1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR Writ Petition No. 4284/2010 Smt. Indira Ambhore Vs. Shri Kasam Piru Gawali and others. =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Mr. A. S. Jaiswal, Adv. for petitioner. Mr. Deshpande, Adv. holding for Adv. F. Mirza for respondent no.1. Mr. Chawre, Adv. holding for Adv. Kalwage for respondent no.3. Mr. Fulzele, AGP for respondent no.2. CORAM : B.P. DHARMADHIKARI, J. NOVEMBER 26, 2010. This Court has issued notice for final disposal. Accordingly, I have heard Advocate Jaiswal for petitioner, AGP Fulzele for respondent no.2 , Advocate Deshpande holding for Advocate Mirza for respondent no.1 and Advocate Chawre holding for Advocate Kalwage for respondent no.3 Short contention of Advocate Jaiswal is as per Rules of Congress Political party for Municipal Council Mehkar the person authorised to issue whip is either Sham Babu Umalkar or then in his absence and with his written consent, Shri Kasam Piru 2 Gawali.. Shri Ksam Piru Gawali is also elected as leader of said political party. In the meeting conducted on 15.6.2009 the political party in presence of said Sham Babu Umalkar resolved and gave all rights to issue whip to Kasam Piru Gawali. However, whip dated 16.6.2009 in the present matter is issued by one Vijay Ambhore, who is not authorised either under Rules or then by resolution of political party of respondent no.3 to be a person competent to issue whip. Disobedience thereto cannot attract disqualification under Maharashtra Local Authority Members Disqualification Act 1986 (“the Act”) for short 1987. He has relied upon the judgment of Hon'ble Apex Court reported at 2001 (1) Mh. L.J. 312 (Sadashiv H. Patil Vs. Vithal D. Teke and others) more particularly paragraph 8. According to Advocate Deshpande the whip has been issued because of authorization in his favour by President of State Congress Committee by Vijay Ambhore on 12.6.2009. He states that violation of whip is accepted and there cannot be 3 any debate on its consequences.. Hence, disqualification has been incurred and impugned order dated 20th August 2009 by Collector does not call for any interference. Learned AGP supported the arguments of Advocate Deshpande. Perusal of impugned order shows that proceedings before Collector for disqualification of petitioner were moved by leader of political party for Municipal Council namely Kasam Gawali. However, it is not pointed out how the Rules of said political party submitted to Collector at the time of its registration as such got amended. Those Rules have been accepted by all seven members and political party for Municipal Council has been formed on 22.11.2006 and as per those Rules powers to issue whip are given to Sham Babu and then in his absence to Shri Kasam Gawali. Meeting dated 15.6.2009 authorises Kasam Gawali to issue whip. The meeting is attended by Shyam Babu Umalkar. However, again it is not clear how there can be such authorisation by Resolution without 4 changing Rule 3 as said Rule 3 permits Kasam to act only in absence of Shyam Babu Umalkar and by his written consent. Vijay Ambhore has not been authorised by political party for Municipal Council and his authorization is because of power given to him by orders of President of State Congress Committee. What is role of State Congress Committee is also not discussed by Collector in the background of Rules already registered with him. The judgment of Hon'ble Apex Court relied upon by both sides clearly show that when there are Rules, the Rules need to be looked into. Here Rules exist and authority not contemplated in Rules has issued the whip. I therefore find impugned order dated 20.8.2010 disqualifying the petitioner for violation of that whip unsustainable. The said order is quashed and set aside. Writ Petition is accordingly allowed. No costs. JUDGE ambulkar