collector Solapur ]..... Respondents.
Mr. A Y Sakhare, Senior Advocate, i/by Mr. A A Joshi for the
Petitioners in all the WPs.
Mr. Y S Jahagirdar, Senior Advocate, i/by Mr. S S Kanetkar for the
Respondent No.1
Mr. S D Rayrikar, AGP, for the Respondent No.2.
CORAM : R M SAVANT, J
Reserved on : 24th July 2015
Pronounced on : 4th August 2015
JUDGMENT
1. Rule, in all the Petitions with the consent of the Learned Counsel for the parties made returnable forthwith and heard.
2. The Writ Jurisdiction of this Court under Article 227 of the Constitution of India is invoked against the identical orders all dated 18.03.2015 passed by the Collector, Solapur, by which orders the application for disqualification filed by the Respondent No.1 in each of the above Petitions came to be allowed and resultantly, each of the Petitioners above named were held to be disqualified in terms of Section 3(1)(b) of BGP. 2 of 16 ::: Downloaded on - 04/08/2015 23:58:14 ::: WP-4261-15 group matters.doc 24.07.2015 the Maharashtra Local Authority Members Disqualification Act, 1985 (hereinafter referred to as "the Disqualification Act").
The facts giving rise to the filing of the above Petitions can be stated thus :-
3. Since the facts are identical, the facts in Writ Petition No.4261 of 2015 would be referred to for the sake of convenience. The Petitioner in Writ Petition No.4261 of 2015 is an elected Councillor of the Pandharpur Municipal Council. The elections to the said Pandharpur Municipal Council took place in the year 2011. The Petitioner in the said Writ Petition is belonging to "Teerthkshetra Vikas Aghadi, Pandharpur"
(hereinafter referred to "the said aghadi"). The said aghadi contested all the 33 seats of the Pandharpur Municipal Council. However only 18 of its candidates which include the Petitioner above named were elected as Municipal Councillors. After the elections, a meeting of the said aghadi took place on 14.12.2011 in which all the 18 Councillors were present including the above Petitioner and the Petitioners in the other Petitions. In the said meeting, one Mr. Sudhakar Dhumal was appointed as the group leader and that he was authorized to issue whip to the said 18 Councillors for the ensuing period of five years which was the term of the Municipal Council. The said decision was communicated to the Collector, Solapur, with the affidavits filed by each Councillor belonging to the said aghadi BGP. 3 of 16 ::: Downloaded on - 04/08/2015 23:58:14 ::: WP-4261-15 group matters.doc 24.07.2015 stating that they have appointed said Mr. Sudhakar Dhumal as the group leader and that his whip would be followed for the period of five years.
The list of the members of the said aghadi was accordingly published in the gazette dated 18.01.2012. In the elections which took place for the post of President and Vice President thereafter the candidates of the said aghadi were elected. On the term of the incumbents to the said post of President and Vice President coming to an end, the Collector notified the election to the post of the President and the Vice President of the Municipal Council on 11.07.2014 which elections were to take place on 21.07.2014. In view of the said election, a meeting of the said aghadi was held on 15.07.2014 for deciding the candidates for the post of President and Vice President. It was decided in the said meeting that in so far as the post of President is concerned, the candidate of the said aghadi would be one Smt. Laxmi Kadam and for the post of Vice President the candidate would be one Smt. Shweta Dombe. The group leader i.e. Mr. Sudhakar Dhumal accordingly on 18.07.2014 issued the whip to all the 18 members of the said aghadi which was personally served on the Petitioners and was also published in daily "Nirbhid" on 20.07.2014 and published in daily "Pandhari Bhushan" on 21.07.2014 as also daily "Lokmat". On the day of election i.e. on 21.07.2014 the Petitioners were once again informed as regards the whip that was issued to the said 18 members of the said BGP. 4 of 16 ::: Downloaded on - 04/08/2015 23:58:14 ::: WP-4261-15 group matters.doc 24.07.2015 aghadi. However, in the elections which took place on the said day, the Petitioners voted in favour of the candidates for the said post of President and Vice President put up by the opposition and thereby defied the whip.
4. After the elections were over a meeting of the said aghadi was held on 22.07.2014 on which day, it was unanimously resolved not to condone the act of the Petitioners in defying the whip and the Respondent No.1 Mr. Rahul Sable was authorized to take such steps as were necessary for disqualification of the Petitioners. The said Mr. Rahul Sable accordingly communicated to the Collector in Form-II that the act of the Petitioner was not condoned. The Respondent No.1 thereafter in terms of the authority granted to him by the resolution passed on 22.07.2014 filed application for disqualification of the Petitioner under Rule 3(1)(b) of the said Rules.
The facts as stated hereinabove were stated in the application and it was contended that in defying the whip, the Petitioner has incurred disqualification under Rule 3(1)(b) of the said Rules.
5. The said application filed by the Respondent No.1 for disqualification of the Petitioner was replied to on behalf of the Petitioner and the other Petitioners. It was stated in the reply that the Applicant had no locus-standi to file the application as he is not the gat leader. It was also stated that the said aghadi was not registered. It was contended that no meeting was held on 15.07.2014 and that no agenda was served on the BGP. 5 of 16 ::: Downloaded on - 04/08/2015 23:58:14 ::: WP-4261-15 group matters.doc 24.07.2015 Petitioner. It was also contended that the whip was not served on the Petitioner and that the signatures of the Petitioner and the other Petitioners against their names were bogus. It was contended that the Petitioner was in Hyderabad therefore, the whip could not have been served upon him. It was contended that Mr. Sudhakar Dhumal was not a Councillor and therefore, did not have the authority to issue the whip. It was also contended that since there was no provision in the Constitution of the aghadi as to who can issue the whip, the said whip could not have been issued by the said Mr. Sudhakar Dhumal. It was also stated that the Applicant has not complied with Section 3 of the said Act.
6. The Collector considered the said application and after taking into consideration the material on record has come to a conclusion that the Petitioner stands disqualified under Section 3(1)(b) of the Disqualification Act. The gist of the reasoning of the Collector is that the Petitioner has acted in defiance of the whip which was issued by the group leader Mr. Sudhakar Dhumal. The Collector recorded a finding that the said whip was served upon the Petitioner. The Collector further recorded a finding that in terms of the resolution passed on 22.07.2014 the said Mr. Rahul Sable was authorized to communicate to the Collector, the non-
condonation of the acts of the Petitioner as also to file an application for disqualification of the Petitioner. As indicated above, it is the said order BGP. 6 of 16 ::: Downloaded on - 04/08/2015 23:58:14 ::: WP-4261-15 group matters.doc 24.07.2015 dated 18.03.2015 passed by the Collector Solapur which is taken exception to by way of the above Petitions.
7. On behalf of the Petitioner it is contended by the Learned Senior Counsel Mr. A. Y. Sakhare that the said Mr. Sudhakar Dhumal had no authority to issue the whip as there is nothing in the Constitution of the said aghadi as to who can issue the whip. It is the submission of the Learned Counsel that the said Mr. Sudhakar Dhumal is neither a Councillor nor the group leader in the house and therefore, he did not have the authority to issue the whip. In support of the said contention, the Learned Counsel sought to place reliance on the Division Bench judgment of this Court reported in 2013(6) Bom.C.R. 806 in the matter of Gajanan Subhashrao Suryawanshi Vs. Sharad Namdeo Pawar & others. It is the submission of the Learned Counsel that when the Constitution does not provide any procedure that is required to be followed, the same has to be democratic.
It is next contended by the Learned Senior Counsel that in so far as Rule 3(5) is concerned, the said Mr. Rahul Sable is not the authorized person and therefore, the communication made by the said Mr. Rahul Sable to the Collector informing him that the conduct of the Petitioner is not condoned is of no avail as said Rule 3(5) postulates that the said communication has to be by the leader of the Municipal Party.
BGP. 7 of 16
::: Downloaded on - 04/08/2015 23:58:14 :::
WP-4261-15 group matters.doc 24.07.2015
It is next contended by the Learned Senior Counsel that there is no evidence of the whip having been served on the Petitioner since the signature is seriously disputed by the Petitioner. It is further submitted relying upon an order passed in the earlier round in Writ Petition No.8858 of 2014 that the Collector has failed to carry out exercise as mentioned in the said order and therefore, the order is vitiated on the said ground.
8. Per contra, it is submitted on behalf of the Respondent No.1 by the Learned Senior Counsel Mr. Y. S. Jahagirdar that in the meeting held on 14.12.2011 it was resolved to appoint the said Mr. Sudhakar Dhumal as the group leader and it was also resolved that the said Mr. Sudhakar Dhumal would have the authority to issue the whip to the said aghadi members for the next five years. In view thereof, it cannot now be contended by the Petitioner that the said Mr. Sudhakar Dhumal was not authorized to issue the whip. It is next contended by the Learned Senior Counsel appearing on behalf of the Respondent No.1 that the Petitioner was served with the whip as also the other Petitioners. The Petitioner as a member of the aghadi is also expected to know of the issuance of the whip considering the importance attached to the election of the President and Vice President. The Learned Senior Counsel would contend that there is no necessity to serve the whip on a member of the said aghadi as a member of the said aghadi is expected to know as regards the whip issued BGP. 8 of 16 ::: Downloaded on - 04/08/2015 23:58:14 ::: WP-4261-15 group matters.doc 24.07.2015 by the group leader, assuming for the sake of argument that the whip was not served personally on the Petitioners, in support of the said contention the Learned Counsel placed reliance on the same Division Bench judgment in Gajanan Subhashrao Suryawnshi's case (supra), wherein it has been held by the Division Bench that the bare issuance of a whip is adequate and has to be deemed to be known to every constituent of a Municipal Party. In so far as the compliance with Rule 3(5) is concerned, the Learned Senior Counsel would contend that in the meeting dated 22.07.2014, it was unanimously resolved not to condone the acts of the Petitioners and the said Mr. Rahul Sable was authorized to take action for disqualifying the Petitioners. Pursuant to which resolution the said Mr. Rahul Sable has addressed the communication under Section 3(5) to the Collector. The Learned Senior Counsel would contend that the communication is only a ministerial act and the said communication has no bearing on the application for disqualification that can be filed under the Act and the Rules.
9. Having heard the Learned Counsel for the parties, I have considered the rival contentions. The issue which arises in the above Petitions is as to whether the order passed by the Collector Solapur disqualifying the Petitioners under Section 3(1)(b) of the Disqualification Act is required to be interfered with by this Court in its Writ Jurisdiction BGP. 9 of 16 ::: Downloaded on - 04/08/2015 23:58:14 ::: WP-4261-15 group matters.doc 24.07.2015 under Article 227 of the Constitution of India. The Collector, Solapur on the basis of the material on record has reached a conclusion that by defying the whip issued by the leader of the "Teerthkshetra Vikas Aghadi, Pandharpur", the Petitioners have fallen foul of Section 3(1)(b) of the Disqualification Act. The challenge to the order passed by the Collector Solapur as indicated above is three fold, namely that the said Mr. Sudhakar Dhumal is not the authorized person to issue the whip, that the said Mr. Rahul Sable does not have the authority to inform the Collector as regards the non-condonation of the act of the Petitioners and that the whip has not been served on the Petitioners as the signature of the Petitioner on the minutes of the resolution passed on 15.07.2014 is forged and that though the Collector was required to go into the said aspect as to whether the signatures of the Petitioner is forged or not, he has not gone into the said aspect on the ground that the proceedings before him is an inquiry and not a suit and therefore, the order is vitiated on the said ground.
10. In so far as the first contention urged on behalf of the Petitioners namely that Mr. Sudhakar Dhumal did not have the authority to issue the whip. It is required to be noted that in the meeting held post the elections on 14.12.2011 of the 18 members of the said aghadi Mr. Sudhakar Dhumal was elected as the President of the said aghadi and he BGP. 10 of 16 ::: Downloaded on - 04/08/2015 23:58:14 ::: WP-4261-15 group matters.doc 24.07.2015 was authorized to issue the whip to the members of the said aghadi for the period of five years i.e. term of the Municipal Council. It is an undisputed position that the Petitioner was present in the meeting and has signed the said resolution, as also the other two Petitioners. The decision taken by the said resolution dated 14.12.2011 was communicated by Mr. Sudhakar Dhumal to the Collector vide his letter dated 15.12.2011 along with the affidavits of the 18 members and the Collector was requested to publish the same in the Government Gazette. The composition of the said aghadi and that Mr. Sudhakar Dhumal was the group leader was accordingly published in the Gazette dated 12.01.2012. It is required to be noted that each member of the aghadi had filed an affidavit accepting Mr. Sudhakar Dhumal as the group leader and that he had the authority to issue the whip to the members of the said aghadi. The said affidavits as indicated above were also sent by the said Mr. Sudhakar Dhumal along with his letter dated 15.12.2011. In view thereof, the contention raised on behalf of the Petitioner that the said Mr. Sudhakar Dhumal did not have the authority to issue the whip would have to be rejected. Since it was also the contention of the Learned Senior Counsel appearing for the Petitioners that the said Mr. Sudhakar Dhumal being not a Councillor does not fit in within the definition of the "Leader" as mentioned in Section 2(b-1)(i) of the Disqualification Act which defines a leader to mean a Councillor BGP. 11 of 16 ::: Downloaded on - 04/08/2015 23:58:14 ::: WP-4261-15 group matters.doc 24.07.2015 chosen by each political party or aghadi or front in the Municipal Corporation or as the case may be in the Municipal Council. In the said context a useful reference could be made to the judgment of the Apex Court in Sadashiv H. Patil's case (supra), wherein the Apex Court in the context of the disqualification under Section 3(1)(b) observed that no provision either in the Act or Rules was brought to its notice in support of the submission made spelling out that the person or authority authorized to issue the whip must be a Councillor or a member of the Municipal Party.
Though the said Section 2(b-1)(i) spells out the definition of the leader, there is no prohibition in the Acts or the Rules for an outsider to be elected as the leader of the Municipal Party. In the instant case, the Petitioners having accepted Mr. Sudhakar Dhumal as the leader of the said aghadi and having sworn affidavits which were filed before the Collector accepting the said Mr. Sudhakar Dhumal as their leader and that they would be bound by the whip issued by him are now estopped from calling in question the authority of the said Mr. Sudhakar Dhumal to issue the whip. Acceptance of the said contention of the Petitioners would result in negating the very object with which the Disqualification Act has been introduced .
11. Now coming to the next contention of the Learned Senior Counsel appearing for the Petitioners namely that Mr. Rahul Sable could BGP. 12 of 16 ::: Downloaded on - 04/08/2015 23:58:14 ::: WP-4261-15 group matters.doc 24.07.2015 not have informed the Collector under Rule 3(5) of the Rules. In my view, the said contention is also without any substance. In so far as the defiance of the whip by the Petitioner is concerned, there can be no dispute about the fact that the Petitioner has defied the whip, thereby resulting in the candidates put up by the opposition party being elected to the post of President and Vice President. It is after the elections i.e. on 22.07.2014 that a meeting of the members of the said aghadi was held in which meeting it was unanimously decided not to condone the act of the Petitioner in defying the whip and it was further decided to authorize Mr. Rahul Sable to inform the Collector under Section 3(5) of the Rules and take further immediate steps to seek the disqualification of the Petitioner and the other Petitioners. In so far as Sub Rule (5) is concerned, it is part of Rule 3. The said Rule 3 provides for the information to be furnished by a leader of a party. Hence, the information that is to be provided to the Collector can be said to be a ministerial act in so far as the Sub Sections (1) to (5) are concerned. It is under Sub Section (5) that the leader of the Municipal Party has to inform the Collector in Form-II, whether such voting or abstention has or has not been condoned by such party, person or authority. In the instant case, the said aghadi in its meeting dated 22.07.2014 authorized Mr. Rahul Sable to give intimation to the Collector under Rule 3(5) of the non-condonation of act of the Petitioner and he BGP. 13 of 16 ::: Downloaded on - 04/08/2015 23:58:14 ::: WP-4261-15 group matters.doc 24.07.2015 was further authorized to take immediate steps to seek the disqualification of the Petitioners under the Disqualification Act. It is also required to be noted that the application for disqualification does not hinge upon or is not contingent upon the information that is provided under Rule 3(5) of the Rules. The said Rule cannot be construed to mean that if a leader of a Municipal Party does not furnish the information under the said Rule, then the application for disqualification filed is vitiated on the said ground. In my view, if such a defence is accepted, the provisions of the Disqualification Act would be turned nugatory. Now, coming to the last submission of the Learned Senior Counsel for the Petitioner, that the whip was not served and that the signature of the Petitioner is forged and the Collector though was required to go into the said aspect having not gone to the said aspect, the impugned order is vitiated.
In so far as the said submission is concerned, it is required to be noted that the Petitioner is a member of the said aghadi and had unanimously resolved to appoint said Mr. Sudhakar Dhumal as the group leader and had also authorized him to issue the whip to the members of the said aghadi for the period of five years. Once the Petitioner is a member of the said aghadi, he is expected to keep in touch with the developments and the decisions taken by the said aghadi and are expected to know the decisions taken by the aghadi. The Petitioner in the instant BGP. 14 of 16 ::: Downloaded on - 04/08/2015 23:58:14 ::: WP-4261-15 group matters.doc 24.07.2015 case was very well aware that the elections to the post of President and Vice President were to take place on 21.07.2014 and therefore, it would have to be presumed that the Petitioner was aware of the decision taken by the said aghadi to put up the two candidates on behalf of the said aghadi for the post of President and Vice President. It is therefore not open for the Petitioner to contend that unless they are served with the whip, he is not expected to know about the decision of the said aghadi. That apart, in the instant case, the signature of the Petitioner is appearing in the minutes of the meeting dated 18.07.2014 along with the signatures of the other members of the aghadi, in which minutes it is recorded that the whip has been received by the members of the said aghadi. Apart from the same, the whip was sent to the Petitioner by Registered Post and the whip was also published in three daily newspapers on 20.07.2014 and 21.07.2014. The Petitioner therefore cannot now take refuge behind the fact that he was in Hyderabad and therefore, was not aware of the decision taken by the said aghadi in respect of the whip issued to the members. It is expected of the members of any aghadi or front that they are expected to keep in touch with leader or the members of the said aghadi considering the importance that is attached to the election for the post of President and Vice President. In any event, as held by the Division Bench of this Court in Gajanan Subhashrao Suryawanshi's case (supra), BGP. 15 of 16 ::: Downloaded on - 04/08/2015 23:58:14 ::: WP-4261-15 group matters.doc 24.07.2015 wherein the Division Bench relying upon the judgment in Jitendra Himmat Biraris's case (supra) has held that the bare issuance of a whip is adequate and has to be deemed to be known to every constituent of a Municipal Party. It is pertinent to note that the Petitioner has not dealt with the averments made in paragraphs 17, 18 and 19 of the application filed by the Petitioner, which averments relate to the issuance of the whip and the knowledge attributed to the Petitioner. The Petitioner in his reply has dealt with the application only upto paragraph 16. Hence on account of non-traverse the averments made in paragraphs 17, 18 and 19 are deemed to have been accepted by the Petitioner. In my view therefore, there is no substance in the said contention of the Petitioner and therefore, even if the Collector has not entered into the exercise of recording a finding as regards the signature of the Petitioner, the same would not make any difference.
12. For the reasons aforestated, the impugned order as also the impugned orders in the companion Petitions passed by the Collector, Solapur do not suffer from any error of jurisdiction or any other illegality or infirmity for this Court to exercise its Writ Jurisdiction. The Writ Petitions are accordingly dismissed. Rule discharged in all the Petitions with parties to bear their respective costs.
[R.M. SAVANT, J]
BGP. 16 of 16
::: Downloaded on - 04/08/2015 23:58:14 :::