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. 2 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. 3 02. 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 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, 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 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 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 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. 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 10 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 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, 12 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 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) ........... 14 3. (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 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. 16 09. 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 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 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 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. 20 13. 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 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