Bombay High Court
Sahebrao S/O Narayan Kharat vs The Collector on 29 October, 2010
Author: R. M. Borde
Bench: R. M. Borde
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8272 OF 2010
1. Sahebrao S/o Narayan Kharat,
Age : 54 Years, Occu. : Business,
R/o Maligalli, Ambad,
Tq. Ambad, Dist. Jalna.
2.
Bagwan Tamijabee Shaikh Ahmed,
Age : 58 Years, Occu. : Household,
R/o Bagwan Mohalla, Ambad,
Tq. Ambad, Dist. Jalna.
3. Shaikh Khurshid Ahemad Gulam Jilani,
Age : 44 Years, Occu. : Business,
R/o Ambad, Tq. Ambad,
District Jalna. .. .. Petitioners
Versus
1. The Collector, Jalna, Acting as
Authority under the Maharashtra
Local Authority Members
Disqualification Act.
2. Suresh S/o Ramchandra Gude,
Age : Major, Occu. : Business,
R/o Babulal Gude Nagar, Ambad,
Tq. Ambad, Dist. Jalna.
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3. Kailas S/o Kadajirao Bhore,
Age : Major, Occu. : Business,
R/o Yeshwanti Colony, Ambad,
Tq. Ambad, Dist. Jalna.
4. Municipal Council, Ambad,
Through Chief Officer,
Municipal Council, Ambad,
Tq. Ambad, Dist. Jalna.
5.
Presiding Officer/Chief Officer,
Municipal Council, Ambad,
Tq. Ambad, Dist. Jalna. .. .. Respondents
Shri S. B. Deshpande and Shri S. B. Joshi, Advocate for
Petitioners.
Shri K. J. Ghute Patil, A.G.P. for the Respondent No. 1.
Shri V. S. Salunke and Shri S. S. Tope, Advocate for Respondent
Nos. 2 and 3.
Shri S. S. Patunkar, Advocate for the Respondent No. 4.
CORAM : R. M. BORDE, J.
Date on which the judgment reserved : 06/10/2010.
Date on which the judgment pronounced : 29/10/2010.
JUDGMENT :
. Rule. Rule returnable forthwith. Heard by consent of learned counsel for the parties at the stage of admission.
::: Downloaded on - 09/06/2013 16:35:51 ::: 302. The petitioners who are the members of Municipal Council, Ambad, are raising exception to the order passed by the District Collector, Jalna, holding them disqualified to continue as the members of Municipal Council, in view of the provisions of the Maharashtra Local Authorities Members Disqualification Act 1987 (hereinafter referred to as the "Disqualification Act").
03. The general elections of the municipal council were held in the year 2006. The petitioners herein are the elected member of municipal council belonging to Nationalist Congress Party.
Initially the President of the Municipal Council, Ambad, was elected for a period of two and half years. The said period came to an end in the year 2009 and the election for remaining term of the Presidentship was held on 20.06.2009. At the elections, one Mrs. Sulbha Kulkarni belonging to Congress Party as well as the petitioner No. 3 were elected as President and Vice President respectively. The respondent Nos. 2 and 3, who are also members of the municipal council belonging to Nationalist Congress Party presented a petition as contemplated U/Sections 3 of the "Disqualification Act" read with Rule 6 of the Members Disqualification Rules to the Collector, Jalna. It is contended by the petitioners that, the petitioners have voted contrary to the ::: Downloaded on - 09/06/2013 16:35:51 ::: 4 whip issued by the group leader as well as the District President of the Nationalist Congress Party and as such, have incurred disqualification within meaning of provisions of the "Disqualification Act". It is stated in the petition that Mr. Ankushrao Tope is the District President of the Nationalist Congress Party. There are ten members belonging to Nationalist Congress Party elected as the members of municipal council. All the elected member of municipal council including the petitioners herein are the members of municipal party formed and registered in accordance with provisions of Act and rules. The Nationalist Congress Party had declared the candidature of one Smt. Jayshree Sodani and Sahebrao Narayan Kharat, the petitioners herein for the post of President and Vice President respectively. The respondent No. 2 being the group leader of the municipal party was authorized to issue whip mandating the members of the municipal party to vote at the elections in favour of the party nominee. The whip was accepted by seven members, however, as the petitioners herein were not found at their respective houses and the family members of the petitioners refused to accept the whip, the same was affixed on the front door of the respective houses of the petitioners and panchanama was recorded on 14.06.2009. It is also further contended that, ::: Downloaded on - 09/06/2013 16:35:51 ::: 5 with a view to make the petitioners aware of the directives of the party, the whip was also published in the daily news paper Sakal on 20.06.2009. It is further contended in the petition that prior to commencement of the meeting for election of President and Vice President of the municipal council, the group leader, respondent No. 2 herein tried to serve the whip on the petitioners, however, they refused to accept and further stated that they are not bound to obey the whip. This incident is stated to have been video graphed. In the elections held for electing the President and Vice President of the municipal council, petitioners have voted contrary to the directives of the party and disobeyed the whip, as a result of which the nominee of the Nationalist Congress Party at the election has suffered defeat. It is further stated in the petition that the lapse on the part of the petitioners has not been condoned by the party and as such, they have incurred disqualification within meaning of provisions of the "Disqualification Act".
04. The petitioners herein, while opposing the application tendered by the respondents herein to the Collector, have disputed the status of Shri Ankushrao Tope as the District President of the Nationalist Congress Party and respondent ::: Downloaded on - 09/06/2013 16:35:52 ::: 6 No. 2-Suresh Ramchandra Gude as the group leader of the Ambad Municipal Council party. It is contended that respondent No. 2 is not elected as a group leader in accordance with the provisions of Constitution of party and as such, he had no authority to issue whip. The contention that the petitioners have refused to accept the whip have been controverted by them.
It is contended that petitioner No. 1 had tendered his nomination paper for the post of Vice President during the same period, however, it is alleged by the applicants before the Collector/respondents herein that, they were unavailable in Ambad town at relavent time. Petitioner No. 1 was the nominee for the post of Vice President on behalf of Nationalist Congress Party and he tendered his nomination paper during the process of election. In such circumstances, it would be difficult to digest the contention that he was unavailable in the town during the election period. The other petitioners have also adopted similar stand. The petitioners have claimed ignorance in respect of candidature of Mrs. Jayshree Sodani as the nominee for the post of President on behalf of Nationalist Congress Party. The petitioners have also seriously disputed the panchanama drawn as token of affixing the whip at the respective residences of the petitioners. The petitioners thus contend that, there is no ::: Downloaded on - 09/06/2013 16:35:52 ::: 7 material to substantiate the contentions raised in the application tendered by the respondents with the Collector seeking disqualification of the petitioners and the application is not legally sustainable.
05. On consideration of the pleadings of the parties, the Collector framed charges for consideration and the parties were directed to lead evidence. There were four witnesses examined on behalf of the applicants before the Collector (respondents herein), whereas, petitioners herein examined six witnesses on their behalf. On consideration of evidence led by the parties, the learned Collector, after providing an opportunity of hearing to the parties, came to the conclusion that the applicants have substantiated their contentions and as such by impugned order passed on 30th August, 2010, held the petitioners herein disqualified to continue as members of the municipal council.
06. The petitioners have raised following objections to the order passed by the Collector :
I. The order passed by the Collector is cryptic and does not disclose any reason in support of the findings recorded therein. It is contended that, the Collector while passing ::: Downloaded on - 09/06/2013 16:35:52 ::: 8 order, which has serious consequence of rendering an elected representative of the municipal council disqualified, is obliged to record reasons in support of his decision.
However, the order passed by the Collector, does not disclose any reason to support the conclusion drawn by him in the judgment.
II.
It is contended that the applicants before the Collector have neither proved that Mr. Tope is the District President of Nationalist Congress Party or that Mr. Gude is elected as group leader of the Nationalist Congress Party and that he was authorized to issue a whip.
III. It is seriously disputed that the petitioners were properly served with the alleged whip. There is no proper finding recorded by the Collector in respect of service of whip on the petitioners.
IV. There is no material placed on record to reach a conclusion that Mrs. Sodani was the official candidate of the Nationalist Congress Party and this fact was made known to the petitioners and inspite of knowledge, they have voted contrary to the party directives.::: Downloaded on - 09/06/2013 16:35:52 ::: 9
07. The learned counsel appearing for the respondents have supported the order passed by the Collector and contended that the Collector has passed a well reasoned order and there is sufficient material placed on record to substantiate the contentions raised by the applicants.
08. Certain provisions of the Disqualification Act and Rules, which are necessary to be considered for determination of controversy, are quoted as below :
THE MAHARASHTRA LOCAL AUTHORITY MEMBERS DISQUALIFICATION ACT, 1987
1. .............
2. In this act, unless the context otherwise requires,-
(a) "aghadi" or "front" means a group of persons who have formed themselves into party for the purpose of setting up candidates for election to a local authority;
(b) .......................
(c) .......................
(d) .......................
(e) .......................
(f) .......................
(g) .......................
(h) .......................
(i) "municipal party", in relation to the Councillor belonging to
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any political party or aghadi or front in accordance with the Explanation to Section 3 means-
(i) in the case of a councillor of a Municipal Corporation, the group consisting of all the councillors of the Municipal Corporation for the time being belonging to that political party or aghadi or front in accordance with the said Explanation.
(ii) in the case of a councillor of a Municipal Council, the group consisting of all the councillors of the Municipal Corporation for the time being belonging to that political party or aghadi or front in accordance with the said Explanation.
(j) "original political party", in relation to a councillor or a member, means the political party to which he belongs for the purposes of sub-section (1) of Section 3;
Sec. 3. (1) Subject to the provisions of Sections 4 and 5, a councillor or a member belonging to any political party or aghadi or front shall be disqualified for being a councillor or a member-
(a) if he has voluntarily given up his membership of such political party or aghadi or front ; or ::: Downloaded on - 09/06/2013 16:35:52 ::: 11
(b) if he votes or abstains from voting in any meeting of the Municipal Corporation, Municipal Council, Zilla Parishad or, as the case may be, Panchayat Samiti contrary to any direction issued by the political party or aghadi or front to which he belongs or by any person or authority authorized by any of them in this behalf, without obtaining, in either case, the prior permission of such political party or aghadi or front, person or authority and such voting or abstention has not been condoned by such political party or aghadi or front, person or authority within fifteen days from the date of such voting or abstention:
Provided that, such voting or abstention without prior permission from such party or aghadi or front, at election of any office, authority or committee under any relevant municipal law or the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 shall not be condoned under this clause.
6. ....................
7. If any question arises as to whether-
(a) a councillor of a Municipal Corporation;
(b) a councillor of a Municipal Council; or
(c) a councillor of a Zilla Parishad; or
(d) a member of a Panchayat Samiti,
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has become subject to disqualification under this Act, the question shall be referred-
(i) in the case of a councillor of a Municipal Corporation to the Commissioner, and
(ii) in the case of any other councillor or member, to the Collector;
and the decision of the Commissioner, or as the case may be Collector, shall be final.
THE MAHARASHTRA LOCAL AUTHORITY MEMBERS DISQUALIFICATION RULES, 1987
1. ...................
2. ...................
3. (1) The leader of each municipal party or a Zilla Parishad in relation to a councillor and the leader of Panchayat Samiti in relation to a member (other than a municipal party or a Zilla Parishad party or a Panchayat Samiti party consisting of only one member) shall, within thirty days from the date of commencement of these rules or, where such party is formed after such date, within thirty days from the date of its formation, or in either case, within such further period as the ::: Downloaded on - 09/06/2013 16:35:52 ::: 13 Commissioner, in the case of a councillor of the Municipal Corporation, or the Collector, in the case of any other Councillor or member may for sufficient reason allow, furnish the following information to the Commissioner, or, as the case may be, to the Collector, namely :-
(a) a statement in writing containing the name of members of such party together with other relevant particulars regarding such members as prescribed in Form I, and the names and designations of the members of such party who have been authorised by it for communicating with the Commissioner or, as the case may be, Collector for the purposes of these rules:
(b) a copy of the rules and regulations (whether known as such or a Constitution or by any other name), of the municipal party, Zilla Parishad party of the Panchayat Samiti party concerned, as the case may be; and
(c) where such party has any separate set of rules and regulations (whether known as such or as constitution or/by any other name) also a copy of such rules and regulations.
3. (2) ...........
3. (3) ...........
::: Downloaded on - 09/06/2013 16:35:52 ::: 143. (4) ...........
3. "(5) Where a councillor in relation to a municipal party or a Zilla Parishad party and a member in relation to a Panchayat Samiti party votes or abstains from voting in any of the meetings of the Municipal Corporation, Municipal Council, Zilla Parishad or, as the case may be, Panchayat Samiti contrary to any direction issued by the political party or aghadi or front to which he belongs or by any person or authority authorised by it in this behalf, without obtaining in either case, the prior permission of such party, person or authority, the leader of such municipal party or Zilla Parishad party or as the case may be, Panchayat Samiti party, or where such Councillor or member is the leader or, as the case may be, the sole member of such municipal party, Zilla Parishad party or Panchayat Samiti party, such councillor or, as the case may be, member, shall as soon as may be thereafter and in any case within thirty days from the date of such voting or abstention, inform the Commissioner or, as the case may be, the Collector in Form II whether such voting or abstention has or has not been condoned by such party, person or authority."
4. [(1) (a) Every Councillor in relation to a municipal ::: Downloaded on - 09/06/2013 16:35:52 ::: 15 party or Zilla Parishad party and a member in relation to a Panchayat Samiti party who is holding office as such on the commence of the Act in the Municipal Corporation, Municipal Council, Zilla Parishad or, as the case may be, Panchayat Samiti shall furnish to the Collector within thirty days from the date of commence of these rules or within such further period as the Commissioner or, as the case may be, the Collector may for sufficient reason allow statement of particulars and declaration in Form III.
(b) Every Councillor in relation to a municipal party or a Zilla Parishad party and a member in relation to a Panchayat Samiti party after the commence of the Act who is elected to the Municipal Corporation, Municipal Council, Zilla Parishad or, as the case may be, Panchayat Samiti before taking his seat, shall be furnished to the Commissioner, or, as the case may be, the Collector within thirty days from the date of the declaration of the election results or within such further period as the Commissioner or, as the case may be, the Collector may for sufficient reasons allow a statement of particulars and declaration in Form III.
::: Downloaded on - 09/06/2013 16:35:52 ::: 1609. In order to held a member of municipal council disqualified on the ground of defection, it is required to be proved that :
(i) the said member of municipal council is a member belonging to any political party or aghadi or front and that he either votes or abstained from voting in the meeting of municipal council contrary to the directions issued by the political party or aghadi or front to which he belongs and that such voting or abstention has not been condoned by the political party or aghadi or front. What is required to be proved is that, there is a political party or aghadi or front within the meaning of provisions of the Disqualification Act.
(ii) the group leader of the political party or aghadi or front who was authorized to issue a whip or directives, who issued the whip and the same was served on the concerned member and
(iii) the concerned member or the member of municipal council has voted contrary to the directives.
10. In the instant matter, petitioners have disputed status of respondent No. 2 as a group leader of the municipal party.
Petitioners have also disputed status of Shri Ankushrao Tope, as District President of Nationalist Congress Party. The Constitution of the municipal party which is alleged to be tendered to the Collector, defines party leader as "the member of ::: Downloaded on - 09/06/2013 16:35:52 ::: 17 municipal council elected amongst the members belonging to Nationalist Congress Party and approved by the President".
Clause 3 of the Constitution provides that, the group leader would be elected from amongst the members of the municipal council, belonging to Nationalist Congress Party in a meeting convened by the District President. The group leader is authorized to issue a whip in accordance with all the written directions of the District President. It is contented by the petitioners that, the respondent No. 2 was not elected as a group leader in accordance with the Constitution, nor it has been proved that Mr. Ankushrao Tope is the District President of the Nationalist Congress Party.
11. In order to rebut the contentions raised by the petitioners, there is evidence led by the respondents herein (the applicants before the Collector). Shri Ankushrao Tope has examined himself and stated before the Collector that he is District President of the Nationalist Congress Party and in a meeting convened in accordance with the provisions of the Constitution, the respondent No. 2 herein is elected as a group leader. The petitioners herein, however, have pointed out certain discrepancies in the evidence of the witnesses and have ::: Downloaded on - 09/06/2013 16:35:52 ::: 18 contended that the respondent No. 2 herein is not elected as a group leader, but is appointed by Shri Ankushrao Tope. It is a matter of appreciation of evidence, as to whether the respondent No. 2 herein is elected as a group leader and his election as a group leader was communicated to the Collector as contemplated by Rules. There is also evidence placed on record to substantiate that the Constitution of the municipal party was tendered to the Collector and the Collector was also informed about the election of the group leader as contemplated by Rules.
12. The another disputed question raised in the petition is in respect of service of whip. It is contended by the petitioners that, it is highly improbable to draw an inference that petitioner No. 1, who had tendered his nomination paper for the post of Vice President, can be stated to be away from Ambad during the relevant period. The contentions raised by the applicants before the Collector (respondents herein) that, the petitioners were away from Ambad and were not available in Ambad town and the family members of the concerned petitioners refused to accept the whip, as such, it was affixed on the respective houses of the concerned members/petitioners herein, is seriously disputed.
The panchanamas drawn in respect of affixing party ::: Downloaded on - 09/06/2013 16:35:52 ::: 19 directives/whip at the respective houses of the petitioner, according to them, is fabricated and not worth placing reliance.
On the contrary the respondents contend that, the petitioners herein had made up their mind to disobey the party directives.
The petitioner No. 1, although, was a party nominee for the post of Vice President, voted contrary to the directives of the party.
Even at the election of the Vice President, the act of indisciplined on the part of the petitioner No. 1 is of such high degree that he did not cast vote at the election of Vice President for himself, although, he was a party nominee. It is contended that the whip was also published apart from the alternate mode of service, in the news paper Daily Sakal. It was tried to be served prior to the commencement of the meeting, but petitioners refused to accept the same. All these aspects go to show that the petitioners were determined to disobey the party directives. The factum of the petitioners having voted to a candidate belonging to Congress Party at the election of President of Municipal Council has not been disputed by them. What was required to be proved by the applicants before the Collector (respondents herein) that, the respondent No. 2 is the group leader and he issued directives as per the instructions of the District President and that the directives (whip) was properly served on the petitioners.
::: Downloaded on - 09/06/2013 16:35:52 ::: 2013. Now turning to the judgment delivered by the District Collector, it appears that, the Collector has framed four points for consideration :
(i) Whether there existed a municipal party in accordance with the provisions of the "Disqualification Act" ?
(ii) Whether a whip was issued in respect of elections of President and Vice President in the meeting convened on 20.06.2009 by the competent person ?
(iii) Whether the whip issued was served on the concerned members (petitioners herein) ?
(iv) Whether they have recorded evidence contrary to the directives issued by the party and whether the said act has not been condoned by the political party or any person authorized in that behalf within 30 days and whether such communication is issued in Form No. II to the Collector ?
So far as point No. 4 is concerned, there is no dispute that the petitioners have cast their vote in favour of a member other than party member and the said act has not been condoned by the political party. There is also ample evidence in respect of formation and registration of the municipal party. The only thing that is disputable is in respect of the authority to issue whip having been vested with the respondent No. 2 herein and ::: Downloaded on - 09/06/2013 16:35:52 ::: 21 the factum of service of whip on the petitioners herein.
14. The learned Collector, in his judgment has recorded the details of evidence of each of the witnesses and at the end of the discussion, has reproduced the points framed for determination and thereafter proceeded to record reasons. On perusal of reasons recorded by the Collector, it does appear that, there is absolutely no discussion of the evidence, nor the Collector has recorded his reasoning in support of his findings on the relevant issues. In the initial part of the judgment, the Collector proceeds to record in verbatim the oral evidence tendered by the witnesses. However, while recording findings on the issues, the Collector has failed to substantiate the reasons to support the findings recorded by him. What was expected of the Collector is to discuss the evidence of both the parties and record his reasons for accepting or rejecting the contentions of either of the parties.
He is also expected to make reference to the relevant documentary evidence while recording findings on the issues.
The judgment delivered by the Collector and the findings recorded by him are not supported by satisfactory reasons. The petitioners as well as the respondents, while arguing the matter, adverted to the evidence recorded by the Collector as well as ::: Downloaded on - 09/06/2013 16:35:52 ::: 22 brought to my notice the documentary evidence placed before him. However, in exercise of extraordinary jurisdiction under Article 227 of the Constitution of India, it would not be appropriate for this Court to appreciate the evidence and record findings. It is in fact, responsibility of the Collector to appreciate the evidence in detail and record his conclusion based on such appreciation. The Collector is expected to weigh the evidence led by both the parties, documentary as well as oral, and record his findings, as regards acceptability of the evidence tendered by either of the parties and base his conclusion on proper appreciation of evidence. In the instant matter, I am of the view that, Collector has not at all recorded proper reasons. The mere recording details of the oral evidence recorded by him cannot be equated with the appreciation of evidence for the purposes of recording findings in the matter. The objection raised by the petitioners, that the judgment delivered by the Collector does not disclose any reasons to support the findings recorded by him, is acceptable.
15. Although, the petitioners as well as respondents have invited my attention to the oral evidence recorded in the matter and have also made submissions in reference to the documentary ::: Downloaded on - 09/06/2013 16:35:52 ::: 23 evidence, as I am expecting the Collector to deal with the matter afresh and record proper reasons, it would not be desirable to make comments touching the merits of the controversy.
16. It would be appropriate to advert to the observations of the Supreme Court in the matter of Sadashiv H. Patil v. Vithal D. Teke and others reported in 2000 (Supplementary) Bom. C. R. 829 equivalent to 2000(8) SCC page 82. In para 9, 14 and 15 of the judgment, it has been observed thus :
09. The disqualification with which we are concerned is contemplated by Clause (b) of sub-
section (1) of Section 3 of the Act. Voting or abstaining from voting in any meeting of the Municipal Council may entail disqualification, if:- 1) such voting or abstention is contrary to any direction issued by (a) the political party or Aghadi or front to which he belongs, or (b) by any person or authority authorised by the political party or Aghadi or front in this behalf; 2) such voting or abstention is not accompanied by a prior permission of such political party or Aghadi or front or person or authority having been obtained previously or condoned subsequently within 15 days from the date of such voting or abstention. Condoning is not permissible if such voting or abstention is not preceded by prior permission and is relatable to election of any office, authority or committee under the relevant ::: Downloaded on - 09/06/2013 16:35:52 ::: 24 Municipal Law. Thus, the power to issue a direction, popularly called a whip, in order to attract penalty of disqualification has to be issued either by the political party or by Aghadi or front to which the Councillor belongs. The political party or Aghadi or front may act collectively or may act through any person or authority. In the later case the person or authority must be authorised by the political party or Aghadi or front in this behalf, i.e., for issuing any direction (whip). If the political party, Aghadi or front has any rules or regulations whether known as such or a constitution or called by any other name then the authorisation of the person or authority can be determined by looking into such document which would be available on the record of the Collector having been filed as accompanying the statement in Form I, under Rule 3 (1), else the factum of such authorisation in this behalf having been given to the person or authority issuing the direction or whip shall have to be proved to the satisfaction of the Collector dealing with a reference under Section 7 read with Rules 6, 7 and 8.
14. A finding as to disqualification under the Act has the effect of unseating a person from an elected office held by him pursuant to his victory at the polls in accordance with democratic procedure of constituting a local authority. The consequences befall not only him as an individual but also the constituency represented by him which would cease to be represented on account of his having been disqualified. Looking at the penal consequences flowing from an elected Councillor being subjected to disqualification and its repercussion on the ::: Downloaded on - 09/06/2013 16:35:52 ::: 25 functioning of the local body as also the city or township governed by the local body the provisions have to be construed strictly. A rigorous compliance with the provisions of the Act and the Rules must be shown to have taken place while dealing with a reference under Section 7 of the Act.
17. Reference also can be made to a judgment of the Division Bench of this Court in the matter of Narsing G. Patil and others Vs. Arun Gujrathi Speaker and others reported in 2003(1) Bom. C. R. 363, it has been observed thus :
51. The avowed object of the Tenth Schedule is to discourage unprincipled defections which is political and social evil. The interpreting the Tenth Schedule, we should bear in mind the principles in Haydon's case as applied in (Bengal Immunity Company Ltd. V. State of Bihar), AIR 1955 S.C. 661 :
(at page 674):
"(22) It is a sound rule of construction of a statue firmly established in England as far back as 1584 when (Heydon's), case 1584(3) Co. Reb 7A(V) was decided that :
"..................for the sure and true interpretation of all sttutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered :
1st: What was the common law before the ::: Downloaded on - 09/06/2013 16:35:52 ::: 26 making of the Act.
2nd: What was the mischief and defect for which the common law did not provide.
3rd: What remedy the Parliament hath resolved and appointed to cure the disease of the common wealth, and 4th: The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and 'pro privato commodo' and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, 'pro bono publico'."
51-A. It is clear that the evil which was sought to be remedied by the Parliament was the one resulting from widespread practice of unprincipled floor crossing by the legislators. This evil was sought to be remedied by inserting the Tench Schedule in the Constitution. The anti-defection law must be so interpreted as to eliminate the mischief rather than to promote it. If interpretation of para 2(1)(a) of the Tench Schedule as suggested by the petitioners Counsel is accepted it would virtually defeat the very object of the Tench Schedule."
18. As I have recorded above, I find that the Collector, while dealing with the matter, has not recorded reasons in support of ::: Downloaded on - 09/06/2013 16:35:52 ::: 27 the findings on the material issues. The Collector dealing with the matter is supposed to record findings of facts based on appreciation of evidence and has failed to do so. The concerned parties have already led sufficient evidence before the Collector, but the Collector has not discussed the same. It would not be appropriate and proper for this Court to record any finding on appreciation of evidence for the first time in absence of there being any reasoned order supporting the findings recorded by the Collector. It would be appropriate to remand the matter back to the Collector for deciding the same afresh and record proper findings supported by reasons. The Collector is expected to hear the parties and pass the reasoned order. The Collector while deciding the matter would obviously bear in mind the observations of the Apex Court in the matter of Sadashiv H. Patil v. Vithal D. Teke and others as well as the Division Bench of this Court in the matter of Narsing G. Patil Vs. Arjun Gujrathi Speaker and others.
19. Reliance can be placed on the judgment in the matter of Laxman Tukaram Choudhari and others Vs. State of Maharashtra reported in 2003 (Supplementary) Bom. C. R. page 567. In the reported matter, the Collector has carelessly ::: Downloaded on - 09/06/2013 16:35:52 ::: 28 and light heartedly dealt with the question, and that his order did not indicate application of judicious mind to the points raised or conscious application of mind. This Court was compelled to remit the matter back to the Collector. In paragraph 15 and 16 of the judgment it is observed thus :
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 ::: Downloaded on - 09/06/2013 16:35:52 ::: 29 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.
In the instant matter also, as the order passed by the Collector does not disclose any reasons in support of the findings recorded by him, there is no alternative except to remit the matter back to the Collector for fresh disposal in accordance with law.
20. It also cannot be lost sight of the fact that the legislative intent in bringing about anti-defection law is to curb the practice of unprincipled floor of crossing by the elected members, however, the evil is required to be remedied by putting proper interpretations to the provisions of law with a view to advance the intent of legislature in bringing about anti-defection law.
The observations of the Division Bench of this Court in the matter of Narsing Patil also cannot be overlooked. The Anti-
::: Downloaded on - 09/06/2013 16:35:52 ::: 30defection Law must be so interpreted as to eliminate the mischief rather than to promote it. The Collector, while dealing with the matter would without fail be guided by the principles laid down by the High Court and the Supreme Court.
21. For the reasons recorded above, the impugned order passed by the Collector on 30th August, 2010 is quashed and set aside and the matter is remanded back to the Collector for rendering decision in accordance with provisions of law. The parties shall cause their appearance before the Collector on 09th November, 2010. The Collector shall hear the oral submissions made by the parties if any and shall proceed to decide the matter in accordance with law and keeping in mind the observations made in this judgment. The Collector shall decide the matter finally before 30th November, 2010. Rule is accordingly made absolute.
In the facts and circumstances of the case, there shall be no order as to costs.
[ R. M. BORDE, J. ] bsb/Oct. 10 ::: Downloaded on - 09/06/2013 16:35:52 :::