-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2007 OF 2010. Tukaram G. Kale & Ors. ..Petitioners. Versus Ankush Kondiba Jadhav & Anr. ..Respondents. Mr. P. K. Dhakephalkar, Senior Advocate with Mr. Shriniwas S. Patwardhan for the petitioners. Mr. S. P. Kadam for respondent no.1. Mr. S. R. Nargolkar, AGP for respondent nos. 2 & 3. Coram : R. V. MORE, J. Date : April 8, 2010. P. C. : 1. The election to the office of Chairman and Vice-Chairman of respondent no.2 was declared by respondent no.3 on 19th November 2009. The election was scheduled to take place on 27th November 2009. In a meeting of the elected councillors of respondent no.2 - Panchayat Samiti, which was held on 27th November 2009, the petitioner was elected as chairman by majority of 8 : 6 defeating respondent no.1. Respondent no.1 thereafter on 11th December 2009 filed reference petition under the provisions of Maharashtra Local Authority Members Disqualification Act, 1986 [for short, “the said Act.”] and the Maharashtra Local Authority Members Disqualification Rules, 1987 [for short, “the said Rules.”], being Reference Petition No. 52 of 2009 seeking declaration that the petitioners -: 2 :- stood disqualified to be councillors under the provisions of the said Act. In short, it is the case of the respondent no.1 that he and petitioner nos.1 to 3 belong to the Indian National Congress, Indapur Panchayat Samithi Party and the petitioners have voted against the whip issued by respondent no.1 as a leader of the party regarding the election of chairman and vice-chairman. 2. The petitioners filed an application before respondent no.3 for framing the preliminary issue about the maintainability of petition and also about the jurisdiction of respondent no.3. The said application was contested by the respondent no.1. Respondent no.3 after hearing the concerned parties, by an order dated 23rd March 2010 overruled the objections of the petitioner and decided to continue the enquiry under Section 7 of the said Act. This order is impugned in the present writ petition. 3. At the outset it is worth to mention that the petitioners by filing an application on 27th January 2010 challenged the jurisdiction of respondent no.3 to hear the reference petition of respondent no.1. By this application the grievance was also made that the reference petition does not comply with the requirements of Rule-6 of the said Rules and therefore same deserves to be dismissed. Mr. P. K. Dhakephalkar, learned senior counsel appearing for the petitioners, however, restricted his arguments on the point of dismissal of reference petition for non compliance of provisions of rule-6 of the said Rules. His submission was that under rule-6(4), every petition and annexures thereto required to be signed and verified in the manner laid down in the -: 3 :- Code of Civil Procedure, 1908 for the verification of pleadings. He submitted that this provision is mandatory in view of rule-7(2) of the said Rules. He further submitted that respondent no.1 has not signed and verified to annexures to the petition in a manner laid down in CPC, 1908 and therefore reference petition deserves to be dismissed. Mr. Dhakephalkar, in support of his arguments relied upon the Apex Court decision in the matter of Sadashiv H. Patil v/s. Vithal D. Teke & Ors [2001(1) Mh.L.J. 312] and the decision of this Court in the matter of Sayyad Tahir Hussain Mainuddin & Anr. v/s State of Maharashtra & Ors [2007(6) BCR 214]. 4. Mr. Sanjeev P. Kadam, learned counsel appearing for respondent no.1 and Mr. S. R. Nargolkar, learned AGP appearing on behalf of respondent nos. 2 & 3 contested the petition. They submitted that the provisions of rule-7(2) of the said Rules are not mandatory and same are directory. To substantiate their contention, they relied upon the judgment of the Apex Court in the matter of Dr. Mahachandra Prasad Singh v/s. Chairman Bihar Legislative Council & Ors [2004 AIR SCW 6278] and unreported judgment of division bench of this Court in Writ Petition No. 971 of 2010 in the matter of Kedar Shashikant Desphande v/s. the state of Maharashtra & Ors, decided on 4th February 2010. 5. Mr. S. R. Nargolkar, learned AGP produced original file pertaining to the record of reference petition filed by respondent no.1. Learned counsel for the petitioners was given an opportunity to inspect the same. I have also -: 4 :- perused the file and I find that the reference petition is duly signed and verified in the manner laid down in the Code of Civil Procedure, 1908 for the purpose of verification of pleadings. All the annexures to the petition, except 2, are also signed and verified in the manner provided in the Code of Civil Procedure. 6. The Apex Court in Sadashiv Patil’s case (supra) while considering the provisions of section 7 of the said Act held that the rigorous compliance with provisions of Act and Rules must be shown to have taken place while dealing with reference under section 7. In Dr. Mahachandra’s case (supra) the Supreme Court was considering Paragraph 8, 2(1)(a) of Tenth Schedule of the Constitution of India alongwith provisions of Rule-6 & 7 of the Bihar Legislative Council Members (Disqualification on Ground of Defection) Rules 1994. The Apex Court in this case held that the strict interpretation to the Rules should not be given. It was further held that the provisions of those Rules are directory in nature. The Division Bench of this Court in Sayyad Tahir Hussain Mainuddin’s case (supra) held that non compliance of the provisions of Rule-6 of the said Rules will entail dismissal of the reference petition. Another Division Bench of this Court in Kedar’s case (supra) while considering the provisions of Rules 6 & 7 of the said Rules, followed the Apex Court judgment in Dr. Mahachandra’s case (supra) and held that the provisions of Rule 6 & 7 are not mandatory. 7. The judgment in Sadashiv Patil’s case (supra) is delivered in the year -: 5 :- 2004 by 3 judges bench of the Supreme Court and the judgment in Dr. Mahachandra’s case (supra) delivered in the year 2005 is also by 3 judges bench of the Apex Court. As stated above, the Apex Court in Sadashiv Patil’s case (supra) held that rigorous compliance with provisions of Act and Rules must be shown to have taken place while dealing with reference under section 7. The Apex Court in Dr. Mahachandra’s case (supra) was considering the provisions of the Bihar Legislative Council Members (Disqualification on Ground of Defection) Rules 1994 which are para materia with the provisions of said Maharashtra Rules of 1987. The Apex Court, as stated above, in this decision held that the provisions of Rule 6 & 7 are directory in nature and non filing of an affidavit-in-support of petiting alleging disqualification would not render the petition invalid. The Apex Court further held that a defaulter legislator who has otherwise incurred disqualification would be able to get away be taking the advantange of even a slight or insignificant error in the petition and thereby asking the Chairman to dismiss the petition under sub-rule (2) of Rule7. Thus, there is a divergent and conflicting judgments of the co-ordinate benches of the Apex Court. 8. Now, the question which falls for consideration is that which of the above decisions of the Supreme Court is to be applied to the facts and circumstances of the present case. The Full Bench of this Court in Kamleshkumar Ishwardas Patel v. Union of India [1994 Mh.L.J. 1669] was considering the course to be followed by the High Court when confronted -: 6 :- with the contrary decisions emanating from benches of co-equal strength. Full Bench held that the High Court not necessarily bound to follow the decision later in point of time but must follow the one which in its view is better in point of law. In the present case, 1st respondent’s petition is signed and verified in the manner laid down in the CPC, all the annexures except two are also signed and verified in the manner laid down in CPC. If the strict interpretation to Rules 6 & 7 is given, then the very object of the said Act and Rules would be defeated. Therefore, I am of the view that the later decision of the Apex Court in Dr. Mahachandra’s case (supra) is better in point of law. Thus, non compliance of the provisions of Rules - 6 & 7 of the said Rules for want of verification in accordance with the CPC in respect of two annexures to the petition, is not fatal to the maintainability of the petition filed by respondent no.1. 9. Be that as it may, under rule 6(4) of the said Rules, every petition and any annexure thereto shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings. It is important to note that under rule-7(2) of the said Rules, if the petition does not comply with the provisions of rule-6, the Collector is obliged to dismiss the petition. This rule makes reference to “petition” only and conspicuously omits reference to annexures to the petition. The plain reading of rule 7(2) of the said Rules makes it clear that the reference petition must be in compliance with the requirements laid down in rule-6. I have already -: 7 :- observed that the petition is duly signed and verified by the petitioner in the manner laid down in the Code of Civil Procedure. Rule -7(2) does not provide for any consequences for non compliance of requirements of rule-6 in respect of annexures to the petition. In the absence of any provisions providing for consequences, the rule which requires annexures to the petition signed and verified cannot be said to be mandatory. Taking into consideration the above facts and circumstances, I do not find any merit in the petition and same is hereby dismissed. (R.V. MORE, J.)