1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD LETTERS PATENT APPEAL NO.151 OF 2010 IN WRIT PETITION NO.3879 OF 2009 Mrs. Rajnibai Baburao Gharte, R/o- At Post-Samode, Tq-Sakri, Dist-Dhule. ...APPELLANT. VERSUS 1) Kiran s/o Gulabrao Patil, R/o-Mehergaon, Tq-Dhule, Dist-Dhule, 2) The District Collector, Dhule. ...RESPONDENTS. ... Shri.V.J. Dixit, Senior Counsel with Shri. P.D. Bachate Advocate for Appellant. Shri.P.M. Shah, Senior Counsel i/b. Shri. S.P. Shah and Shri. Amol Sawant Advocate for Respondent No.1. Shri.S.V. Kurundkar, Additional Government Pleader with Shri. S.D. Kaldate, Assistant Government Pleader for for Respondent No.2. ... WITH 2 LETTERS PATENT APPEAL NO.152 OF 2010 IN WRIT PETITION NO.3875 OF 2009 Shri. Jitendra Himmat Biraris, R/o- At Post-Balhane, Tq-Sakri, Dist-Dhule. ...APPELLANT. VERSUS 1) Kiran s/o Gulabrao Patil, R/o-Mehergaon, Tq-Dhule, Dist-Dhule, 2) The District Collector, Dhule. ...RESPONDENTS. ... Shri.V.J. Dixit, Senior Counsel with Shri. P.D. Bachate Advocate for Appellant. Shri.P.M. Shah, Senior Counsel with Shri. Amol Sawant Advocate for Respondent No.1. Shri.S.V. Kurundkar, Additional Government Pleader with Shri. S.D. Kaldate, Assistant Government Pleader for for Respondent No.2. ... WITH 3 LETTERS PATENT APPEAL NO.154 OF 2010 IN WRIT PETITION NO.3876 OF 2009 Shri. Bhiwaji Bhatu Pawar, R/o- At Post-Bhadgaon, Tq-Sakri, Dist-Dhule. ...APPELLANT. VERSUS 1) Kiran s/o Gulabrao Patil, R/o-Mehergaon, Tq-Dhule, Dist-Dhule, 2) The District Collector, Dhule. ...RESPONDENTS. ... Shri.V.J. Dixit, Senior Counsel with Shri. P.D. Bachate Advocate for Appellant. Shri.P.M. Shah, Senior Counsel with Shri. Amol Sawant Advocate for Respondent No.1. Shri.S.V. Kurundkar, Additional Government Pleader with Shri. S.D. Kaldate, Assistant Government Pleader for for Respondent No.2. ... WITH 4 LETTERS PATENT APPEAL NO.155 OF 2010 IN WRIT PETITION NO.3877 OF 2009 Kedabai Shantaram Jadhav, R/o- At Post-Kasare, Tq-Sakri, Dist-Dhule. ...APPELLANT. VERSUS 1) Kiran s/o Gulabrao Patil, R/o-Mehergaon, Tq-Dhule, Dist-Dhule, 2) The District Collector, Dhule. ...RESPONDENTS. ... Shri.V.J. Dixit, Senior Counsel with Shri. P.D. Bachate Advocate for Appellant. Shri.P.M. Shah, Senior Counsel with Shri. Amol Sawant Advocate for Respondent No.1. Shri.S.V. Kurundkar, Additional Government Pleader with Shri. S.D. Kaldate, Assistant Government Pleader for for Respondent No.2. ... WITH 5 LETTERS PATENT APPEAL NO.156 OF 2010 IN WRIT PETITION NO.3878 OF 2009 Mrs. Soni Bharat Pawara, R/o- At Post-Kodid, Tq-Shirpur, Dist-Dhule. ...APPELLANT. VERSUS 1) Kiran s/o Gulabrao Patil, R/o-Mehergaon, Tq-Dhule, Dist-Dhule, 2) The District Collector, Dhule. ...RESPONDENTS. ... Shri.V.J. Dixit, Senior Counsel with Shri. P.D. Bachate Advocate for Appellant. Shri.P.M. Shah, Senior Counsel with Shri. Amol Sawant Advocate for Respondent No.1. Shri.S.V. Kurundkar, Additional Government Pleader with Shri. S.D. Kaldate, Assistant Government Pleader for for Respondent No.2. ... WITH 6 LETTERS PATENT APPEAL NO.157 OF 2010 IN WRIT PETITION NO.2585 OF 2010 1) Rajendra Bhausaheb Deshmukh, Elected Councillor, Municipal Council, Bhokardan, R/o-Deshmukh Galli, Ward No.8, Bhokardan, Tq-Bhokardan, Dist-Jalna. 2) Dilip Bhagwanrao Deshmukh, Elected Councillor, Municipal Council, Bhokardan, R/o-Near Rokda Hanuman Mandir, Bhokardan, Tq-Bhokardan, Dist-Jalna. 3) Sheshrao Saluba Sapkal, Elected Councillor, Municipal Council, Bhokardan, R/o-Near Rokda Hanuman Mandir, Bhokardan, Tq-Bhokardan, Dist-Jalna. 4) Sau. Saraswatibai w/o Sahebrao Ingle, Elected Councillor, Municipal Council, Bhokardan, R/o-Sillod Road, Near Santoshi Mata Mandir, Bhokardan, Tq-Bhokardan, Dist-Jalna. 5) Sau. Laxmibai w/o Rajendra Devre, Elected Councillor, Municipal Council, Bhokardan, R/o-Jafarabad, Bhokardan, Tq-Bhokardan, Dist-Jalna. 7 6) Kadri Mohd. Shafique Mohd. Jahur, Elected Councillor, Municipal Council, Bhokardan, R/o-Ward No.15, New Bhokardan Road, Bhokardan, Tq-Bhokardan, Dist-Jalna. ...APPELLANTS. VERSUS 1) The Collector, Jalna, Dist-Jalna. 2) Municipal Council, Bhokardan, Dist-Jalna, Through its Chief Officer, 3) Chine Mukesh s/o Ramchandra, Elected Councillor, Municipal Council, Bhokardan, R/o-Samta Nagar, New Bhokardan, Tq-Bhokardan, Dist-Jalna. ...RESPONDENTS. ... Shri.Mahesh S. Deshmukh Advocate for Appellants. Shri.S.V. Kurundkar, Additional Government Pleader with Shri. S.D. Kaldate, Assistant Government Pleader for for Respondent No.1. Shri.A.S. Bajaj Advocate for Respondent No.3. ... 8 CORAM: NARESH H. PATIL AND K.K. TATED, JJ. DATE : 1ST SEPTEMBER, 2010. ORAL ORDER [PER NARESH H. PATIL, J.] : 1. Heard learned counsel for the parties. 2. We have perused the impugned Judgment and Order dated 15th April, 2010 passed by the learned Single Judge, by which, Writ Petition Nos. 3875 of 2009, 3876 of 2009, 3877 of 2009, 3878 of 2009, 3879 of 2009 were rejected. We have also perused the order dated 15th April, 2010 passed in Writ Petition No.2585 of 2010 whereby the Writ Petition was rejected. 3. The Appellants were facing disqualification Petitions before the Collector, Dhule and Collector, Jalna filed under the provisions of the Maharashtra Local Authority 9 Members Disqualification Act, 1986 (for short "the Act of 1986") and the Rules framed thereunder. The Application/ Petition was filed by the Appellants praying for framing of preliminary issue in respect of non compliance of mandatory provisions of law and for dismissal of the Petitions on that ground. 4. By Judgment and order dated 27th May 2009, passed by the Collector, Dhule, the objections raised by the Appellants were held to be not maintainable. By Judgment and order dated 12th March 2010, passed by the Collector, Jalna the objection raised by the Appellant in Letters Patent Appeal No.157 of 2010 was held to be not maintainable. It was further held by the Collector, Dhule and Collector, Jalna that the disqualification petitions are maintainable. These Judgments and Orders were subject matters of Writ Petitions filed by the Appellants before the learned Single Judge. As the issue raised was identical and common, the Writ Petitions were 10 heard together and were disposed of by a common Judgment and Order. The respective Appellants have preferred separate Letters Patent Appeals accordingly. 5. The learned senior counsel Shri. V.J. Dixit appearing for the Appellants, in substance, urged that the Judgment and Order passed by the learned Single Judge suffers from non application of mind. In the light of specific Rules, namely, the Maharashtra Local Authority Members Disqualification Rules, 1987 (for short "the Rules of 1987"), more precisely, in view of non compliance of Rules 6 and 7, the objection Petitions filed by the Appellants before the Collector ought to have been allowed. The relevant rules framed for the purpose are mandatory in nature and non compliance thereof entails dismissal of Disqualification Petitions according to the learned counsel. In the light of the serious consequences flowing from the proceedings of Disqualification Petitions, it was urged that 11 mandatory provisions have to be strictly complied with. In other words, the learned senior counsel submitted that the procedure enunciated under the Rules of 1987, more particularly Rules 6 and 7, in the light of the Scheme of the Act of 1986 and object behind framing of the said law could not be termed as directory in nature and if it is held that these Rules though procedural in nature, are directory, the same would defeat the very purpose of enactment. In respect of the reference to the case law relied upon by the respective parties and the learned Single Judge of this Court, the counsel submitted that the Judgment in the case of Sadashiv H. Patil vs. Vithal D. Teke and others, (2000) 8 Supreme Court Cases, Page 82 delivered by the Apex Court and the Judgment in the case of Sayyad Tahir Hussain Mainuddin and another vs. State of Maharashtra and others, 2007(6) ALL M.R. Page 14 delivered by the Division Bench of this Court shall prevail and could be applied to the facts of the present case. The counsel further submits that if these two Judgments cited supra, 12 are held to be applicable to the facts of the present case, then the order of the Collector is required to be quashed and set aside and the only fall out would be dismissal of the Disqualification Petitions at the threshold. The learned senior counsel has referred extensively the relevant observations and findings of the Apex Court and the Judgments delivered by the Bombay High Court. While summing up his argument, the counsel submitted that some of the Respondent Objectors have even not filed applications for getting the defects cured, if the Respondents believe that the defects were curable. 6. In support of his submissions, the learned senior counsel Shri Dixit placed reliance on the following Reported Judgments: (1) Sadashiv H. Patil vs. Vitthal Teke, 2001 (1) Mh. L.J. (S.C.) Page 312, (2) Sayyad Tahir Hussain 13 Mainuddin vs. State of Maharashtra, 2007 (6) ALL M.R. Page 14, (3) Hariharrao vs. Datta Anandrao, 2005 (4), Mh. L.J. Page 211, (4) Order passed in Writ Petition Nos. 5448 of 2003 and 3898 of 2002 (Rohidas Gadekar vs. The State of Maharashtra), (5) Tarlochan Sharma vs. State of Punjab, A.I.R. 2001, Supreme Court, Page 2524, (6) Dr. M.P. Singh vs. Chairman Bihar Legislative Council, 2004 A.I.R. S.C.W. Page 6278, (7) Manoj Bansilal Biyani vs. Sameer Krishnadhan Kart and another, 2009(5) Bom.C.R. Page 753, (8) Chandrakant s/o 14 Gajananrao Pise and others vs. Collector, Nagpur and others, 2010 (1) Mh. L.J. Page 268, (9) Muraka Radhey Shyam Ram Kumar vs. Rupsing Rathore, A.I.R. 1964 S.C. Page 1545, (10) F.A. Sapa vs. Singora and others, A.I.R. 1991 Supreme Court, Page 1557, (11) Ravi Naik vs. Union of India, A.I.R. 1994 S.C. Page 1558. 7. Learned senior counsel Shri. P.M. Shah, appearing for the Respondents submitted that the Judgment delivered by the Apex Court in the case of Sadashiv H. Patil vs. Vithal D. Teke and others, cited supra, could not be made applicable to the facts of the present case. The Apex Court did not deal with the issue in respect of Rules 6 and 7 of the Rules of 1987 and its binding nature 15 as to whether same are directory or mandatory in proceedings of the present nature, wherein election of a candidate is called in question or a Petition seeks disqualification of elected person. The counsel submitted that the Apex Court was dealing with the issue relating to issuance of whip in the case of Sadashiv H. Patil vs. Vithal D. Teke and others, cited supra. The issue which is involved in the present dispute did not fall for consideration of the Apex Court. The learned senior counsel submitted that in the light of the Judgment delivered by the Apex Court in the case of Dr. Mahachandra Prasad Singh vs. Chairman, Bihar Legislative Council and others, 2004 (8) S.C.C. 747, the Division Bench Judgment of this Court in case of Sayyad Tahir Hussain Mainuddin and another vs. State of Maharashtra and others, cited supra, would also could not be made applicable to the facts of the present case. The counsel further urged that the comparison of Rules of 1987 framed by the State Legislature could not 16 be differently looked at from legal and constitutional angle than the Rules framed by the Chairman of the Legislative Council of State Legislature. The learned counsel submitted that the Rules framed by the Chairman of the Legislative Council had statutory force. In the identical manner, the Rules of 1987 were also laid before the Maharashtra State Legislature and were thereafter notified and implemented. By drawing our attention to the various Judgments delivered by the Apex Court and the Bombay High Court, the counsel submitted that both these Rules i.e. Rules 6 and 7 ultimately derived their source from the Constitutional provisions. The counsel specifically referred to the Tenth Schedule which falls under Article 101(2) and 191(2) of the Constitution of India and Part 9-A dealing with the Municipalities referring to Article 243(V) (1) (b). In the submissions of the counsel, the learned Single Judges of the Bombay High Court in the case of Manoj Bansilal Biyani vs. Sameer Krishnadhan Kart and another, 2009(5) Bom. C.R. 17 Page 753 (Coram: SHRI. V.R. KINGAONKAR, J.) and in the case of Chandrakant s/o Gajananrao Pise and others vs. Collector, Nagpur and others, 2010 (1) Mh. L.J. Page 268 (CORAM: B.P. DHARMADHIKARI, J.) dealt with this issue and reached unanimous conclusion that in the fact situation of those cases which was identical in nature to the present case, the ratio of the Judgment delivered in the case of Dr. Mahachandra Prasad Singh vs. Chairman, Bihar Legislative Council and others, cited supra, could be applicable. The said Judgment, according to the Single Judges was directly on the point and answers the contentions raised by the contesting parties. With the assistance of the learned counsel, we have perused some of the relevant observations, reasonings and conclusions of the Judgments cited before us. The learned counsel submitted that the objectors are still entitled to file applications praying for curing of some of the defects, if they are, in respect of compliances of provisions of Rules 6 and 7 of the 18 Rules of 1987. 8. Learned senior counsel Shri. Shah, in support of his submissions, placed reliance on the following Reported Cases: (1) Dr. Mahachandra Prasad Singh vs. Chairman, Bihar Legislative Council and others, 2004 (8), S.C.C. Page 747, (2) Sayyad Tahir Hussain Mainuddin and another vs. State of Maharashtra and others, 2007 (6) Bom..C.R. Page 214, (3) Manoj Bansilal Biyani and another vs. Sunil Murlidhar Chaudhari, 2009 (4) Mh. L.J. Page 361, (4) Manoj Bansilal Biyani vs. Sameer Krishnadhan Kart and another, 2009(5) Bom.C.R. Page 753, 19 (5) Chandrakant s/o Gajananrao Pise and others vs. Collector, Nagpur and others, 2010 (1) Mh. L.J. Page 268. 9. Shri. Deshmukh, learned counsel appearing for the Appellant in Letters Patent Appeal No.157 of 2010 adopted the arguments advanced by the learned senior counsel Shri Dixit and further submitted that the mandatory provisions of law though procedural, are required to be followed and in absence thereof the Collector ought to have dismissed the Disqualification Petitions. In the facts of the case, it is submitted that the objection Petitioners have not complied with the mandatory provisions of law. 10. Shri. Bajaj, learned counsel appearing for Respondent No.3 in Letters Patent Appeal No. 157 of 2010 submitted that the learned Single Judge has applied mind to the facts of the case and the Judgments cited by the contesting parties. 20 The counsel submitted that the contentions raised by the other side that the impugned Judgment and Order suffers from non application of mind, is not at all tenable. The counsel further submitted that the Objector Petitioners in Letters Patent Appeal No.157 of 2010 had applied for curing of some of the procedural defects in reference to Rules 6 and 7 and the Collector had allowed the said application and accordingly the procedural requirement under Rules 6 and 7 are complied with. 11. Shri. Kurundkar, learned Additional Government Pleaders submitted that the Collector had considered the relevant provisions of law, the Judgments of the Apex Court and the Bombay High Court and had reached reasonable and sound conclusion which does not call for any interference. In support of his submissions, the A.G.P. placed reliance on the ratio laid down in the case of Umesh Challiyil vs. K.P. Rajendran, A.I.R. 2008 Supreme Court, Page 1577. 21 12. We have heard the respective learned counsel at length. We have perused the Judgments cited supra. We have perused the provisions of the Act of 1986, the Rules of 1987, the provisions of 10th Schedule and provisions of Article 243 relating to the Municipalities. 13. We do not notice any infirmity or perversity in the order passed by the learned Single Judge. The learned Single Judge has referred to all the relevant cases relied upon by the contesting parties and has even reproduced the relevant paragraphs of the respective case laws. We are convinced that the issue in respect of Rules 6 and 7 of the Rules of 1987 or any other identically framed Rules was not the subject matter before the Apex Court in the case of Sadashiv H. Patil vs. Vithal D. Teke and others, cited supra. The issue in respect of the application of procedural law in matters of Election Petitions/ Disqualification Petitions was considered by the Apex Court in the case of Dr. 22 Mahachandra Prasad Singh vs. Chairman, Bihar Legislative Council and others, cited supra, and it was held that such procedure would be directory in nature. We have perused the views of the learned Single Judges in the case of Manoj Bansilal Biyani vs. Sameer Krishnadhan Kart and another, 2009(5) Bom. C.R. Page 753 (Coram: SHRI. V.R. KINGAONKAR, J.) and in the case of Chandrakant s/o Gajananrao Pise and others vs. Collector, Nagpur and others, 2010 (1) Mh. L.J. Page 268 (CORAM: B.P. DHARMADHIKARI, J.). We find that in both these cases, the learned Single Judges of this Court have held that the Judgment delivered in the case of Dr. Mahachandra Prasad Singh vs. Chairman, Bihar Legislative Council and others, cited supra, is directly on the point. In principle, the law enunciated by the Apex Court is that rule making authority cannot dilute or interfere with the intention of the law. 14. The learned Single Judge held that he was 23 in respectful agreement with the pronouncements made by the learned Single Judge in the matters of Chandrakant Pise and Manoj Biyani, cited supra, which in turn, refers to Judtgment of the Apex Court in the case of Dr. Mahachandra Prasad Singh vs. Chairman, Bihar Legislative Council and others, cited supra. 15. In the light of the aforesaid reasons, we find that there is no merit in the Letters Patent Appeal. The Letters Patent Appeals are dismissed. 16. At this stage, the learned senior counsel Shri Dixit, on behalf of the Appellants prayed that the Collector shall not pass final order for a period of four weeks from today. The learned senior counsel Shri. Shah for Respondents submitted that these proceedings are pending before the Collector for more than two years and considering the provisions of law and the urgency, the Disqualification Petitions are to be decided at the earliest. 24 17. The Collector, Dhule and Collector, Jalna, dealing with these Disqualification Petitions shall not pass final orders for a period of THREE WEEKS from today. . Certified copy is expedited. [K.K. TATED, J.] [NARESH H. PATIL, J.] asb/SEPT10/lpa151.10