Bombay High Court
Bajrang Manohar Sonavane And Others vs The State Of Maharashtra And Others on 4 May, 2018
Author: P. R. Bora
Bench: P. R. Bora
1 WP-14213-2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD
WRIT PETITION NO.14213 OF 2017
1. Bajrang s/o Manohar Sonavane,
Age : 46 years, Occu : Agriculturist
and Social Work, R/o. Sarni, Post Javal-ban
Tq. Kaij, Dist. Beed
2. Smt. Mangal Prakashrao Solanke
Age : 61 years, Occu : Agri & Social Work,
R/o. Mohikhed, Tq. Dharur, Dist. Beed
3. Ajay Manikrao Munde
Age : 32 years, Occu : Agri &
Social Work, R/o. Nathra,
Post Kauthali, Tq. Parali, Dist. Beed .. Petitioners
Versus
1. The State of Maharashtra,
Through Secretary,
Rural Development Department,
Mantralaya, Mumbai-32.
2. Hon'ble Cabinet Minister,
Rural Development Department,
Mantralaya, Mumbai-32.
3. Under Secretary,
State of Maharashtra,
Rural Development Department,
Mantralaya, Mumbai-32.
4. Shivaji S/o Eknath Pawar
Age about : 41 years, Occu : Agri
and Social Work, at Zepewadi,
Post Warni, Tq. Shirur (Kasar), Dist. Beed
5. Prakash s/o Vithalrao Kavthekar
Age about : 38 years, Occu : Agri
and Social Work, R/o. Ukhanda,
Tq. Patoda, Dist. Beed
6. Smt. Ashwini w/o. Dnyaneshwar Jarange
Age about : 30 years, Occu : Agri
and Social Work, R/o. Kusllamb,
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Tq. Patoda, Dist. Beed.
7. Smt. Sangita W/o Ramhari Maharnor,
Age about : 30 years, Occu : Agri
and Social Work, R/o. Dadegaon (Mahadevwadi)
Tq. Ashti, Dist. Beed
8. Smt. Mangal W/o Ganpat Doifode
Age about : 32 years, Occu : Agri
and Social Work, R/o. Ieet, Post Pimpalner,
Tq. & Dist. Beed
9. Smt Ashwini w/o Amar Nimbalkar
Age about : 35 years, Occu : Agri
and Social Work, R/o At Ashta (Hari Narayan)
Tq. Ashti, Dist. Beed
10. The Collector, Beed,
District Beed.
11. The Chief Executive Officer,
Zilla Parishad, Beed,
Dist. Beed. .. Respondents
....
Shri S.V. Kanitkar, Advocate, h/f. Shri N.L.Jadhav,
Advocate for Petitioners
Shri A.B. Girase, Government Pleader
for Respondents No.1 to 3 & 10
Shri V.D. Salunke, Advocate for Respondents No.4, 5, 7 & 9
Shri B.N. Patil, Advocate for Respondent no.6
Shri G.K. Thigale (Naik), Advocate for Respondent No.8
Shri V.M . Chate, Advocate for Respondent no.11
.....
CORAM : P. R. BORA, J.
Reserved on : 03.05.2018
Pronounced on : 04.05.2018
PER COURT :
1. By filing the present petition, the petitioners have
challenged the order dated 18-10-2017 passed by the
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Honourable Minister (Rural Development), State of
Maharashtra, whereby the Honourable Minister has granted
stay to the decision rendered by the Collector, Beed, on 16-10-
2017 in Petition No.1/2017. Petition No.1/2017 was filed by
the present petitioners under Section 7 of the Maharashtra
Local Authority Members' Disqualification Act, 1986 (hereinafter
referred to as `the Act of 1986') read with Section 3 of the said
Act, along with Rule 6 of the Maharashtra Local Authorities
Members' Disqualification Rules, 1987, with a prayer to
disqualify respondent nos. 4 to 9.
2. The learned Collector, after having conducted
enquiry in the Petition so filed and after having heard the
respective parties, allowed the said petition and declared
present respondent nos. 4 to 9 to be disqualified to hold the
post of Member of Zilla Parishad, Beed, for violation of the
provisions of Section 3 (1) (b) of the Act of 1986. Aggrieved by
the decision rendered by the learned Collector, respondent nos.
4 to 9 approached the Honourable Minister (Rural
Development) and, as stated above, the Honourable Minister,
on 18-10-2017 granted stay to the decision rendered by the
learned Collector on 16-10-2017.
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3. The order of stay passed by the Honourable Minister
on 18-10-2017 is assailed by the petitioners on various
grounds. Shri S.V.Kanitkar, learned Counsel appearing for the
petitioners, submitted that the impugned order is the patent
example of arbitrary exercise of powers by the Honourable
Minister. The learned Counsel, referring to the provisions of the
Act of 1986, the Rules framed thereunder, as well as the
provisions under the Representation of the People Act, 1951,
the Constitution of India, the Code of Civil Procedure, and the
Maharashtra Zilla Parishads and Panchayat Samities Act, 1961,
submitted that the impugned order passed by the Honourable
Minister, if considered in the light of the provisions of the
aforesaid Acts, Rules as well as the Constitution of India,
cannot be sustained and deserves to be set aside. The
learned Counsel submitted that the amendment came to be
brought in Section 7 of the Act of 1986 and sub clause (3)
came to be added in Section 7, thereby providing an appeal to
the State Government against the decision of the
Commissioner, or the Collector, as the case may be, at the
instance and insistence of the Honourable Minister, namely,
Smt. Pankaja Mundhe, the Rural Development Minister of the
State of Maharashtra.
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4. Learned Counsel further submitted that because of
such an amendment though the appeal is provided to the State
Government against the decision rendered by the Collector or
the Commissioner, as the case may be, under Section 7 of the
Act of 1986, there is no provision in the Act of 1986 or the
Rules thereunder for empowering the Honourable Minister to
grant stay to the decision rendered under Section 7 of the Act
of 1986. As such, according to the learned Counsel, the
impugned order passed by the Honourable Minister granting
stay is without jurisdiction and, hence deserves to be set aside.
5. Learned Counsel, inviting my attention to the
provisions of Section 116A and 116B of the Representation of
the People Act, 1951, submitted that in absence of any such
provision made in the Act of 1986, the Honourable Minister
could not have granted stay to the decision rendered by the
learned Collector, Beed, on 16th of October, 2017. Learned
Counsel, referring to and relying upon the judgment of the
Honourable Apex Court in the case of Jyoti Basu and others Vs.
Debi Ghoshal and others ( AIR 1982 SC 983), submitted that
the Act of 1986 being the Special Act, the Common Law
provisions would not apply. Learned Counsel submitted that the
appeal filed by the present respondent nos. 4 to 9 before the
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Honoruable Minister under Section 7(3) of the Act of 1986,
being a statutory proceeding, neither the Common Law nor the
principles of equity would apply to such proceeding but only
those Rules which the Statute makes, would apply. Learned
Counsel submitted that it is a special jurisdiction and the special
jurisdiction has always to be exercised in accordance with the
Statute creating it. Learned Counsel further submitted that in
absence of any provision in the Act of 1986, vesting any power
in the Honourable Minister to grant stay to the order impugned
before him / her, the order so passed by the Honourable
Minister has to be held without jurisdiction and has to be,
therefore, set aside.
6. Learned Counsel further submitted that respondent
nos. 4 to 9 had ceased to be the Councillors of Zilla Parishad,
Beed, after they are disqualified by the learned Collector, Beed,
for violation of Section 3(1B) of the Act of 1986. Learned
Counsel referred to the provisions of 16(1A) of the Maharashtra
Zilla Parishads and Panchayat Samities Act, 1961. Referring to
and relying upon the judgment delivered by the Division Bench
of this Court in the case of Narsingrao Gurunath Patil and
others Vs. Arun Gujarathi, Speaker and others ( 2003(1)
Bom.C.R. 363) and more particularly to the discussion made in
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paragraph No. 51A and paragraph No.53 of the said judgment,
submitted that there is limited scope while deciding an appeal
under Section 7(3) of the Act of 1986, and the appellate
authority is not expected to interfere unless the decision of the
Collector is held to be perverse.
7. Learned Counsel submitted that the impugned order
passed by the Honourable Minister is most cryptic and does not
contain any reasoning for staying the order of the learned
Collector. Learned Counsel, inviting my attention to the
provisions incorporated in the Xth Schedule of the Constitution,
submitted that the Anti Defection Law must be so interpreted as
to eliminate the mischief rather than to permit it. The learned
Counsel further submitted that from the information as has
been provided to the petitioners, it is discernible that when the
Honourable Minister passed the impugned order, neither the
appeals as envisaged under Section 7(3) of the Act of 1986
were preferred nor any applications were there seeking stay to
the order passed by the learned Collector; the fact apart,
whether the Honourable Minister was possessing such powers
or not. Learned Counsel further submitted that merely on the
letter submitted by respondent nos. 4 to 9, a blanket order has
been passed by the Honourable Minister.
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8. Learned Counsel further submitted that the
impugned order, if read as it is, it cannot be interpreted to
mean that the Honourable Minister has granted stay; what it
indicates is that the Honourable Minister has directed the Under
Secretary to grant stay to the decision of the Collector.
Learned Counsel further submitted that the petitioners had filed
the caveat application before the Honourable Minister but
inspite of that without issuing any notice to the caveator, the
impugned order has been passed in undue haste. On this count
also, according to the learned Counsel, the order has to be set
aside.
9. Learned Counsel further submitted that even if it is
assumed that the learned Minister was possessing the power to
grant stay to the decision of the Collector, in no case, the
blanket stay could have been granted by the Honourable
Minister in view of the provisions as to disqualification on the
ground of defection. Learned Counsel again invited my
attention to the Xth Schedule of the Constitution of India and
submitted that the object of introducing 52nd Amendment Bill
for inclusion of the Xth Schedule in the Constitution is primarily
to curb political defection which has been a matter of national
concern. Learned Counsel referred to the decision of the
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honourable Apex Court in the case of Smt. Indira Nehru Gandhi
V. Shri Raj Narain and Anr. wherein the Honourable Apex Court
has declined to continue the absolute stay granted by the High
Court and had ultimately granted the conditional stay. Learned
Counsel submitted that ordinarily in all such matters,
conditional stay has been granted. Learned Counsel submitted
that even in such eventuality, the impugned order granting
blanket stay has to be set aside and to be substituted with
conditional order.
10. Shri V.D.Salunke, learned Counsel appearing for
respondent nos.4, 5, 7 and 9, opposed the submissions made
by the learned Counsel for the petitioners. Learned Counsel
supported the impugned order. Learned Counsel submitted that
the present petition being filed challenging the interlocutory
order, cannot be entertained and the remedy for the petitioner
was to approach the same authority which had passed the said
order praying for setting aside the said order or for its
modification. Learned Counsel submitted that without availing
the said remedy, the petitioners have straightway approached
this Court by filing the present writ petition. Learned Counsel
submitted that the petition is premature and, therefore, cannot
be entertained. Learned Counsel further submitted that there is
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no specific bar in the Act of 1986 or the Rules thereunder, for
application of the provisions under the Code of Civil Procedure.
In absence of any such specific bar, according to the learned
Counsel, the provisions of Code of Civil Procedure Code; more
particularly as is there in Order 41 Rule 5, can very well be
invoked and no error, therefore, can be found in the impugned
order.
11. Learned Counsel further submitted that without
adding the Honourable Minister as party to the present petition,
the petitioners cannot make allegations against her, and behind
her back. Learned Counsel further submitted that similarly, the
constitutional validity of the amendment brought in Section 7 of
the Act of 1986, thereby adding sub clause (3) providing an
appeal to the State against the decision of the Collector or the
Commissioner, as the case may be, cannot be questioned in
this petition. Learned Counsel submitted that nothing has been
submitted by the petitioners whether they have challenged the
constitutional validity of the said provision by filing appropriate
petition therefore. Learned Counsel further submitted that the
petitioners are avoiding to appear before the Honourable
Minister and to proceed with the appeal and are unnecessarily
protracting hearing of the said appeal. The learned Counsel
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submits that such conduct of the petitioners needs to be
considered while deciding the present petition also. Learned
Counsel further submitted that the stand taken by the present
petitioners that they would not appear before the Honourable
Minister is unconstitutional. Learned Counsel submitted that
respondent nos. 4 to 9 have exercised the statutory remedy of
filing an appeal and nothing wrong has been committed by the
Honourable Minister in granting stay to the impugned order.
12. Learned Counsel Shri Patil, appearing for
respondent no.6, submitted that the Collector has committed
undue haste in passing order in Petition No.1/2017 and
substantial grounds are raised by the respondent in an appeal
filed by him before the Honourable Minister. Learned Counsel
submitted that it was not necessary for recording reasons by
the Honourable Minister while granting ad interim order.
Learned Counsel submitted that the remedy for the petitioner
was to participate in the proceeding of appeal and get the
appeal decided.
13. Shri Thigale, learned Counsel appearing for
respondent no.8, submitted that the petitioners are estopped
from raising an objection that the provisions of Code of Civil
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Procedure would not be applicable when they themselves have
invoked the Code of Civil Procedure by filing caveat in the
matter. Learned Counsel further submitted that there is no
universal principle that no unqualified stay can be granted.
Learned Counsel submitted that he is adopting the arguments
advanced by learned Counsel Shri V.D.Salunke. Learned
Counsel concluded his argument stating that no interference is
required in the ad interim stay granted by the Honourable
Minister.
14. Shri A.B.Girase, learned Government Pleader,
invited my attention to Section 108 of Code of Civil Procedure
and submitted that in view of the said provision, it is explicit
that the provisions of Code of Civil Procedure would apply to the
proceedings of appeal before the Honourable Minister under the
Act of 1986. The said powers, according to the learned
Government Pleader, would include the power of granting
interim stay to the order impugned in the appeal. Learned
Government Pleader further submitted that the allegation made
by the petitioners that without there being appeal or
application, the Honourable Minister has passed the impugned
order is incorrect. Learned Government Pleader submitted
that in the reply filed by the Government, it has been amply
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clarified that respondent nos. 4 to 9 have preferred the appeals
before the Honourable Minister and have also filed applications
for stay whereupon the order has been passed by the
Honourable Minister. Learned Government Pleader submitted
that no case is made out by the petitioners for causing any
interference in the impugned order.
15. Learned Counsel Shri Chate appearing for
respondent Zilla Parishad did not make any submission.
16. I have given due consideration to the submissions
made by the learned Counsel appearing for respective parties.
I have perused the impugned order and the documents placed
on record. It has been vehemently argued on behalf of the
petitioners that the impugned order is without jurisdiction since
there is no provision in the Act of 1986 vesting the Honourable
Minister with the power of granting any stay to the decision
impugned in the appeal before her and as such deserves to be
quashed and set aside. As against it, with equal vehemence, it
has been unanimously argued on behalf of the contesting
respondents that the present writ petition is not maintainable
since it challenges the ad interim order passed by the
Honourable Minister.
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17. None of the aforesaid submission has impressed me
much.
18. After having considered the documents filed on
record, it is difficult to agree with the submissions made on
behalf of the contesting respondents that the order passed by
the Honourable Minister on 18-10-2017 is an ad interim order.
The petitioners have filed on record the documents received to
them from the Desk Officer in the Rural Development
Department of the State Government. The document which is
at page No.143 of the paper book reveals that the Honourable
Minister has passed an order in an appeal thereby granting stay
to the decision rendered by the Collector subject to the final
decision of the appeal. Though it was sought to be contended
by the learned Counsel appearing for the contesting
respondents that the order passed by the Honourable Minister
was passed on the application and has to be interpreted to
mean that it was subject to the final order to be passed on the
said application, the said contention is liable to be rejected.
The Under Secretary to the State, vide letter dated 18-10-
2017, addressed to the Divisional Commissioner of Aurangabad
Division, Aurangabad, as well as to the District Collector and to
Shri Prakash Vitthal Kavathekar, etc.(5), has to be interpreted
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to mean that stay has been granted by the Honourable Minister
till the final decision of the appeal. The other documents filed
on record also reveal that thereafter the matter has been fixed
for hearing of the appeal and not for hearing of any application
for stay.
19. Similarly, though the learned Counsel for the
petitioners has strenuously argued that the order passed by the
the Honourable Minister is without jurisdiction since in the Act
of 1986 or the Rules thereunder, there is no such specific
provision, I am not inclined to accept his argument also. It
appears to me that the authority invested with the powers to
hear the appeal implicitly possesses the jurisdiction to pass the
incidental orders which may also include the right to pass an
order staying the effect and operation of the order impugned in
the appeal filed before it subject to certain conditions or in
appropriate case without condition by recording reasons
therefor.
20. The moot question involved in the present petition,
according to me, is whether the authority i.e. the Honourable
Minister (Rural Development) has exercised the discretion
judiciously while passing the impugned order and whether the
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impugned order reflects the application of mind by the
Honourable Minister while passing the said order. It is not in
dispute that one line order has been passed by the Honourable
Minister which reads as follows:
"m-l- (xzk-fo-)
vafre vkns'k
gksbZi;Zar ftYgkf/kdkjh
chM ;kaP;k fu.kZ;kyk
LFkfxrh n~;koh-
("Stay to the order passed by the
Collector, Beed, till final decision.")
Lok{kjh@&
(iadtk xksihukFk eqaMs)
ea=h]
xzkefodkl vkf.k efgyk o ckyfodkl]
egkjk"Vª 'kklu] ea=ky;] eqacbZ&400 032-"
21. As I mentioned earlier, the order has to be
interpreted to mean that the decision of the learned Collector is
stayed till final decision of the appeal. From the documents on
record, more particularly, the documents at page Nos. 144 to
148, it is quite clear that the communication was addressed to
the Honourable Minister by the present contesting respondents,
requesting the Hon'ble Minister to grant stay to the decision of
the Collector, Beed, whereby they were disqualified to hold the
post of Member of Zilla Parishad, Beed. The record shows that
respondent no.5 has only filed a separate stay application and
on the said application also the same one line order has been
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passed by the Honourable Minister.
22. The order passed as aforesaid apparently does not
show or carry any averment therein that the Honourable
Minister has read the impugned order, or petition or has
perused the document before passing the said order. It also
does not reflect that the Honourable Minister had heard the
applicant or any other person on behalf of the applicant before
passing the said order. Admittedly, no reasons are recorded by
the Honourable Minister while passing such order. The question
arises can such an order be sustained. Law is well settled that
the absence of reasons renders an order unsustainable.
Recording of reasons is a basic principle of natural justice and
every judicial order must be supported by reasons, may be in
brief, irrespective of the fact whether the order is final or
interim. The order must disclose conscious application of mind
to the effect that the decision making authority has applied the
law to the fact brought before it correctly. Cryptic order
indicates non application of mind. A non speaking, unreasoned
order cannot be considered to be valid.
23. Though the petitioners have seriously disputed the
fact of filing of the appeals by respondent nos. 4 to 9 while the
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impugned order was passed by the Honourable Minister,
without going into the said controversy, I presume that such
appeals were filed. Admittedly, these appeals are filed under
the amended provisions of the Act of 1986, challenging the
order passed by the Collector, Beed, in a reference under
Section 7 of the said Act whereby he has disqualified the
appellants therein from holding the post of Member of Zilla
Parishad, Beed, on account of violation of the provisions under
Section 3 (1B) of the Act of 1986. Thus, the dispute involved
in the present petition is the alleged political defection. It would
not be out of place to mention that the object of introducing
Fifty Second Amendment Bill for inclusion of Tenth Schedule in
the Constitution was primarily to curb political defection which
was considered to be a matter of national concern.
24. The Statement of Objects and reasons appended to
the Bill stated thus:
"1 The evil of political defections has been a matter of
national concern. If it is not combated, it is likely to
undermine the very foundations of our democracy and the
principles which sustain it. With this object, an assurance
was given in the Address by the President to Parliament
that the Government intended to introduce in the current
session of Parliament an anti-defection Bill. The Bill is
meant for out-lawing defections and fulfilling the above
assurance.
2 The Bill seeks to amend the Constitution provide that an
elected member of Parliament or a State Legislature, who
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has been elected as a candidate set up by a political party
and a nominated member of Parliament or a State
Legislature, who is a member of a political party at the time
he takes his seat or who becomes a member of a political
party within six months after he takes his seat would be
disqualified on the ground of defection if he voluntarily
relinquishes his membership of such political party or
abstains from voting in such House contrary to any
direction of such party or is expelled from such party. An
independent member of Parliament or a State Legislature
shall also be disqualified if he joins any political party after
his election. A nominated member of Parliament or a State
Legislature who is not a member of a political party at the
time of his nomination and who has not become a member
of any political party before the expiry of six months from
the date on which he takes his seats shall be disqualified if
he joins any political party after the expiry of the said
period of six months. The Bill also makes suitable
provisions with respect to splits in, and mergers of, political
parties. A special provision has been included in the Bill to
enable a person who has been elected as a presiding officer
of a House to sever his connection with his political party.
The question as to whether a member of a House of
Parliament or State Legislature has become subject to the
proposed disqualification will be determined by the
presiding officer of the House; where the question is with
reference to the presiding officer himself, it will be decided
by a member of the House elected by the House in that
behalf.
3. The Bill seeks to achieve the above objects."
25. As observed by the Full Bench of this Court in the
case of Shah Faruq Shabir and others Vs. Govindrao Ramu
Vasave ( (2016) (5) Mh.L.J. 436), the statements of objects
and reasons clearly lead one to conclude that defection is anti
ethical to democracy. It betrays the fundamental promise of
loyalty to party and its philosophies. Elected Councilor is
supposed to implement the ideals and the philosophies of the
political party by which his candidature was set up.
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26. I have reproduced statements of objects and
reasons appended to the Fifty Second Amendment Bill and the
observations made by the Full Bench to emphasize that the
issue involved in the appeal as well as in the Reference decided
by the Collector was of a serious nature. In the Reference /
Petition presented before the Collector, Beed, there was an
allegation against the present respondent nos. 4 to 9 that they
violated the whip of the party and thereby have incurred the
disqualification under Section 3(1B) of the Act of 1986.
Learned Collector, after having given opportunity to the parties
to the said lis of filing the statements, affidavits, opportunity to
adduce the evidence and to advance the arguments, decided
the said Reference and thereafter, has passed the order on 16-
10-2017, thereby disqualifying the present respondent Nos. 4
to 9 from holding the post of Councilor of Zilla Parishad, Beed.
27. The question arises whether the effect and
operation of the said order could have been stayed by appellate
authority absolutely without assigning any reason therefor. The
inevitable answer, in my opinion, is `No'. At the preliminary
stage, the appellate Court cannot so lightly dismiss the illegality
of respondent nos. 4 to 9 ( the appellants in the appeal before
the Honourable Minister) as held by the learned District
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Collector. I do not dispute that there may be solid grounds to
be agitated against the decision so rendered by the learned
Collector. The possibility of setting aside the said judgment also
cannot be ruled out. However, until the findings as are recorded
by the learned Collector are upset, hold good. As such, it
appears to me that the impugned order passed by the
Honourable Minister which has nullified the order passed by the
Collector, absolutely even before hearing of the appeal, cannot
be allowed to exist.
28. I may usefully refer the observations made by the
Honourable Shri Justice V.R.Krishna Iyer in paragraph no.10 in
an order passed by His Lordship in the case of Smt. Indira
Nehru Gandhi V. Shri Raj Narain and Anr. ( A.I.R. 1975 SC
1590), which read as under:
'10. At the first flush I was disposed to prolong the
'absolute stay' granted by the High Court, moved
not only by what Shri Palkhivala had urged but by
another weighty time factor that the appeal itself, in
the light of the directions I have already given
yesterday, may well be decided in two or three
months. But on fuller reflection I have hesitated to
take that course. After all, the High Court's finding,
until upset, holds good, however weak it may
ultimately prove. The nature of the invalidatory
grounds upheld by the High Court, I agree, does not
involve the petitioner in any of the graver electoral
vices set out in Section 123 of the Act. May be they
are only venial deviations but the law, as it stands,
visits a returned candidate with the same
consequence of invalidation. Supposing a candidate
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22 WP-14213-2017
has transported one voter contrary to the legal
prohibition and even though he has won by a huge
plurality of votes his election is set aside. Draconian
laws do not cease to be law in court but must alert a
wakeful and quick-acting legislature. So it follows
that I cannot, at this preliminary stage, lightly
dismiss the illegality of the election as held by the
High Court. But more importantly, I am disinclined
to set store by Shri Palkivala's 'Private justice'
submission (to borrow his own phrase) because the
ultimate order I propose to make, if I may even
here anticipate, substantially preserves the position
of the petitioner as Member of Parliament and does
not adversely affect her legal status as Prime
Minister.'
29. I reiterate that there is an implicit requirement of
observance of the principles of natural justice that the order or
decision must be expressed in such a manner that reasons can
be spelt out from such decision. The unreasoned order or the
order passed without recording reasons amounts to violation of
principles of natural justice. It also amounts to arbitrary
exercise of power vested in the authority. In so far as the
impugned order is concerned, according to me, it is an example
of arbitrary exercise of power by the Honourable Minister.
30. It further appears to me that in the matters of
disqualification or political defection some more care needs to
be taken while passing any order.
31. It is apparent that, the Hon'ble Minister has ignored
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23 WP-14213-2017
the said aspect. The Hon'ble Minister before passing the said
order must have heard all concerned and with all seriousness
must have considered the rival contentions, must have applied
law to the facts brought on record and then should have passed
a speaking order. As there is no reasoned order, nor any
finding is recorded by the Hon'ble Minister while passing the
impugned order, it is very difficult for this court to ascertain as
to which were the facts, which warranted the Hon'ble Minister
to grant blanket stay to the order passed by the learned
Collector. It will also not be possible for me to accept the
contentions of the learned Counsel appearing for the parties as
there is no merited order in existence.
32. In the above situation, only one course can be
adopted i.e. to remand the matter for fresh disposal by the
Hon'ble Minister. Hence, the following order.
ORDER
1. The orders passed by the Honourable Minister ( Rural Development) of the State of Maharashtra, on 18-10-2017 in the respective appeals impugned in the present petition whereby the Honourable Minister has granted stay to the decision rendered by the Collector, Beed, on 16-10-2017, in ::: Uploaded on - 04/05/2018 ::: Downloaded on - 06/05/2018 01:28:46 ::: 24 WP-14213-2017 Petition No.01/2017, are quashed and set aside.
2. The matter is remitted back to the Honourable Minister. The Honourable Minister shall take fresh decision on the stay applications in accordance with law after giving due opportunity of hearing to the present petitioners.
3. All points raised in the present petition by the respective parties are kept open. The parties can raise the same before the Honourable Minister who shall consider the same in the backdrop of the statutory provisions as well as the Constitutional mandate and the observations made in the present order and shall pass reasoned order.
4. The parties to appear before the Honourable Minister on 15th of May, 2018.
Writ Petition stands disposed of in aforesaid terms.
(P.R.BORA) JUDGE ...
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33. After pronouncing the order in the present writ petition, Shri. Thigale, learned Counsel for respondent no.8 prayed for continuing the effect of the order of stay granted by the Hon'ble Minister till 15th of May, 2018 i.e. till the date of the appearance before the Hon'ble Minister. Learned Counsel submitted that today is the last working day and the summer vacation would start from tomorrow. Learned Counsel further submitted that election for local body constituency of Latur, Beed and Osmanabad for the Maharashtra Legislative Council is to be held on 21st of May, 2018 and the names of respondent nos.4 to 9 are included in the voters list. Learned Counsel submits that in such circumstances, if the protection is not continued, the said respondents will be deprived from exercising their valuable right to vote in the said election.
34. Shri. Kanitkar, learned Counsel for the petitioners opposed for granting any such request. The learned Counsel referred to the Division Bench judgment of this Court in the Case of Pandurang Dagadu Parte v. Ramchandra Baburao Hirve and others reported in AIR 1997 BOMBAY 387. Learned Counsel submitted that in the said matter though the request ::: Uploaded on - 04/05/2018 ::: Downloaded on - 06/05/2018 01:28:46 :::
26 WP-14213-2017 was made to the Hon'ble Division Bench by the petitioners to stay the effect of the order passed by the Division Bench for approaching the Hon'ble Apex Court, no blanket stay was granted and it was granted subject to the condition that during such period, the petitioners though will be entitled to attend the meetings but will not be entitled to deliberate vote and draw their remuneration. Learned Counsel submits that if such an order is passed, the petitioners may not have any objection.
35. The order passed by the Hon'ble Minister has been set aside by this Court, since it is unreasoned order. This Court has also observed that passing of such order amounts to violation of principles of natural justice and it also amounts to arbitrary exercise of power by the Hon'ble Minister. In such circumstances, I am not inclined to accept the request made by the learned Counsel to continue effect of the stay order as it is.
36. However, I do not see any difficulty in passing the order in tune with the order passed by the Division Bench in the case of Pandurang Dagadu Parate (cited supra) relied upon by the learned counsel for the petitioners. In various other similar matters pertaining to disqualification, this Court has stayed the effect and operation of the order of disqualification subject to ::: Uploaded on - 04/05/2018 ::: Downloaded on - 06/05/2018 01:28:46 ::: 27 WP-14213-2017 certain conditions and not blanketly. As such, I am inclined to pass the following further order, -
ORDER
i) It would be open for present Respondent Nos.4 to 9 to attend the meetings of Zilla Parishad held, if any, till 15 th May, 2018, but Respondent Nos. 4 to 9 will not be entitled to cast their vote and or draw their remuneration during the said period.
(P.R.BORA) JUDGE ...
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