Bombay High Court
Sahebrao S/O Narayan Kharat vs The Collector on 31 March, 2011
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO. 1124 OF 2011
1. Sahebrao S/o Narayan Kharat, age :
major, Occupation : Business, R/o
Maligalli, Ambad, Taluka Ambad,
District : Jalna.
2. Bagwan Tamijabee Shaikh Ahmed,
age : major, Occupation : Household,
r/o Bagwan Mohalla, Ambad, Taluka :
Ambad, District : Jalna.
ig ..PETITIONERS
-VERSUS-
1. The Collector, Jalna. Acting as
Authority under the Maharashtra
Local Authority Members
Disqualification Act. (Copy to be
served on G.P., High Court, Bench at
Aurangabad).
2 Suresh S/o Ramchandra Gude, age :
major, Occupation-Business, r/o
Babulal Gude Nagar, Ambad, Taluka
Ambad, District Jalna.
3. Kailas S/o Kadajirao Bhore, age :
major, Occupation-Business, r/o
Yeshwanti Colony, Ambad, Taluka
Ambad, District Jalna.
4. Municipal Council, Ambad. Through
Chief Officer, Municipal Council,
Ambad, Taluka Ambad, District Jalna.
5. Presiding Officer/Chief Officer,
Municipal Council, Ambad.
RESPONDENTS
.....
Mr. S.B. Deshpande & Mr. M.S. Deshmukh, Advocates for
petitioners.
Mr. S.V. Kurundkar, Addl. G.P. for respondent no.1.
Mr. V.D. Salunke with Mr. S.S. Tope, Advocates for the respondent
no.3.
Mr. S.S. Patunkar, Advocate for respondent no.4.
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.....
WRIT PETITION NO. 1125 OF 2011
1. Shaikh Khurshid Ahemad Gulam
Jilani, Age : 56 years, Occ :
Business, R/o Ambad, Tq. Ambad,
District Jalna.
..PETITIONER
-VERSUS-
1. The Collector, Jalna, Dist. Jalna
(Copy of respondent no.1 to be
served through office of Govt.
Pleader, Bombay, High Court Bench
2.
at Aurangabad).
Suresh S/o Ramchandra Gude, age :
37 years, Occupation-Business, r/o
Babulal Gude Nagar, Ambad, Taluka
Ambad, District Jalna.
3. Kailas S/o Kadajirao Bhore, age : 35
years, Occupation-Business, r/o
Yeshwant Colony, Ambad, Taluka
Ambad, District Jalna.
4. Municipal Council, Ambad, Taluka
Ambad, District Jalna Through its
Chief Officer.
5. Presiding Officer, For the election for
the post of Vice President of
Municipal Council, Ambad, Dist.
Jalna (Deputy Collector, Land
Acquisition (Building) Collector
Officer, Jalna
(Copy of the respondent No.5 to be
served through office of Govt.
Pleader, Bombay High Court Bench
at Aurangabad.
RESPONDENT
.....
Mr.S.B. Deshpande & Mr. M.S. Deshmukh, Advocates for petitioner
Mr. S.V. Kurundkar, Addl. G.P. for respondent no.1.
Mr. P.R. Patil with Mr. S.S. Tope, Advocates for respondent no.3.
Mr. S.S. Patunkar, Advocate for respondent no.4.
.....
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(CORAM : B.P. DHARMADHIKARI, J.)
DATED : 31st March, 2011.
ORAL JUDGMENT :
1. By these Petitions filed under Article 226 and 227 of the Constitution of India, the petitioners are challenging the judgment delivered by the respondent no.1-Collector in Proceedings No. 1989 on 31st January, 2011, declaring them disqualified under the provisions of Maharashtra Local Authority Members Disqualification Act, 1986 (Hereinafter referred to as "1986 Act).
Writ Petition no. 1125 of 2011 is filed by another councilor challenging that order of disqualifying him. The facts are not much in dispute. The petitioners before this Court in both the matters are elected Councilors of Ambad Municipal Council, a body constituted under the provisions of Maharashtra Municipal Council, Nagar Panchayats and Industrial Townships Act, 1965 (Hereinafter referred to as "1965 Act"). The respondent nos. 2 and 3 in both Petitions are also the Councilors elected along with them. It is not in dispute that all these persons have been elected as Councilors as candidates belonging to political party namely Nationalist Congress party (N.C.P. ) in the year 2006. President of Municipal Council, Ambad was then elected for a period of two and half years. After that election and expiry of period, the election for subsequent President was held on 20th June, 2009. In that ::: Downloaded on - 09/06/2013 17:09:19 ::: 4 wp1124.11 election, Mrs. Sulbha Kulkarni and the petitioner in Writ Petition no.
1125/2011 came to be elected as President and Vice President respectively. After that election, the respondent nos. 2 and 3 filed Petition under Section 6 of the 1986 Act alleging disobedience by all petitioners to the whip issued by the N.C.P. and contended that they voted in that election contrary to it. The petitioners appeared in those proceedings, filed their replies and after oral evidence & hearing arguments, the respondent no.1 had passed order of disqualification, which came to be questioned in Writ Petition No. 8272 of 2010. Vide Judgment dated 29.10.2010, this Court remanded matter back for passing reasoned order after considering various binding precedents in the field. After remand, the respondent no.1 heard the parties on 14.12.2010 and 22.12.2010 and the matter came to be reserved for orders. The impugned order is then passed on 31st January, 2011. There is dispute between the parties about the said date but it is not very material for narration of facts at this stage. The petitioners are again disqualified by the said order.
2. This Court issued notices on 17th February, 2011 and in that order also observed that if otherwise convenient to Court, the Court may dispose of the Petitions finally at the stage of admission. Prior to that respective Counsel were heard on 15.02.1011 and because ::: Downloaded on - 09/06/2013 17:09:19 ::: 5 wp1124.11 of urgency pointed out, this Court permitted election to fill in vacancy in post of Vice President to go on but then directed that result thereof shall be subject to further orders of this Court. Those interim orders are then continued & operate even today.
3. I have heard Advocate Mr. S.B. Deshpande with Advocate Joshi for petitioners in Writ Petition No. 1124 of 2011, Mr. M.S. Deshmukh for petitioner in Writ Petition no. 1125 of 2011, learned A.G.P. for respondent no.1, Advocate Mr. Salunke for respondent no.3 in Writ Petition no. 1124 of 2011 and Advocate Mr. P.R. Patil for respondent no.3 in Writ Petition no. 1125 of 2011, Mr. S.S. Patunkar, Adv. has appeared for respondent no.4 Municipal Council in both the matters. In addition to oral arguments, all the Counsel have also placed on record the brief notes of arguments in writing.
4. Advocate Mr. Deshpande has contended that most important question involved in the matter was about the formation & existence of the Municipal party i.e. Ambad Municipal party and the person elected by that municipal party as its group leader (Gat Neta). He has urged that in present facts one Shri. Ankushrao Tope has claimed himself to be the District President of N.C.P. He has further alleged that he has nominated/appointed respondent no.2- ::: Downloaded on - 09/06/2013 17:09:19 ::: 6 wp1124.11 Shri. Suresh Gude as group leader. His contention is, in accordance with provisions of Rule 3-C and the definition of phrase `Leader in relation to Municipal party' as given in Rule 2(b-1)(i) of 1987 Rules such leader needs to be elected by the members constituting municipal party. As no such meeting or then election of Shri. Suresh Gude has been proved on record, the constitution of municipal party itself has not been proved. In absence thereof there is no question of any whip being issued, its violation or then further action under the provisions of 1986 Act. He has further contended that the alleged communication of constitution of Municipal Party to the office of Collector is not sent by alleged group leader and it is claimed to have been forwarded by Shri. Ankushrao Tope. It is urged that the provisions of Rules again require elected group leader to forward that information in Form-I to the Collector. His contention is, though there are no documents in this regard, the Collector has erred in observing that material on record reveals status of Shri. Tope as District President of NCP and the communication dated 18.12.2006 forwarded by him has been accepted as valid for returning a finding of constitution of municipal party. He urges that even minutes of meeting held for election of group leader are not produced before Collector. He further contends that decision to field Smt. Jayashree Sodani for the post of President in 2009 elections was not taken by municipal ::: Downloaded on - 09/06/2013 17:09:19 ::: 7 wp1124.11 party and it was decision of individual viz. Shri. Tope. As there is no material on record to show any such democratic process and support to Smt. Sodani, Collector erred in treating her as official N.C.P. candidate. He invites attention to records to show that on 16.06.2009, two N.C.P. candidates had filled nominations for the post of President, and therefore, it could not have been said that on 14.06.2009 when whip was attempted to be served on petitioners, Smt. Sodani was the official candidate or there was any party decision.
5. Nomination paper of petitioner no.2-Tamijabee was for the post of President and respondent no.3-Kailash Bhore was her proposer. The petitioner no.1 himself was proposer on nomination paper of Smt. Sodani on 16.06.2009 and had filled his own nomination paper for the post of Vice President. In view of material available on record according to learned Counsel the contention that the petitioners were not available in Ambad city from 14.06.2009 till 20.06.2009 is not supported. He further argues that this material also shows the absence of any official candidate during this period.
6. Coming to the service of alleged whip, learned counsel has invited attention to Rule 7 of the Rules framed by municipal party.
::: Downloaded on - 09/06/2013 17:09:19 ::: 8wp1124.11 He points out that service of whip is envisages as per the provisions of Section 325 of 1965 Act. He contends that this section does not permit service of it by news paper advertisement and hence, evidence of publication of that whip in daily news paper Sakal is totally irrelevant. He has then invited attention to cross examination of Shri. Gude to urge that even as per that cross examination attempt was made to serve whip on minor at residence of petitioner no.2-Tamijabee. He contends that alleged pasting after such attempt cannot be termed as valid service.
Similarly, he contends that because of contradiction in evidence about service of whip or its alleged pasting at residence of petitioner no.1-Sahebrao or the petitioner-Shaikh also cannot be accepted. He invites attention to cross examination of son Sandip of petitioner-Sahebrao to urge that in view of his evidence attempted service on Sahebrao could not have been accepted. His argument is that act of pasting has not been established as respective witnesses on panchanama have not been produced and examined before the Collector.
7. He points out that the respondent no.1-Collector was on leave on 31.01.2011 and the petitioners received communication on 28.01.2011 that judgment would be pronounced on 31.01.2011.
The judgment as pronounced shows that it was delivered on ::: Downloaded on - 09/06/2013 17:09:19 ::: 9 wp1124.11 25.01.2011 itself. His contention therefore is, these facts create suspicion about the date of delivery of judgment. He has urged that though during cross examination of respondent no.2, he stated that he would produce necessary documents on record, no such documents were tendered by him at any time and reliance upon such documents by Collector in the impugned order is misconceived. He has invited attention to fact that said documents placed at page nos. 672 to 685 of Record and Proceeding do not form part of original record of Collector in as much as filing thereof is not reflected by corresponding mention in order sheet and there is no list of document or any other material to show the date on which the same were produced. He contends that filing thereof was never within the knowledge of petitioners and these documents were not tendered as evidence, hence the Collector could not have relied upon those documents at all. Attention is invited to the ground in this respect in Writ Petition with contention that there is no specific reply in this respect by the office of Collector.
8. Lastly provisions of Rule 8(3) of 1987 Rules are relied upon to urge that unless and until the result in the matter was gazetted the vacancy could not have occurred and without waiting for such gazette notification with undue haste the respondent no.1 Collector declared programme for election of Vice President.
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9. Advocate Mr. M.S. Deshmukh appearing for petitioner in Writ Petition no. 1125 of 2011 has adopted the arguments of Advocate Mr. Deshpande. He has urged that after authority of Shri. Ankushrao Tope as District President was challenged, he did not produce any documents and the Collector has recorded finding about his status by placing reliance upon such document which do not form part of record. He further states that even alleged information supplied by Shri. Tope about the constitution of Ambad Municipal party i.e. municipal party is incomplete and the Collector could not have placed reliance upon it. He has invited attention to provisions of Rule 2(b-1) (i) of 1987 Rules and of Bye-laws 1(gh) and 3(k) to urge that same requires the group leader to be elected in meeting of Councilors. According to him, there is nothing on record to show that any meeting was held on 18.01.2009 or any other date thereafter and in it, the respondent no.2-Shri. Gude was elected as group leader. Reliance upon the sole testimony of Shri. Tope according to him is therefore not proper. About service of whip, he has pointed out that witnesses examined by complainant namely Shamsundar admitted that at the house of petitioner it was not disclosed to any senior family member that whip was to be served upon petitioner. Evidence of real brother of the petitioner before the Collector is pressed into service to show that said brother was present in the house at the relevant time and deposed ::: Downloaded on - 09/06/2013 17:09:19 ::: 11 wp1124.11 specifically that no such whip was affixed. He contends that this evidence of Shamsundar and evidence of brother of petitioner has been thus overlooked. Lastly he contends that as news paper service of whip is not envisaged in by-laws, the finding of Collector that whip can be served through any mode is unsustainable. He has invited attention to another order passed by very same Collector to urge that in relation to Partur Municipal Council such news paper service is held invalid by him. Even otherwise according to him, what is produced on record is a portion or part of daily news paper Sakal and incomplete news paper therefore, according to him, cannot be looked into by office of Collector. He also argues that when the meeting was scheduled on 20th June, 2009, there was no urgency to effect service on 14.06.2009 and alleged whip could have been served at any time prior to that date.
Lastly he contends that the burden to show that alleged act of defiance has not been condoned by the municipal party, is upon the complainant before the Collector and Collector has placed that burden wrongly upon the petitioner. He therefore argues that impugned order shows total non-application of mind and same therefore deserves to be quashed and set aside.
10. Both the learned Counsel for the petitioners have relied upon the judgment of the Hon'ble Apex Court reported at "2000 (Supp.) ::: Downloaded on - 09/06/2013 17:09:19 ::: 12 wp1124.11 Bom.C.R. 829" ( Sadashiv H. Patil V/s Vithal D. Teke & others) to urge that after the general elections, formation of municipal party at Ambad municipal level is of vital importance in this matter and it is this municipal party which then gets the statutory recognition.
The provisions of Rule 3 contemplate leader of such municipal party being elected and then he is under obligation to furnish necessary information in Form-I to the office of Collector. It is urged that a copy of Rules and Regulations of municipal party are also required to be filed with Collector. Evey Councilor then is required to furnish the statement of particulars and declaration in Form-III and then such information is required to be published in Maharashtra Gazette. According to them, there is system of cross check provided in Rules and i.e. how compliance of these Rules should itself result in evidence supporting formation of municipal party. Judgment of Division Bench of this Court reported at "1990(3) Bom.C.R. 199" ( Suresh Madhaorao Bhange and others V/s Collector, Wardha and others" is also pressed into service to urge that fiction created by Explanation (a) to Section 3 of 1987 Act is for limited purpose and the members elected are deemed to be belonging to that particular political party. The fiction does not travel beyond that and does not bring into existence a municipal party not at all in existence till then.
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11. Learned A.G.P. appearing for respondent no.1-Collector has supported the impugned order. Relevant records are available with him for inspection by this Court and for use of parties. Hence, accordingly, parties had been permitted to peruse the same before their arguments.
12. He points out that Writ Petition no. 8272 of 2010 was disposed of by this Court on 29.10.2010 and the Collector was given time of one month to decide the dispute remanded to him.
The said orders were received by the office of Collector on 23.11.2010 and hence, the Collector made all possible efforts to dispose of the matter within a period of one month from receipt of those orders. Attention has been invited to affidavit filed by Residence Deputy Collector Shri. Avinash Pathak to urge that the Collector had passed the judgment on 25.01.2011 itself. On 26.01.2011 there was public holiday and from 27.01.2011, the Collector had proceeded on leave because of unavoidable circumstance. As the time schedule had already expired and the Collector was required to proceed on leave, the office of Collector had communicated parties vide letter dated 28.01.2011 that Judgment in the matter would be pronounced on 31.01.2011.
Learned A.G.P. states that in that letter it was inadvertently mentioned that the order was to be pronounced on 31.01.2011 ::: Downloaded on - 09/06/2013 17:09:19 ::: 14 wp1124.11 instead of communicating that copies of judgment would be supplied on 31.01.2011. He further states that letter dated 31.01.2011 is in the form of intimation to the parties and operative part of the order was communicated. According to him in this situation no prejudice is caused to any of the parties.
13. Advocate Mr. V.D. Salunke appearing for respondent no.3 in Writ Petition no. 1124 of 2011 has at the outset pointed out certain basic facts which according to him are not in dispute. He states that all three petitioners in both matters are members of N.C.P. and they were set up as candidates for elections and contested the same as such on N.C.P. symbol. They have admitted before the Collector that they have been elected as N.C.P. candidates. They also accept that they have voted in favour of the opposite candidate and against the N.C.P. candidates on 20.06.2009.
Petitioner no.1 in Writ Petition no. 1124 of 2011 though the candidate of N.C.P. for the post of Vice President cast his vote to opposite candidate and admitted that in his cross examination. He relies upon that cross examination to urge that they also admitted knowledge of official candidate of N.C.P. His contention is, these facts clearly show that the petitioners have acted in violation of party mandate and looking to object behind enactment the findings in this respect as recorded by the respondent no.1 Collector should ::: Downloaded on - 09/06/2013 17:09:19 ::: 15 wp1124.11 not be disturbed. He argues that the respondent no.1 Collector is a fact finding authority under the said provisions and in writ jurisdiction, this Court can not go behind or beyond those findings.
He relied upon the judgment of Hon'ble Division Bench reported at "1999(1) Bom. C.R. 287--1999(1) Mah,L.J. 525" ( Smt. Shilpa Subhash Dhundur V/s Ratnagiri Nagar Parishad and others).
14. The objection to status of Shri. Ankushraoji Tope as District President is also alleged to be frivolous by him. He argues that all the petitioners were party candidates and District President allots candidature or symbols and they were aware of the same. This has been proved by Shri. Tope in his evidence. He has invited attention to certain documents filed along with reply before this Court to show that since establishment of N.C.P. Shri. Tope is District President of Jalna N.C.P. He points out that these documents are part of record of Collector at pages 672 to 685. In this view of the matter, again his contention is, the finding of Collector in this respect is based upon documents and same can not be ignored.
He further points out that witnesses namely petitioners in Writ Petition no. 1124 of 2011 have categorically admitted status of Shri. Tope as District President. He has further pointed out that petitioner no.2 Shri. Bagwan himself happen to be Taluka President of N.C.P. for over 13 years. He invites attention to ::: Downloaded on - 09/06/2013 17:09:19 ::: 16 wp1124.11 specific assertion in this respect as contained in paragraph no.3 in complaint filed before the Collector by respondent nos.2 and 3 and also to reply/written statement. His contention is, in written statement there is no denial of status of Shri. Tope as District President and denial is only of authority with him to appoint anybody as group leader of municipal party.
15. He has contended that provisions of 1987 Rules permit the District President to select any elected ward-member of N.C.P. as group leader. He has relied upon very same provision on which the respective learned Counsel for petitioner placed emphases for this purpose. According to him, marathi word `Nivad' used therein does not mean "election" but also permits selection and nomination. He contends that District President is authorised to choose group leader from amongst elected ward members of N.C.P. who constituted the municipal party. In this back ground attention is also invited to constitution (regulations) of municipal party to urge that those provisions also do not militate with such process of choosing group leader. He contends that District President has been given fulll discretion in this respect. He invites attention to communication dated 18.12.2006 and letter dated 22.12.2006 to show that thereby District President has intimated appointment of group leader Shri. Gude to the office of Collector. According to him, the petitioners ::: Downloaded on - 09/06/2013 17:09:19 ::: 17 wp1124.11 have admitted in their cross examination that when earlier elections were conducted in 2006 Shri. Suresh Gude was a group leader. He points out that it is not their case that this situation has undergone any change after 2006 and till 2009.
16. Objection to existence of municipal party is taken only to defeat the provisions of 1986 Act and 1987 Rules. In the light of position already mentioned above, he contends that provisions of Section 2(1)(ii) r/w Explanation (a)(b)(i) of Section 3 of 1986 Act bring about the formation of the municipal party by deeming fiction.
In view of this deeming fiction in the alternative, he contends that non communication of its formation by group leader Shri. Suresh Gude is not fatal and can not be said to be even an irregularity.
Rule 3 of 1987 Rules contemplating such communication therefore should be construed as only directory. According to him as it does not prescribe any penal consequences, it can not be read as mandatory provision. Because of these arguments, Rule 3 can not override effect of provisions of Section 2(1) r/w Section 3 of 1986 Act. He places reliance upon the judgment of this Court reported at "2009(5) Bom.C.R. 753" ( Manoj Bansilal Biyani V/s Sameer Krishnadhan Kart and another) to urge that provisions of Rule 3 are already held to be only directory.
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17. It is argued that the whip has been served on seven members and three petitioners avoided it. Because of this avoidance it was attempted to be served on adult family members and when adult family members also did not cooperate, it was pasted on the door/house of the respective petitioners and proper panchanama was drawn. Despite this and only to avoid any other objection, the said whip was also published in widely circulated news paper in Marathi language i.e. daily Sakal on the date of election i.e. 20.06.2009 with names of group leader and District President. He invites attention to the Judgment of the Hon'ble Apex Court reported at "2008 A.I.R. SC 1006" (Sunil Poddar & others V/s Union Bank of India) to urge that such service therefore must be deemed to be valid.
18. Without prejudice to all this he contends that when petitioners entered the meeting hall on 20.06.2009, effort was made to serve the whip upon them personally. They read the same and have thrown it away. According to him this episode is captured in video and that shooting is available with records of Collector. He further reiterates that this is also proved by witness Shri. Gude and other witnesses examined. According to him, in any case petitioner-Sahebrao admits that he was aware about the official candidates set up by N.C.P. for the post of President and Vice ::: Downloaded on - 09/06/2013 17:09:19 ::: 19 wp1124.11 President. He has placed reliance upon the judgment of Division Bench of this Court reported at "1999(1) Bom. C.R. 287" (Smt. Shilpa Subhash Dhundur V/s Ratnagiri Nagar Parishad and others) to show that when material on record revealed service of whip. the Division Bench of this Court found that Court can not go behind the same in writ proceedings.
19. By placing reliance upon Section 45 of Maharashtra Agricultural Produce Marketing Regulation Act, learned Counsel attempts to show that there importance has been given to gazette notification and consequences otherwise are also prescribed.
According to him, in absence of stipulation of such consequences under Rule 8 of 1987 Rules, emphases upon absence of gazette by petitioners is without any substance.
20. He has urged that the allegations about abuse of office by Collector in the matter are misconceived and not supported by records. According to him the documents in dispute viz. at pages 672 to 685 were filed before the Collector only in accordance with answer given during cross examination and there is no tampering or interpolation in this respect. Similarly, the order was communicated to the parties on 31.01.2011 and service of notice dated 28.01.2011 or then language therein is not of any ::: Downloaded on - 09/06/2013 17:09:19 ::: 20 wp1124.11 importance.
21. Advocate Mr. Patil appearing for respondent no.3 in Writ Petition no. 1125 of 2011 has reiterated the stand of Advocate Mr. Salunke. It is to be noted that the respondent no.3 in both matters is the same person. He has invited attention to the deposition of petitioner to urge that he has admitted selection of Shri. Gude by Shri. Tope on 18.12.2006. He contends that grievance about that selection is being made almost after three years i.e. in 2009 for the first time. He has further contended that petitioner in Writ Petition no. 1125 of 2011 has stated that he was only understanding Urdu but then evidence on record reveals that he has taken his education in Marathi medium. In this background, he has invited attention to preamble of 1986 Act with contention that when facts on record prove violation, and therefore attract mischief dealt with by the aims and objects sought to be achieved by that Act, the impugned order does not call for any interference.
22. Before proceeding further to evaluate rival contentions I find it appropriate to briefly narrate the application of mind by respondent no.1-Collector. In impugned order he has framed four issues first one is whether Municipal party as required by 1986 Act was formed or not. Second one is, whether the Competent ::: Downloaded on - 09/06/2013 17:09:19 ::: 21 wp1124.11 Authority had issued any whip in relation to meeting dated 20.06.2009 for election of President and Vice President. The third issue drawn is, whether that whip was served in accordance with constitution of political party. Issue no.4 is subdivided into two parts and by first part, the question framed is, whether the act of violation of whip is condoned by the person or by the competent authority in Form II within 30 days. The latter part is on same line but instead of violation of whip the question is about the absence in meeting.
As it is no body's case that the petitioners were absent in the meeting, same has been answered by recording that it is not applicable.
23. Finding recorded against issue no.1 reveals that Shri. Ankushrao Tope during his cross examination stated that he would produce documents showing his appointment as District President later on and accordingly, he produced those documents. It is further found that for the first time in 2009, the question about formation of such political party has been raised by these three petitioners and in past about two and half years, there was no grievance. Because of this, the founding or formation of municipal party for Ambad Municipal Council by N.C.P. has been inferred.
While discussing the issue no.2, the Collector has found that status of Shri. Ankushrao Tope as District President was admitted and ::: Downloaded on - 09/06/2013 17:09:19 ::: 22 wp1124.11 selection of Shri. Suresh Gude (respondent no.2) in meeting dated 18.12.2006 was disclosed by District President during his deposition. It also noted that in documents filed along with application, written authorisation by Shri. Tope in favour of Shri. Gude was also filed and evidence of Shri. Tope and Shri. Gude disclose grant of such authorisation. In view of this, issue no.2 is answered by holding that the whip has been issued in accordance with Section 3(1) of 1986 Act. The service of whip and evidence adduced by the parties to prove or disprove it, is considered while answering the issue no.3. It has been held that there is no evidence by petitioners to show that from 14.06.2009 to 20.06.2009, they were available in Ambad town. Because of signature of petitioner-Sahebrao on nomination paper of Smt. Sodane, it is gathered he was present in the morning on 16.06.2009 but then that has been held insufficient to infer that he was present during entire period mentioned above. The judgment of this Court reported at "Smt. Shilpa Subhash Dhundur V/s Ratnagiri Nagar Parishad and others " (supra) is relied upon to conclude that service of whip upon the petitioner-Sahebrao and petitioner-Khurshid as per Section 325(1)(b) of 1965 Act is established. The objection of present petitioner about contents of panchanama is then looked into and rejected. The evidence produced by the petitioners is also disbelieved by observing that ::: Downloaded on - 09/06/2013 17:09:19 ::: 23 wp1124.11 the said evidence was of their close relatives. The discussion by Collector against issue no.4 is not very relevant and none of the parties have advanced arguments in relation thereto before this Court.
24. The petitioners have contended that the respondent no.1- Collector has acted with undue haste and for that they have relied upon the provisions of Rule 8 of 1987 Rules. Rule 8 deals with decision of Petitions. As per Rule 8(1)(b), the Collector has to deliver or forward to the petitioners, to the Councilors or members in whose relation the Petitions have been made and to the leader of the Municipal party, the order in writing declaring him disqualified under 1986 Act. Under sub-Rule 2 such decision of disqualification is required to be reported to municipal council forthwith. Sub Rule 3 then requires such decision to be notified in Maharashtra Government Gazette and it further contemplates the copies of such decision to be forwarded to the State Government. Thus, in scheme of Rule 8 no particular importance as such is given to publication of decision in Government Gazette. The emphasis is on delivery of prejudicial order upon the Councilors against whom it is made and also upon the leader of political party at whose instance action has been taken. The requirement to wait till there is gazette notification, therefore, is not spelt out from this provision. Advocate ::: Downloaded on - 09/06/2013 17:09:20 ::: 24 wp1124.11 Mr. Salunke has relied upon the provisions of Section 45 of the A.P.M.C. Act to draw a parallel by urging that consequences as prescribed therein are not laid down in Rule 8. Two enactments are entirely different and hence, scheme in one can not be interpreted by reference to scheme of another. Analogy in Section 45 of the A.P.M.C. Act is not relevant. However, scheme of Rule 8 itself is very apparent and hence the respondent no.1-Collector cannot be said to have faulted by not waiting for gazette notification of disqualification before declaring vacancy and permitting election of vice-President of the respondent no.4 Municipal Council.
25. There is dispute even in relation to the date of order of the Collector. The communication dated 31.01.2011 with Writ Petition no. 1124 of 2011 is addressed to respondent no.2, the respondent no.3 and all three petitioners. It mentions that hearing on disqualification Petition was over and following order "is being passed". Then below these words, the operative part appears.
Office of Collector has filed reply affidavit on 15.03.2011 and in that reply affidavit, it is pointed out that hearing was concluded by Collector on 24.12.2010 and matter came to be reserved for orders. The orders were passed on 25.01.2011. The Collector was required to proceed on leave on 27.01.2011 and 26.01.2011 was holiday. The matter was time bound because of the orders of this ::: Downloaded on - 09/06/2013 17:09:20 ::: 25 wp1124.11 Court and hence, the Collector communicated by letter dated 28.01.2011 that orders would be pronounced on 31.01.2011. It is explained that use of these words pronounced on 31.01.2011 is incorrect. It is clarified that it should have been mentioned that the copies of orders would be made available to the parties on 31.01.2011. It is further mentioned that the communication dated 31.01.2011 is in the form of intimation and operative part has been communicated. The explanation also is not very happily worded. If the order was ready on 25.01.2011 and was to be made public on 31.01.2011, the entire order could have been shown to parties and their signatures could have been obtained on order sheet on 31.01.2011. However, it is admitted position that there is no such order sheet for date 31.01.2011. But then, except for making this grievance about the date of passing of order, there is no other complaints made or prejudice pointed out. Hence, this fact by itself is not fatal to that order.
26. The respondent no.4 Municipal Council has filed affidavit of its Chief Officer Shri. Nilesh S/o Shetti Sunkewar and mentioned that on 15.02.2011, the elections for the post of Vice President of Ambad Municipal Council have been held and one Chandraprakash Sodani has been elected as Vice President. As already noted above, the said election is subject to orders of this ::: Downloaded on - 09/06/2013 17:09:20 ::: 26 wp1124.11 Court in present matters & an order to that effect is already passed on 15.02.2011.
27. This bring me to question of formation of Ambad Municipal party or then a Municipal party or political party of NCP for Ambad municipal council. The assertion in this respect is contained in Petition under Section 7 of 1986 Act filed by the respondent nos.2 and 3 before the respondent no.1. In paragraph no.3, it is pleaded that the District President of Nationalist Congress party Shri. Ankushraoji Tope appointed the respondent no.2 as Gat Neta/ Group leader in Municipal Council, Ambad. Present petitioners have filed their common written statement and in that written statement in paragraph no.9 they have contended that adverse contents in paragraph no.3 of the Petition are wrong and hence specifically denied. They have further pleaded that " it is specifically denied that the District President Shri. Ankushrao Tope was authorised to appoint anybody as group leader of Ambad Municipal Council, Nationalist Congress party." Thus assertion in Petition that Shri. Ankushraoji Tope was District President of Nationalist Congress party has not been specifically dealt with or denied. Moreover, the provisions of the Constitution of political party in its clause 1 define the District President to mean the President of District branch of approved political party i.e. ::: Downloaded on - 09/06/2013 17:09:20 ::: 27 wp1124.11 Nationalist Congress party. This position and other evidence on record has been looked into by Collector to hold that Shri. Tope is the District President of N.C.P. The said finding does not appear to be either erroneous or perverse.
28. To bring on record the formation of Municipal party of N.C.P. in relation to Ambad Municipal Council deeming fiction in Section 3(1) Explanation (a) has been pressed into service by the respondents along with the provisions of Section 2(I)(ii). Provision of Rule 2(i) define Municipal party in relation to Councilors belonging to any political party in accordance with Explanation to section 3. Under clause II, it is laid down that group consisting of all the Councilors of Municipal Council for the time being belonging to that political party in accordance with the said explanation shall constitute a municipal party. Obviously reference is to Explanation to section 3. Perusal of Section 3 shows that it deals with disqualification on the ground of defection. Its Explanation (a) states that a person elected as Councilor shall be deem to belong to political party by which he was set up as candidate for election as such Councilor. Before me, it is not in dispute that all three petitioners were set up by N.C.P. and hence, if this explanation is to operate, they are to be deemed to belong to a political party of N.C.P. in Ambad municipal Council.
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29. Advocate Mr. Deshpande, learned Counsel has however placed reliance upon the Division Bench judgment reported at "1990(3) Bom.C.R. 199" ( Suresh Madhaorao Bhange and others V/s Collector, Wardha and others) to urge that this deeming fiction cannot be extended to infer such belonging. He has further pointed out that provision of Rule 4 of 1987 Rules require such Councilor to furnish information in Form III and in present facts such information has not been furnished. In view of this material, it is his contention that there is no formation of municipal party for Ambad Municipal Council, and hence no action under 1986 Act or 1987 Rules is legally permissible.
30. Rule 4 sub-Rule 1, Clause (a) of 1987 Rules requires every Councilor in relation to municipal party to furnish to Collector within 30 days from the date of commencement of 1987 Rules or within such a further period as Collector may allow statement of particular and declaration in Form III. Perusal of prescribed form III reveals that vide its clause `5' he has to disclose his affiliation to a political party with details like date of election and date of signing Form III.
This form is required to be accompanied by declaration that information furnished therein is true and correct with further undertaking that in case of any change therein, the Councilor will inform it immediately. At the bottom of the Form there is note that ::: Downloaded on - 09/06/2013 17:09:20 ::: 29 wp1124.11 said form is to be filled in by Councilor elected or nominated before the date of coming into force of 1986 Act. The note obviously appears to be old one because Rule 4 in its present form appears to have been substituted on 16.03.1990 in so far as its relevant portion is concerned.
31. Thus on one hand there is provision in Rule 4(1) which obliges elected Councilor like petitioners to submit necessary particulars in Form III within 30 days and on the other hand, there is a substantive section in the shape of Section 3(1) with Explanation (a) to it which carries with it a deeming fiction. The provisions of Rule 4 expressly qualify the requirement of filing in Form-III within 30 days which words "from the date of commencement of this Rules". In any case, it is apparent that there is no inconsistency as such between the said Rule or then Explanation (a) to Section 3(1). Section 3(1) with its explanation (a) is a superior legislation of the State Legislature while 1987 Rules framed thereunder is the subordinate legislation.
32. Perusal of the judgment of Division Bench of this Court reported at "1990(3)Bom.C.R. 199" ( Suresh Madhaorao Bhange and others V/s Collector, Wardha and others) (supra) shows that there this Court was required to consider the election to ::: Downloaded on - 09/06/2013 17:09:20 ::: 30 wp1124.11 Zilla Parishad, and therefore, Explanation (b) to Section 3(1) was relevant. Advocate Mr. Deshpande has relied upon the observations in paragraph 20 to urge that said deeming fiction has got limited effect. The relevant observations by Hon'ble Division Bench in paragraph no.21 show a finding that fiction created by Explanation (a) to section 3 merely means that if members are elected on Congress (I) tickets, they will be deemed to belong to Congress (I) party. It does not traverse beyond that.
ig Division Bench has concluded that the fiction does not bring into existence a party which is not at all in existence and because of this, it has rejected the arguments of learned Counsel for the respondent nos.
4 and 5 that though party may not be factually in existence still, fictional existence of party needs to be presumed in view of that Explanation. Consideration by Division Bench in paragraph no.21 itself shows that there the Zilla Parishad party was not in existence in 1987. The facts also show that after elections on Congress (I) tickets, the petitioners formed a group belonging to that political party and this continued till 1982 and after 15.08.1982, Zilla Parishad Congress party was dissolved. Thereafter, every body was given liberty to vote as per his wisdom when occasion arose and this situation prevailed in December, 1987. Hon'ble Division bench has noted that there was nothing on record to show that Congress (I) party of Zilla Parishad was ever reconstituted or ::: Downloaded on - 09/06/2013 17:09:20 ::: 31 wp1124.11 reformed thereafter. The action for disqualification against the petitioners before the Hon'ble Division Bench was in relation to meeting convened on 08.12.1987 for consideration of motion of no confidence against the President and Vice-President. The General Secretary of Maharashtra Pradesh Congress Committee issued letter dated 07.12.1987 not to vote in favour of that motion and inspite of these directives, the petitioners had voted in favour of that motion. These facts therefore clearly show that direction was given when there was no Zilla Parishad party in existence and by taking recourse to Explanation (a) to Section 3(1) effort was made to persuade the Court to presume its existence. Hon'ble Division Bench has therefore found that said deeming fiction could not be stretched to presume things factually not in existence.
33. In facts before me, the provision of Section 3(1) Explanation
(a) are clearly attracted. The Section itself stipulates that such person contesting election as a member of a particular political party shall be deemed to be belonging to that political party by which he was set up as candidate for that election. I therefore find no substance in objection of Advocate Mr. Deshpande in this respect.
34. The documents produced before Collector and looked into ::: Downloaded on - 09/06/2013 17:09:20 ::: 32 wp1124.11 by him particularly at page 672 to 685 of Record and Proceedings are also seriously challenged. These documents are looked into by Collector only to gather that Shri. Tope is District President of Jalna Branch of N.C.P. It is true that filing of said documents subsequently is not on record. Merely because, witness Shri. Tope deposed that he would produce those documents latter on, the documents could not have been accepted by the office of Collector behind the back of petitioners and without any notice to them.
There ought to have been proper application seeking leave to file those documents and after giving opportunity to petitioners to meet those documents, the Collector could have decided whether to look into the same or not. Here not only such opportunity is not given to petitioners but then there is no order sheet on Record to check the date on which those documents came on record. However, after considering the purpose for which the documents are used and conclusion reached above, I find that the petitioners are not prejudiced in any way because of use of those documents by the Collector. Hence, I am not giving much importance to these irregularities by the respondent no.1.
35. Other important question which has been urged by petitioners before this Court is the status of respondent no.2 Shri. Gude as group leader i.e. as leader of political party of N.C.P. in ::: Downloaded on - 09/06/2013 17:09:20 ::: 33 wp1124.11 relation to Ambad Municipal Council and communication of that status to the office of Collector. The pleadings in this respect are in Petition filed by the respondent nos.2 and 3 in paragraph no.3. In paragraph no.3 it is alleged that Shri. Ankushraoji Tope, District President, N.C.P. District Jalna appointed applicant no.1-Shri. Suresh Gude on the post of group leader of Nagar Parishad Ambad and that information and copy of constitution has been forwarded to Collector, Jalna on 18.12.2006. The order of Collector also shows cross examination of Respondent no.2-Shri. Suresh Gude in this respect. The finding shows that respondent no.2-Shri. Suresh has been elected as group leader unanimously on 18.12.2006 in the meeting and evidence adduced by Shri. Tope has been accepted by the respondent no.1 Collector for said purpose. The communication produced before this Court along with their affidavit by the respondent nos. 2 and 3 as Annexure R-2 is dated 22.12.2006. It is under sign of Shri. Ankushrao Tope and addressed to Collector on the subject of selection of group leader for Ambad Municipal Council. It mentions that out of Councilors belonging to N.C.P. elected on Ambad Municipal Council, unanimously, Shri. Suresh Gude who has been elected from ward no.1, came to be elected as group leader. Shri. Tope therefore has communicated that accordingly Shri. Suresh Gude is appointed on the post of group leader. Perusal of Record and Proceedings with ::: Downloaded on - 09/06/2013 17:09:20 ::: 34 wp1124.11 learned A.G.P. (at Page 69) reveals that at Exhibit-B, the communication is on the subject of formation of municipal party, its constitution, its group leader and of its members. It is written on 18th December, 2006 and it mentions that N.C.P., a political party at National level is formed in Municipal Council, Jalna. It is further mentioned that as per the provisions of 1986 Act and 1987 Rules framed thereunder, the constitution of political party in prescribed format proforma-3 and proforma-1 is being forwarded to the Collector. Immediately after this, the copy of constitution of political party for Ambad Municipal Council is seen appended. Then there is photostat copy of Form No.1 as per Rule 3(1)(a) of 1987 Rules.
Name of Shri. Gude is appearing at Sr. No. 1 in it. Thereafter, there is one declaration by Shri. Arun Achutrao Upadhya but then he belongs to Bhartiya Janata party. Another document also at Exhibit-B at page 81 of said Record is undated and appears to have been sent by Shri. Tope to Collector. It mentions that power to take all decisions and to issue whip are with Shri. Tope in his capacity as District President and with his previous permission powers to take such decision and to issue whip in House of Municipal Council shall be with respondent no.2-Suresh Gude.
Thus, the communication annexed at Annexure R-2 with reply affidavit is entirely different. Communication dated 18th December, 2006 at Exhibit-B is not in relation to Ambad Municipal Council and ::: Downloaded on - 09/06/2013 17:09:20 ::: 35 wp1124.11 undated communication which is in relation to Ambad Municipal Council is not only communication of election of group leader but it is communication of authority to take decision and to issue whip.
The facts as pleaded are therefore not supported by this state of affairs.
36. Perusal of order of Collector impugned before this Court reveals reliance on cross examination of Shri. Suresh Gudhe. In that cross examination, Shri. Suresh has stated that after general elections, a meeting of members elected to municipal council was conducted but he was not remembering its date. The meeting was conducted in first week of December, 2006 between 15 to 16 hours. He was not aware whether the proceedings of meeting were written or not. He also did not remember whether there was any constitution of Ambad Municipal party. When asked whether there was any written procedure or Rules for selection of group leader, he answered the said selection has to be by majority. He has then stated that all N.C.P. elected ward members had taken meeting.
He could not disclose the date, time and place of that meeting.
However, he added that that proceedings were written by his Personal Assistant Shri. Deelip Gudhe. The copy of the said proceeding was not produced by him before the Collector. He also accepted that he had not informed the office of Collector about the ::: Downloaded on - 09/06/2013 17:09:20 ::: 36 wp1124.11 election of group leader in 2006. Then Exhibit-B was shown to him and the Collector has noted that it was without any date, month or year.
37. This cross examination and material on record therefore is not sufficient to conclude that the intimation of formation of a Municipal party for Ambad was served upon the office of the Collector at any point of time. The order of Collector also does not disclose that his office had received any such communication and any such communication received by office of the Collector in 2006 is not on Record. The office of Collector ought to have verified their own files and produced it for verifying the correctness in the rival stands.
38. The claim of Shri. Tope that Shri. Gude has been elected as group leader or then claim of Shri. Gude that he was so elected needs to be evaluated in this background. The pleadings that there was meeting on 18.12.2006 and in that meeting unanimously he was so elected has not been substantiated and no such proceeding of any date are filed on record. On the contrary before this Court, learned Counsel Mr. Salunke and Mr. Patil both appearing for respondent no.3 have attempted to urge that Constitution of political party and 1987 Rules do not contemplate ::: Downloaded on - 09/06/2013 17:09:20 ::: 37 wp1124.11 election of group leader at all and the same can be by selection i.e. by nomination. The relevant provisions of 1987 Rules therefore need to be looked into for this purpose. The provisions of 1986 Act as such do not throw any light on the concept of group leader. The said phrase coined as "Leader in relation to Municipal Party" is employed in 1987 Rules. Rule 2 (b-1)(i) define this phrase to mean Councilor "chosen" by each political party and its inclusive part shows that any other Councilor "authorised by it" to act in absence of such chosen leader is included in that definition. Thus, this Rule does not use the word election or elected.
39. This definition also needs to be looked into from Rules in Marathi. In those Rules, for English word "Chosen" word used in Marathi is "Elected". Words in Marathi are "Nivdun Dilela". The leader in relation to Panchayat Samiti Party and Leader of Zilla Parishad Party are separately defined in Rules and though in English word Chosen has been used, the Marathi Rule show the use of word `Nivdun Dilela'. These words in Marathi without any ambiguity indicate "election" only.
40. Constitution of Ambad Municipal party in its clause 1(gh) define group leader to mean a person elected ( may mean selected) by N.C.P. ward members in Ambad Municipal Council ::: Downloaded on - 09/06/2013 17:09:20 ::: 38 wp1124.11 and approved by District President. Respective Counsel appearing for respondent no.3 have urged that word "Nivadlela" used in Constitution also means the candidate selected. Contention is that said word does not necessarily mean election. Clause 2 of the Constitution lays down the obligation of political party and in its opening part it is prescribed that District President has to summon a meeting of ward members elected on N.C.P. tickets before the Collector convenes the meeting for election of President of Municipal Council. In this opening clause, the Marathi words "Nivadnuk and Nivdun alele" both are used. About meaning of Marathi word `Nivadnuk', there is no dispute and even according to learned Counsel appearing for respondent no.3, it means election.
The meeting to be convened is of "Nivdun Aalele Sadasya". It is not in dispute that all ward members of N.C.P. are elected as such and none of them is selected. Thus, word "Nivadun" used in this Rule again indicates election only and nothing else. Clause `A' of this Rule 2 states that in such meeting declaration of formation of municipal party and its associates shall be made. Again there word used in relation to such associate is "Nivadun" and it clearly makes a reference to election. Thereafter in clause (b), the further business to be transacted in that meeting is given. In that clause, it is mentioned that a group leader of ward members or of Aghadi is to be elected (or selected as argued) as per respondent no.3.
::: Downloaded on - 09/06/2013 17:09:20 ::: 39wp1124.11 Again Marathi word used there is "nivad karane". In Rule 3 which deals with the said aspect ,business to be transacted is mentioned as "Nivad of Group Leader of Municipal Councilors of N.C.P.". In later clause word used is "Nivad" and it has to be from amongst the members of N.C.P. party and associates members. When this provision in Constitution are read together, it is apparent that word "Nivad" employed in Marathi in these Rules signifies nothing else but election. If concept of election is to be ignored and it is to be held that it also permit selection, it is apparent that the same word is required to be given two different meanings. Such different meaning is not even warranted by the context. Such different interpretation of any word in Rule/Rules is not accordance with settled norms of interpretation. Therefore the provisions of Constitution read with 1987 Rules (Marathi) clearly show that contentions of Respondent no.3 that Shri. Suresh Gude could have been nominated by Shri. Tope can not be accepted. The group leader is required to be elected by all N.C.P. ward members elected to Ambad Municipal Council, from amongst themselves and then the District President has to give his approval to that election. Thereafter only such elected person can become group leader within the meaning of clause 1(gh) of the Constitution of Ambad Municipal party. Here, as already noted though it is claimed that such business was transacted on 18.08.2006, there is ::: Downloaded on - 09/06/2013 17:09:20 ::: 40 wp1124.11 absolutely nothing to support it. It is therefore difficult to accept that Shri. Suresh Gude has been elected at any point of time as group leader as required by Constitution of political party & therefore by 1986 Act.
41. The other important question which arises in the matter is about the whip of which disobedience is alleged. The relevant pleadings in this respect are in paragraph nos.5 to 7 of the petition as filed before Collector. In paragraph no.5, it is mentioned that N.C.P. declared the candidature of Smt. Jaishree Sodani for the post of President and Shri. Sahebrao Kharath for the post of Vice President and accordingly the nomination papers were filled. As the applicant no.1 before the Collector namely Shri. Suresh Gude happened to be group leader, he issued a whip accordingly and it was served upon 7 ward members personally on 14.06.2009. The other allegations then show effort made to serve this whip dated 14.06.2009 upon the petitioners or their family members and its service by pasting. It is also mentioned that it was published in daily news paper Sakal on 20.06.2009. Then in paragraph no.8, the business transacted in the meeting dated 20.06.2009 has been disclosed.
42. Before proceeding further, it will be appropriate to find out ::: Downloaded on - 09/06/2013 17:09:20 ::: 41 wp1124.11 what is whip. Reference thereto as such is not in definition given in Section 2 of 1986 Act. Section 3 which prescribes the disqualification on the ground of defection stipulates that voting or abstaining from voting in any meeting contrary to any direction issued by political party or aghadi or front to which the Councilor belongs results in disqualification. Therefore, the voting has to be contrary to any directions issued by the political party. There is no dispute that here reference to political party, therefore, is to political party of N.C.P. constituted for Ambad Municipal Council i.e. Ambad Municipal party. Pleadings noted above nowhere show that there was any such decision by Municipal party. Before Collector and before this Court, the petitioners have categorically urged that candidature as such of Smt. Jaishree Sodani was not authorised by Municipal Party and she was candidate of Shri. Tope only.
Leaving aside the word in which contention is raised, it is apparent that the petitioners have come up with defence that there was no decision of Ambad Municipal party to field either Smt. Sodani or then Shri. Kharat as official candidates of Ambad Municipal party.
Decision of political party can be only through resolution passed in a meeting. There is no pleading or proof of any such meeting or resolution. This aspect is totally lost sight of in the process of his consideration by the Collector.
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43. The copies of whips which are annexed along with the Petition for ready reference to this Court are carrying date 14.06.2009. The said whip is on the letterhead of respondent no.2 and his description has been mentioned as group leader of N.C.P. It is signed at the bottom by him and on the left hand side it is addressed to concerned Councilor and said councilor has to sign it above his name at the left hand side bottom corner in token of receipt of that whip.
44. Language in that whip shows that it is Shri. Suresh Gude who has decided the names of Smt. Sodani and Shri. Kharath on behalf of N.C.P. and it is he who has issued the whip. There is nothing to hold that these two persons were resolved to be the official candidates of the Municipal party in the meeting convened prior thereto. The provisions of the Constitution particularly Rule 4 enables group leader to call the monthly meeting of all members of Municipal party. Thus, this whip does not show that decision of Ambad Municipal Party was being communicated to the respective ward members or petitioners for its obedience. It uses present tense every where and hence demolishes even idea of any decision earlier reached by a group of persons or a party.
45. The paper publication dated 20th June, 2009 is totally ::: Downloaded on - 09/06/2013 17:09:20 ::: 43 wp1124.11 different. This communication dated 14.06.2009 is not published in news paper. 20th June, 2009 communication is having title `public notice' and below it are words whip (direction of party). Then it mentions name of Shri. Ankushrao Tope, District President, name of Shri. Suresh Gude as a group leader of Municipal Council, Ambad and name of one Ganesh Raut as group leader of Jalna N.C.P. Party. It is thereafter mentioned that these persons in exercise of their rights were issuing the whip for election to be conducted on 20th June, 2009 for the post of President and Vice President of three Municipal Councils i.e. Bhokardhan Municipal Council, Ambad Municipal Council and Jalna Municipal Council. At the bottom, it is mentioned that same is signed by these three persons. Again this communication also does not show any previous meeting of ward members of Ambad Municipal Council and decision taken therein to field Smt. Sodani and Shri. Kharat as party candidates. It does not mention any whip issued on 14.06,2009 or its attempted service. The document dated 14.06.2009 does not carry any name or signature of District President Shri. Ankush Tope.
46. The consideration of this aspect by Collector is very cryptic.
Provisions of Constitution show that whip can be issued by group leader if he is authorised to do so in writing by District President.
::: Downloaded on - 09/06/2013 17:09:20 ::: 44wp1124.11 The alleged whip dated 14.06.2009 or then the paper publication dated 20th June, 2009 no where show such written authorisation by the District President in favour of Shri. Suresh Gude. In his application for disqualification, Shri. Suresh Gude has not pleaded any previous meeting or resolution of Ambad Municipal party and has not also pleaded any such authorisation by Shri. Ankushrao Tope in his favour. Paper advertisement only carries name of Ankushrao Tope. The Collector has drawn presumption of such authorisation in favour of Shri. Suresh Gude because of documents filed along with disqualification petition before him. It appears that such communication in writing by Shri. Tope to Shri. Gude is produced along with the said petition before the Collector.
When, there is dispute between the parties and in present state of affairs, it was necessary for the Collector to go into details of the legal provisions and to find out whether, whip issued on 14.06.2009 complied with the requirement of 1987 Rules and Constitution of the political party. The contention of petitioners that on 16.06.2009, two members of N.C.P. had filed nomination papers for the post of President again show absence of any previous meeting and an open declaration in favour of Smt. Sodani as official candidate of political party. Language of alleged whip dated 14.06,2009, on the contrary, supports the theory of absence of any such authorization by Shri Tope in favour of Shri Suresh Gudhe. There is nothing on ::: Downloaded on - 09/06/2013 17:09:20 ::: 45 wp1124.11 record to show that any such decision of political party or written authorization in favour of Shri Gudhe was even attempted to be communicated to petitioners before 20.06.2009.
47. The Division Bench Judgment of this Court reported at "1990(3)Bom C.R. 199" (Suresh Madhaorao Bhange and others V/s Collector, Wardha and others) in paragraph no.14 has noted that original party like N.C.P. is a genus whereas the Municipal party like Ambad Municipal Party or political party here is species and sphere of these species is restricted to that particular geographical area over which it has jurisdiction. It is then found that Section 3(1)(a) and (b) of the 1981 Act contemplates species and not genus. The Division Bench therefore has found that it is such Municipal party which forms species which has to issue direction to its members/Councilors. The function of apex body like N.C.P. is only to give direction to its units i.e. species and nothing more.
48. The petitioners have also attempted to show this Court that whip has not been served upon them as required by clause 7 of the Constitution. Clause 7 of the Constitution contemplates service in accordance with Section 325 of 1965 Act. The said provision lays down mode and manner of effecting service of notice ::: Downloaded on - 09/06/2013 17:09:20 ::: 46 wp1124.11 addressed to individuals. It stipulates that service can be effected by tendering the notice to a person to whom it is addressed or when such person is not found by giving or tendering it to some adult member or servant of his family found at his usual place of residence or at his last known place of abode. Its clause (c) contemplates procedure to be followed when service in the above two modes is not feasible or when such person refuses to accept it, by causing the notice to be affixed on some conspicuous part of the building or land, if any, to which the notice relates. Here petitioners have attempted to show that panchanama of alleged pasting as prepared does not reveal that service of whip was disclosed to any family members. They have attempted to show from cross examination that even the name of alleged family members has not been brought on record or could not be disclosed. They have examined family members to show that though the family members were available throughout on 14.06.2009 no body came and they were not offered any notice & no notice was pasted It is also urged that in similar matter in relation to Partur Municipal Council, the service of whip through paper publication is not held valid by very same Collector. The respondents have in addition to the panchanama drawn of alleged pasting have relied upon the paper publication and also attempted to show the service of whip in the house before meeting on ::: Downloaded on - 09/06/2013 17:09:20 ::: 47 wp1124.11 20.06.2009. They have also alleged that video shooting of that meeting and refusal of petitioners in the house is also available.
The Collector has not believed the evidence tendered by the petitioners on the ground that it is evidence of their relatives who are interested in them. I am not inclined to go into more details of this controversy but then it is important to note that the panchas who have witnessed the alleged pasting and drawn alleged panchanama have not been examined before the Collector. Thus respondent 2 & 3 have also examined only witnesses interested in their cause.
49. As this Court has found that alleged communication dated 14.06.2009 is not a whip within the meaning of provisions of 1987 Act and it is also noticed that there is material difference between the whip as issued on 14.06.2009 and as published in news paper on 26.02.2009. Material to constitute it a binding whip is found missing in both. Even if its service is presumed upon the petitioners, its disobedience is not sufficient to attract disqualification legally as contemplated under Section 3(1)(b) of 1986 Act. It may render petitioners liable for disciplinary action by NCP. For very reasons it is not necessary to consider the arguments of Advocate Mr. Deshpande that Collector has placed negative burden upon the petitioners to show that their acts of ::: Downloaded on - 09/06/2013 17:09:20 ::: 48 wp1124.11 defection have not been condoned by political party ie. Ambad Municipal party of NCP.
50. Judgment of the Hon'ble Apex Court reported at "2000 (Supp.) Bom. C.R. 829 (Sadashiv H. Patil V/s Vithal D.Teke and others) shows the scheme of Act and also how the same needs to be construed. In paragraph no. 14, the Hon'ble Apex Court has noted the finding as to the disqualification under the Act and the effect of unseating a person from an elected office and consequences thereof are not individual but also on constituency which he represents. Looking at the penal consequences flowing from an elected councilor being subjected to disqualification and its repercussion on the functioning of the local body as also the city or township governed by the local body, the provisions have been construed strictly. It is declared that a rigorous compliance with the provisions of the 1986 Act and the 1987 Rules must be shown to have taken place while dealing with a reference under Section 7 of the 1986 Act. Consideration in paragraph no.15 shows that in facts before the Hon'ble Apex Court there were no Rules or regulations of Janata Aghadi and the Hon'ble Apex Court noted that had they been there, an effort could have been made to find out "authorisation to issue whip" provided therein. The Hon'ble Apex Court then had asked the learned Counsel for appellant before it to ::: Downloaded on - 09/06/2013 17:09:20 ::: 49 wp1124.11 show any resolution of Janata Aghadi authorising signatories of whip to issue it and it noted that no such resolution was filed either before the Collector or before the High Court or then was shown to it. The contents of whip did not contain any recital spelling out the existence of any such authorisation and hence the Hon'ble Apex Court gathered that therefore there was no such authorisation. It has been held that in absence of such authorization to issue whip, violation thereof would not attract applicability of Section 3(1)(b) of 1986 Act. The Hon'ble Apex Court has found that act contrary to resolution however strongly worded may render delinquent members liable to disciplinary proceedings at party level but he can not incur disqualification under 1986 Act. There must be direction issued and such direction must be either by Municipal party or Aghadi or front to which Councilor proceeded against belonged.
These observations of the Hon'ble Apex Court are attracted with full force even in the present facts.
51. Observations made by the Hon'ble Apex Court show that after formation of Municipal party or Aghadi or Front it gets statutory recognition. It has then found that thereafter the leader of such municipal party is to be elected or appointed and such leader has thereafter to furnish within 30 days from the date of its formation , a statement in writing in Form I to the Collector. Not ::: Downloaded on - 09/06/2013 17:09:20 ::: 50 wp1124.11 only statement of leader of Municipal party is to be filed under Rule 3(1)(a) but then every Councilor in relation to Municipal party before taking seat, has to furnish the statement of particulars and declaration in Form No.III. The information so furnished is to be published in Maharashtra Government Gazette and to be maintained in the records of Collector in register in Form IV under Rule 5. The Hon'ble Apex Court has pointed out that in this manner the evidence of formation of municipal party comes in to existence and any doubts or disputes relating to formation of particular municipal party and member thereof along with the requisite particulars furnished while entering in the register, are ruled out.
The finding in paragraph no.9 about the power to issue whip are on same lines and the Hon'ble Apex Court has noted that authorisation to the person or authority can be determined by looking into such documents which will be available on the record of Collector having been filed accompanying in statement-I under Rule 3(1). The Hon'ble Apex Court has clarified that otherwise availability of such authorisation in this behalf shall have to be proved to the satisfaction of Collector dealing with reference under Section 7 of the Act r/w Rules 6, 7 and 8. In other words, the office of Collector has to cross check such claims with documents already in its custody and thereafter it can proceed further to adjudicate the issue of disqualification. In present matter, such ::: Downloaded on - 09/06/2013 17:09:20 ::: 51 wp1124.11 effort is conspicuously missing though a genuine dispute was raised by the petitioners.
52. Accordingly, it has to be held that though formation of political party of Councilors elected to Ambad Municipal Council on NCP ticket by name Ambad Municipal party can be presumed in the present facts, still election of Shri. Suresh Gude as group leader has not been established. Not only this communication of formation of such municipal party with required details by him to the office of Collector is also not established. Requisite decision in the shape of resolution of Ambad Municipal Party ie. political party authorising issuance of whip for the purpose of election of President and Vice-President on 20.06.2009 is also absent. Written authorisation by District President Shri. Tope in favour of Shri. Suresh Gude to issue such whip and its communication to the petitioners is also not established. Intimation as issued on 14.06.2009 or as published on 20.06.2009 can not be construed as a whip within four corners of 1986 Act or 1987 Rules so as to attract provisions for disqualification as contained in Section 3(1)
(b). The impugned order of Collector dated 25.01.2011 is therefore unsustainable.
53. It is apparent that previous conduct of petitioners pressed into ::: Downloaded on - 09/06/2013 17:09:20 ::: 52 wp1124.11 service to show that they accepted Shri Gudhe as their leader is irrelevant because there is no evidence of any previous whip issued by him & of adherence thereto by the petitioners. Unless & until, election of Suresh Gudhe as group leader in meeting of NCP Councilors in 2006 after general election & prior to meeting convened by Collector to elect president is established, there can not be any estoppel in this connection. Moreover, there has to be a legal whip for regulating the conduct of petitioners in meeting held on 20.06.2009 and in its absence, the argument is misconceived.
"Deeming fiction" noted above can not engulf these aspects.
54. The judgment of this Court reported at " Manoj Bansilal Biyani V/s Sameer Krishnadhan Kart and another (supra) discloses that provisions of Rule 6 of 1987 Rules dealing with verification of pleadings or attestation of documents are held to be only directory. This interpretation of procedural provision will not apply to substantive Sections or Rules dealing with rights & obligations in the 1986 Act. Judgment of the Hon'ble Apex Court reported at "Sunil Poddar & others V/s Union Bank of India (supra) reveals that service of notice of recovery proceedings through newspaper can be deemed to be valid. Division Bench of this Court reported at "Smt. Shilpa Subhash Dhundur V/s Ratnagiri Nagar Parishad and others (supra) shows that when ::: Downloaded on - 09/06/2013 17:09:20 ::: 53 wp1124.11 material on record established service of whip, this Court found that it can not go behind the same in writ proceedings. With respect, I find that later both rulings turn on facts & here in view of absence of a legally valid whip, it is not necessary to dwell more upon it.
55. The impugned order of Collector dated 25.01.2011 is therefore unsustainable. Same is accordingly, quashed and set aside. Needless to mention that the election of Vice President was already subjected to the decision in this Petition and accordingly the said election therefore can not now survive. The petitioners are therefore recruited/restored to their respective offices/position.
56. At this stage, Advocate Mr. Patil for respondent no.3 in Writ Petition no. 1125/2001 prays for stay to the operation and effect of this judgment for a period of four weeks. The request is being opposed by Advocate Mr. Deshpande. However, in the interest of justice, stay to this judgment for four weeks is granted. This order of stay shall cease to operate automatically thereafter.
57. Rule made absolute accordingly with no order as to costs.
(B.P. DHARMADHIKARI) JUDGE gas/wp1124.11 ::: Downloaded on - 09/06/2013 17:09:20 :::