1 W.P.No.3669.10.+1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. WRIT PETITION NO. 3669 OF 2010 1. Khajamiya Maqdumsab Age 55 years, Occupation Business R/o Kundalwadi Ta. Biloli, District Nanded. 2. Linguram S/o Gangaram Narawad, Age 30 years, Occupation Agril., R/o Kundalwadi, Ta. Biloli, District Nanded. 3. Raju S/o Potaji Potankar, Age 40 years, Occupation Business, R/o Kundalwadi, Tq.Biloli, District Nanded. 4. Smt. Savita Poshetti Padkuthalwar, Age 40 years Occupation Household, R/o Kundalwadi, Tq. Biloli, District Nanded. ... PETITIONERS V E R S U S 1. Sunil Ramakant Bejgamwar Age 39 years Ococupation: Business, R/o Kundalwadi, Ta, Biloli,District Nanded. 2. The State Election Commission Maharashtra State, Mumbai. 3. The Returning Officer, i. e. Special Land Acquisition Officer, Upper Painganga Project, Nanded. 4. The Collector, Nanded, District Nanded. ... RESPONDENTS 2 W.P.No.3669.10.+1 ... Mr. P.M.Shah,Sr. Advocate,Instructed by Mr. U.B.Bilolikar,Advocate for Petitioners Mr. P.R.Katneshwarkar, Advocate for respondent No.1. Mr. S.T.Shelke Advocate for respondent Nos.2 and 3. Mrs.Y.M.Kshirsagar,A.G.P.for respondent No.4. ... WITH WRIT PETITION NO. 3680 OF 2010 1. Gangadhar Gangaram Thakkurwar Age 49 years Occupation Agril., R/o Kundalwadi, Tq. Biloli, District Nanded. 2. Smt. Karunabai W/o Laxman Gudlawar, Age 40 years, Occupation Household, R/o Kundalwadi, Ta. Biloli, District Nanded. ... PETITIONERS V E R S U S 1. Sunil S/o Ramakant Bejgamwar Age 40 years Occupation: Business, R/o Kundalwadi, Ta, Biloli,District Nanded. 2. The Collector, Nanded, District Nanded. (Copy to be served through Government Pleader, High Court of Judicature of Bombay Bench at Aurangabad) 3. The Returning Officer/ Special Land Acquisition Officer, Nanded-1 Election of President & Vice- President of Municipal Council, Kundalwadi, Ta. Biloli, District Nanded. 3 W.P.No.3669.10.+1 4. Khajamiya Maqdumsab Age 60 years, Occupation Agril.,R/o Kundalwadi Ta. Biloli, District Nanded. 5. Linguram S/o Gangaram Narawad, Age 50 years, Occupation Agril., R/o Kundalwadi, Ta. Biloli, District Nanded. 6. Raju S/o Potaji Potankar, Age 50 years, Occupation Agril., R/o Kundalwadi, Tq.Biloli, District Nanded. 7. Smt. Savita Poshetti Padkuthalwar, Age 40 years Occupation Household, R/o Kundalwadi, Tq. Biloli, District Nanded. ... RESPONDENTS ... Mr. V.G.Dixit,Sr. Counsel Instructed by Mr. S.M.Vibhute,Advocate for Petitioners Mr. P.R.Katneshwarkar, Advocate for respondent No.1.. Mrs.Y.M.Kshirsagar,A.G.P.for respondent-State. ... CORAM : V.R.KINGAONKAR, J. DATE : 4TH MAY, 2010. ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, both these petitions are heard and are being finally decided at the stage of admission. 2. The Municipal Council elections of Kundalwadi were 4 W.P.No.3669.10.+1 held, wherein out of 17 members, eight (8) members of NCP (Nationalist Congress Party), one (1) from BJP (Bhartiya Janta Party) and one (1) independent had formed a group. It was post election Aghadi. They elected respondent No.1 Sunil Bejgamwar as group leader. He was elected as the Municipal President. It appears that understanding amongst them was that after half of the term i.e. 2 ½ years, office of the President would be given to another member of the group. A meeting was held on 21st December, 2009 to elect president for remaining term of 2 ½ years. At that time, however, the petitioners (of both the petitions) allegedly, did not follow the whip issued by the NCP leader Shri Madhukar Pichad as well as group leader Sunil Bejgamwar. They flauted the whip. Consequently, the leader of the group i. e. respondent No. 1, Sunil Bejgamwar filed Reference under section 67 of the Maharashtra Local Authority Members Disqualification Rules, 1987 and under section 3 of the Maharashtra Local Authority Members Disqualification Act, 1986. He urged to declare the petitioners as disqualified members of the Municipal Council. By the impugned judgment, the learned Collector declared them as disqualified members on the ground that they did not follow the whip issued by 5 W.P.No.3669.10.+1 the leader of the Aghadi. 3. Heard learned Counsel for the parties and learned Assistant Government Pleader. 4. It is not necessary to elaborately reproduce the rival contentions. It would suffice to mention that the learned Collector held that the petitioners were disqualified, for the reason that the complainant i.e. respondent No.1 Sunil Bejgamwar had issued the whip which was binding on the petitioners and because they did not follow the same, they incurred the disqualification. The contention of the petitioners is that the Aghadi was not formed prior to the Municipal elections nor the leadership of respondent No.1- Sunil Bejgamwar was duly verified under section 4 of the Maharashtra Local Authority Members Disqualification Act, 1986. They further contended that they were not legally bound to obey the directions/whip issued by complainant Sunil Bejgamwar. They further asserted that the whip issued by Sunil Bejgamwar was without any legal authority, nor it could be regarded as the whip issued by the NCP party as such, and, therefore, they could not have been disqualified. 6 W.P.No.3669.10.+1 5. The impugned judgment shows that the question whether Sunil Bejgamwar was legally authorised to issue such whip is not specifically addressed to by the learned Collector. The procedure required to be followed under Rule 7(6) of the Maharashtra Local Authority Members Disqualification Rules 1987, is thus- Rule 7 :Procedure - (1)XXXX (2) XXXX (3) XXXX (4) XXXX (5) XXXXX (6) The Commissioner or, as the case may be Collector shall draw up or cause to be drawn up- (i) the substance of the imputations of disqualification into definite and distinct articles or charge; (ii) a statement of the imputations of disqualification in support of each article or charge, which shall contain- (a) a statement of all relevant facts including any admission or confession made by the Councilor or the member, and (b) a list of documents by which, and a list of witness by whom, the articles of charge are 7 W.P.No.3669.10.+1 proposed to be sustained. Perusal of rule 7(6) would make it manifest that the Collector is under legal obligation to draw substance of the imputations of disqualification into definite distinct articles or charges. It is obvious that the Collector must specify the acts for which disqualification may be incurred by the member. Then statement of imputations of the disqualification and material in support of such article or charge is required to be furnished to each of the member against whom such action is contemplated. It is of common knowledge that disqualification of a member is serious matter and the member is likely to be required to face consequences of the drastic action of such disqualification. Obviously, due care is taken by law in providing for such procedure which is normally required to be followed while conducting Departmental Enquiry. Needless to say, quasi judicial authority is required to render findings on each of such charge so framed and served on the member concerned. That has not been done in the present case. At least it may be stated that the learned A.G.P. was unable to pin point from the record, whether such due procedure has been followed. It is pertinent to note that the concerned officer of Collectorate 8 W.P.No.3669.10.+1 alongwith relevant record is present in the Court and learned A.G.P. as well as learned Advocate for the respondent No.1 waded through the relevant material, but could not point out compliance of said procedure. In this view of the matter, there appears inherent defect in following relevant procedure, and as such the impugned judgment suffers from illegality. 6. The learned A.G.P. and learned Advocate for the respondent No. 1 were granted time to locate the position of law which they argued, has been changed, as a result of the amendment. They could not point out as to how and when sub-clause (6) of Rule 7 has been deleted. What appears from the copy of Government publication relied upon by them and the copy of the relevant Government notification, whereby the sub-clause (7) is added, do not show deletion of earlier rule 7 or sub-rule (6). The Notification dated 29.07.2008 shows that, in the rule 7 of the Maharashtra Local Authority Members Disqualification Rules 1987, after sub-rule (6), following sub-rule (7) has been added. “(7) The petition shall be dealt with by the Commissioner, or as the case may be, Collector, as expeditiously as possible and 9 W.P.No.3669.10.+1 endeavour shall be made by him to dispose of the petition within 90 days from the date of receipt of petition” Provided that where any petition could not be disposed of within the said period of 90 days, the Commissioner , or as the case may be, the Collector shall record his reasons, in writing, for not disposing of the petition within the said period.” 7. This addition of rule 7 by itself does not show that earlier provision enumerated in Rule 7 (1 to 6) have been deleted by virtue of such amendment. It also does not show that addition of sub-rule (7) completely substitutes previous rule 7. The counsel for the respondent No.1 submits that there can not be two overlapping rules in the statue book. He contended that previous rule 7 as well as new rule 7 could not be intended to co-exist, simultaneously. He further relied upon copy of the Government publication of the Maharashtra Local Authority Members of Disqualification Rules 1987. 8. Perusal of copy of the Government Notification also does not give clear information as regards deletion of the previous rule 7 in toto, while adding new sub- rule( 7). It is 10 W.P.No.3669.10.+1 obvious that addition of sub-rule (7) is required to be considered so as to make the provisions workable. Purport of addition of sub-rule (7) is to provide for specific time frame, in order to decide the election disputes. Opening words of the sentence, as used in the Government notification in the paragraph No. 2 are most important. It is stated as follows : “2. In Rule 7 of the Maharashtra Local Authority Members Disqualification Rules,1987, after sub rule (6) the following sub-rule shall be added, namely:- “(7) The petition shall be dealt with by the Commissioner, or as the case may be, Collector, as expeditiously as possible and endeavour shall be made by him to dispose of the petition within 90 days from the date of receipt of petition” Provided that where any petition could not be disposed of within the said period of 90 days, the Commissioner , or as the case may be, the Collector shall record his reasons, in writing, for not disposing of the petition within the said period.” 9. The opening sentence of paragraph would therefore make it amply clear that sub-rule (7) was added after existing sub-rule (6) in rule 7. In other words, it was not that original rule 7 was deleted and new rule 7 was 11 W.P.No.3669.10.+1 substituted in its place. That amendment was, therefore, not effected to do away the procedure envisaged in rule 7(6) of the Maharashtra Local Authority Members Disqualification (Amendment) Rules, 1987 Needless to say, there is no overlapping of rule 7 and the previous legal position is not done away with due to the amendment of the sub-rule(7), which is in addition to the procedure prescribed in rule 7(6). 10. So far as the two petitioners in Writ Petition No. 3680 of 2010 are concerned, it may be gathered that they are not members of the Nationalist Congress Party (NCP). It is undisputed that there was no pre-poll Aghadi formed by the petitioners. The whip issued by the respondent No. 1 was not binding on the two petitioners, who have filed Writ Petition No. 3680 of 2010. They could not be held disqualified to continue as members only because they did not follow the whip issued by the respondent No.1. The legal position is explicit from the observations in Sadashiv H. Patil and another Vs. Vitthal D.Teke: District Collector Satara 200(8) SCC 82: 2000 DGLS(Soft)1342. The Apex Court held that whip issued by “Paksha Protod” i.e. Party Spokesman could be binding on the parties, but not on the members of the Aghadi, 12 W.P.No.3669.10.+1 which was post poll coalition. It is amply clear that the petitioners Gangadhar Gangaram Thakkurwar and Smt. Karunabai W/o Laxman Gudlawar were not set up as candidates by any pre-poll Aghadi. They were not, in any case, under obligation to follow the directions of the respondent No.1 during the course of the meeting and as such could not have incurred disqualification. 11. Taking overall view of the matter, it will have to be said that the matter requires de-novo consideration by the Collector, to the extent of disqualification of the petitioners Khazamiya and others. The Collector Nanded will be at liberty, however, to examine legal position pursuant to the procedure enumerated in rule 7 and the amendment herein referred to above. For, the view is taken by this Court regarding mandatory procedure of Rule 7(6) of the said rules, due to non-availability of any material to show that the rule 7(6) is deleted by any amendment. The Collector will have to also examine whether whip was duly issued by the authorised person and was duly served on the petitioners i.e . Khajamiya and others. The disqualification of other two petitioners i.e. Gangadhar Gangaram Thakkurwar and Smt. Karunabai W/o Laxman Gudlawar will have to be, however, set aside. 13 W.P.No.3669.10.+1 12. In the result, the Writ Petition No. 3680 of 2010 is allowed. The disqualification of petitioners Gangadhar Gangaram Thakkurwar and Smt. Karunabai W/o Laxman Gudlawar is set aside. Both of them will be entitled to continue as members of the Municipal Council, Kundalwadi. 13. The Writ Petition No. 3669 of 2010 filed by Khajamiya and others is partly allowed. (a) The impugned order rendered by the Collector Nanded is set-aside. (b) The matter is remanded back to the Collector, Nanded to hold de-novo enquiry and to give findings on the relevant issues by following due procedure. (c) It is made clear that the requirement and to follow added sub-rule (7) shall be from the date of remand. (d) The Collector shall consider the relevant issues including competency of respondent No. 1 Sunil Bejgamwar to issue whip, service of the whip on the petitioners i. e. Khajamiya and others and whether petitioners Khajamiya and 14 W.P.No.3669.10.+1 others were legally bond to follow the direction. (e) All the issues are kept open. (f) The offices of petitioners Khajamiya and others be kept vacant till de-novo decision is rendered by the Collector on merits. (g) The above named petitioners may be allowed to attend the meetings of the Municipal Council, but they shall not cast any vote and also shall not be appointed on any post, during pendency of the election dispute. Sd/- ( V.R.KINGAONKAR ) JUDGE MTK