Bombay High Court
Laxmikant Tukaram Chaudhari And Ors. vs State Of Maharashtra And Ors. on 20 December, 2002
Equivalent citations: 2003(4)MHLJ150
Author: A.B. Naik
Bench: A.B. Naik
JUDGMENT A.B. Naik, J.
1. Heard. Rule. By consent of Advocates for the parties. Rule taken up for final hearing forthwith.
2. This group of writ petitions arises out of a common order passed by the Collector, Jalgaon, on 3-12-2002.
3. For disposal of these petitions, it is not necessary for me to refer to all the facts in detail, however, relevant facts to understand controversy in these petitions are as follows. The parties will be referred to as per their status in the Disqualification petition Nos. 1146, 1147 and 1148 of 2001.
4. The petitioners and respondent Nos. 3 to 17 were elected as councillors of Municipal Council, Jalgaon. After the said elections, Municipal Council is constituted and from the facts, it appears that some of the members have parted from 'Group'/'Aghadi' which was formed at the time of general election. It is also not disputed that the provisions of Maharashtra Local Authority Members' Disqualification Act, 1966 and the Maharashtra Legal Authority Members Disqualifications Rules, 1987 are applicable (hereinafter referred to as Act and rules, respectively).
5. It was noticed by some members of the Council that some of the elected councillors from a 'Group'/'Aghadi', which was formed at the time of election, deserted/separated themselves from that 'Group'/'Aghadi'. This act of the parted councillors gave an occasion to some members of the council to approach the Collector, by filing the three Disqualification Petitions under Section 7 of the Act read with Rule 6 of the Rules.
6. On receipt of petition under Section 7 read with Rule 6, the Collector, took cognizance of the matter and issued summons/notices to the respondents. On receipt of notices, respondents in respective petitions filed applications raising preliminary points/objections regarding maintainability of the Disqualification Petitions (hereinafter referred to as objection petitions).
7. The petitioners resisted the objection petitions by filing their say. They contended that the objection petitions are required to be rejected as there is no ground for filing such an application. They contended that even if in the Disqualification Petition there may be some lacunae or objections, as the same are not of serious nature and can be cured. With these contentions, they prayed for rejection of the objection petitions.
8. The Collector heard all the parties and by the impugned order, he rejected all the three applications filed by the respondents and held that disqualification petitions are maintainable. He observed that whatever lacunae/ defects that are pointed out in the objection petition can be rectified as the objections are not of serious nature. He permitted the petitioners to rectify the lacunae. With these observations and directions, the Collector dismissed the application and directed the respondents to file their Written Statement within three days from the date of the order.
9. On behalf of the petitioners in all the petitions, though different Advocates appeared. Mr. R. N. Dhorde, Adv. i/b Mr. A. M. Gaikwad, Adv. for petitioners in Writ Petition No. 5196/2002 made submission for and on behalf of all the petitioners in the group of petitions. He submitted that under disqualification Rules, the Collector has to consider whether the disqualification petition complies with the provisions of Rules 6 and 7 of the Rules. He submitted that without following the mandatory provision of Rule 7, the Collector straight way issued summons to the respondents. On receipt of summons, the respondents by filing three different applications raised preliminary objections regarding maintainability of the petitions raising contentions that the applications filed by the petitions do not conform with the statutory requirement as provided under Rule 6. Shri R. N. Dhorde, learned Adv. took me through the objection petitions and the reply filed therein. He also criticized the order by stating that by a cryptic order, the Collector disposed of the objection petitions. He submitted that bare perusal of Rule 6 would reveal that the Rules cast an obligation on the Collector to scrutinise and find out whether the application so filed are in conformity with the statutory requirement. As that was not done, the respondents by the respective applications raised the objection and pointed out that the applications lack statutory requirements. Here it was necessary for the Collector to go to each of the objection so raised in the objection petition and find out, which are the objections are of serious nature, it sustained the disqualification petition results in dismissal at the threshold. Shri R. N. Dhorde, learned Adv. contended that the result of disqualification petition being drastic one, which results in unseating the elected candidate which has serious repercussions, therefore, he submitted that the obedience of the Rule is a must and if the petition can be disposed of at the threshold it will be in the interest of all concerned, with this object, the objections petitions are filed by pointing out various lacunae and shortcomings in the applications. Therefore, in such a situation, the Collector, should have considered the objections so raised very seriously a meticulously by applying his judicious mind, he contended, the order so passed reflect that he has not dealt with the objections raised in the objection petition one by one, after dealing so with it, then the Collector should have recorded the finding indicating : (1) which are the objections are of minor nature, (2) which are the objections though not minor in nature but can be curable and (3) which are the objections which cannot be curable and if found valid, disqualification petitions can be dismissed at the threshold, as contemplated under Rule 7(2). He submitted that cryptic order passed by the Collector rejecting the objection petition clearly shown and demonstrate non-application of mind by the Collector to the objections so raised and the reply filed to those applications by the petitioners.
10. Shri. P. N. Shah, learned Sr. Counsel, instructed by S/Shri Parag Barde, Adv. and Savant, Adv., in reply to submissions advanced by Mr. R. N. Dhorde, learned Advocate for the petitioners, justified the order passed by the Collector. He contended that on perusal of the objection petition and reply filed, the Collector found that the objections which are raised are not that much serious even, if upheld, will not result in dismissal of the disqualification petition at the threshold. He submitted that in fact the Collector has considered the lengthy submissions which are advanced by the learned Advocate appearing for the respective parties and also considered the various judgments cited and relied upon by the respective advocates and on those submissions, he found that the objections so raised are not so serious and therefore, he proceeded to direct the respondent to file their WS. He further contended that once notice issued by the Collector to the respondents, it has to be presumed that the Collector has considered the provisions of Rules 6 and 7 and then he had proceeded further. He, therefore, contended that the Collector has properly exercised his jurisdiction in rejecting the objection petitions and this court in the petition filed under Article 226 of the Constitution may not interference in the said order.
11. Shri V. S. Ghatge, AGP, appearing for the Collector, is not in a position at least to demonstrate whether the Collector has decided the objections by applying his mind by taking into consideration the statutory obligations. He made no submissions.
12. By giving anxious consideration to the contentions raised by learned Adv. for the petition and the learned Senior Counsel for the respondents, I find considerable substance in the contentions of Shri R. N. Dhorde, learned Adv. for the petitioners. On prima facie reading Rules 6 and 7 and penal consequences following the result of the disqualification petition which is filed under Section 7 of the Act read with Rule 7 of the Rules, I am of the opinion that rigorous compliance is always required and the order must indicate that the presiding authority on careful and objective analysis of the facts brought forward by conscious application of mind and then has considered the objections from all angles and then passed the order either rejecting or accepting the objections. On going through the impugned order, precisely, the order is lacking in all above said aspects. The order does not indicate (1) that the Collector has analyzed the objections vis-a-vis reply filed, and (2) applied his mind to the objections raised and submissions advanced with support of authorities cited. This observation of mine is indicative of the fact that the Collector has very cursorily and in lighthearted manner has dealt with the question, for which there is no reply coming forward from Shri P. M. Shah, learned Senior Counsel for the respondents and Mr. V. B. Ghatge, learned AGP for the State. In my judgment, therefore, the impugned order does not indicate that the Collector has applied his judicious mind to the points raised and apparently, there is no conscious application of mind by the Collector; even the impugned order, does not reflect that the Collector was aware of Rule 6 and 7 of the Rules.
13. Once it is held that the impugned order is passed without application of mind, and ignoring statutory provisions and Rules 6 and 7, then this court can interfere in the said order.
14. Reading Rules 6 and 7, it is clear that it was permissible for the Collector to decide the objection objectively and then he should have passed a reasoned order and by recording findings either accepting the objections or rejecting the objections in the light of the submissions that are advanced by the parties before him. In my view, therefore, the order suffers from legal infirmity and the order does not disclose any valid reasons for overruling the objection petitions and directing the parties to rectify the objections. It was necessary for the Collector to point out or to notify about the objections so raised by pointing out which are the objections/lacunae, those can be cured, which are the objections even if not cured does not affect the maintainability of disqualification petition and those objections if upheld result in dismissal of the disqualification petition. In absence of any detailed findings, it is not possible for this court to ascertain on what ground the Collector has rejected the objection petition, on perusal of the Rules 6 and 7 which provides several requirements to be complied with by the petitioner filing the disqualification petition. The scheme of Rule 6 definitely cast an obligation on the Collector to scrutinize the applications so filed under Section 7 of the Act read with Rules 6 and 7 and then, proceed to determine the question so raised. In my judgment, therefore, cryptic order indicates non-applicability of mind on the facts and law governing the disqualification petition. Therefore, such a non-speaking, un-reasoned order cannot be considered to be a valid order.
15. The object of judicial review under Article 226 of the Constitution of India by the High Court either of administrative action or of the judgment/orders passed by quasi judicial authority the court has to ascertain whether the decision given in consonance with the law governing field and whether the authority committed any error of law that means the decision making authority must understood it correctly. The law which regulates decision making authority while doing so, the order must disclose conscious application of mind and the decision making authority has applied the law to the fact brought before it correctly. In present case, these requirements are absent. The scope of judicial review, is concerned, with the reviewing not the merit of the decision in support of which the petition is filed, but the decision making process by the authority while dealing with the impugned order this court is not acting as an appellate authority by appreciating the evidence on record. Therefore, the decision taken is to be judged from above referred principles.
16. Applying the well known principle of judicial review, in my judgment, the Collector should have, with all seriousness, considered rival contentions applied the law to the facts brought on record and then passed a speaking order. As there is no reasoned order, nor proper findings are recorded on the basis of the record produced and submissions made before him, it is very difficult for this court to ascertain as to which are the facts which warranted the collector to overrule/reject the objection petitions. As there is no well reasoned and merited order, it will not be possible for me to accept the contention of the learned Senior Advocate for the contesting respondents.
17. Faced with above situation, only one recourse can be adopted i.e. to remand the matter for fresh disposal by the Collector.
18. As the matters are being remanded to the Collector to pass fresh order, he shall give opportunity to both the parties to make their submissions and then record a reasoned order either upholding the objection or rejecting the objections and then to find out whether the disqualification petition can be proceeded with as provided in Rules 6 and 7 of the Rules. The Collector shall dispose of the objections filed by the respondents within two weeks. Mr. P. M. Shah, learned Senior Counsel, on instructions of the advocate on record, makes a statement that 26-12-2002 is the date fixed by the Collector for further orders. Shri V. B. Ghatge, learned AGP informs that the Presiding Officer (Collector) is on leave and will resume duty only on 4-1-2003. Under the Act, only the Collector has to hear the dispute. As the Collector is on leave, the two weeks time granted will start from the date on which he resumes his duties. The Collector shall decide the preliminary objections on or before 15-1-2003. Parties are directed to appear and mark their presence by attending the offence of the Collector on 20-12-2002, as per the date fixed earlier. I hope and trust that the parties will not seek unwanted adjournments. The Collector also shall see that the objections must be heard and disposed of before the above said date.
19. In this group of petitions, several points are raised. I have not touched those points as the impugned order is set aside on the ground of non-application of mind and non-adopting proper procedure in dealing the objection. All points are kept open. Parties can raise the same before the Collector who will consider it with the back drop of statutory provisions when he resumes the hearing of these petitions.
20. For the above stated reasons, rule is made absolute in above terms, however, there shall be no orders as to the costs.
21. The learned AGP Shri Ghatge to inform the Collector about this order.