wp4189-11.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4189 OF 2011 Tukaram Ganpat Kale & Anr. .. Petitioners Versus Ankush Kondiba Jadhav & Ors. .. Respondents Mr.P.K.Dhakephalkar, Senior Advocate with S.S.Patwardhan for petitioner Mr.A.Y.Sakhare, Senior Advocate with S.P.Kadam for respondent Nos.1 and 2 Mr.S.D.Rayrikar, AGP for respondent No.3 CORAM : S.C.DHARMADHIKARI, J. Reserved on : 14th June 2011 Pronounced on : 11th July 2011. ORAL JUDGEMENT:- 1] By this petition under Articles 226 and 227 of the Constitution of India, the petitioners challenge an order dated 2nd June 2011 of the Collector, Pune by which it has been declared that each of the petitioner stands disqualified as Member of Panchayat Samiti, Indapur under section 3(1)(b) of the Maharashtra Local Authority (Members Disqualification) wp4189-11.doc 2 Act, 1986 (the Act for short) and the Maharashtra Local Authority (Members Disqualification) Rules, 1987 (for short Rules). 2] Respondent No.1 to this petition is also a Councillor of the Panchayat Samati. The Panchayat Samiti is constituted under the provisions of the Maharashtra Zilla Parishad and Panchayat Samiti's Act, 1961. It is the case of the petitioners that they are elected as Councilors of respondent No.2 on 23rd February 2007. Respondent No.1 claims that meeting of the party took place on 12th March 2007 at which he was elected as party leader and was authorised to prepare and issue whip. It is the case of first respondent that the party was formed on 12th March 2007. The election to the office of Chairman and Vice Chairman to respondent No.2 Panchayat was declared on 19th November 2009. The election was to be held on 27th November 2009. Petitioner No.1 filed his nomination for the post of Chairman. The respondent No.1 was also desirous of contesting election and, therefore, he also filed his nomination. wp4189-11.doc 3 In the election held on 27th November 2009, the petitioner No.1 was elected as Chairman by majority of 8 : 6 votes. One Kantilal Borade was elected as Vice Chairman by similar margin of votes. It is the case of the first respondent that he had issued a whip under the authority derived by him and, therefore, petitioners were obliged to vote for him. Having not voted and abided by the whip issued by the party, the petitioners have incurred disqualification under the provisions of the Act. He, therefore, filed a petition being Reference Petition No.52 of 2009 to disqualify the petitioners. 3] In terms of the statutory provisions, the Authority to whom such a petition can be made and who can decide it, is Collector of the district. Accordingly, the petition was filed before the Collector and it was urged that the petitioners and respondent No.1 belong to same political party i.e. Indian National Congress. They are members of the Indian National Congress, Indapur Panchayat Samati Party (for short P.S.Party). wp4189-11.doc 4 4] As far as registration of the P.S.Party is concerned, it was contended that the requisite information as required by Rule 3 of the Rules was submitted to the Block Development Officer (BDO) on 14th March 2007 and the BDO forwarded the same and the Deputy Collector, Pune received it on 15th March 2007. Thus, the P.S.Party was registered with Collector. 5] When the petition was served, the petitioners filed their written statement opposing the reliefs prayed. The written statement proceeded to state that the provisions of the Act and the Rules are not applicable as the elections to the P.S. Were held on March 2007. It was alleged that the P.S. Party did not come into existence and in any event is non existent. It is stated that one Dhananjay Babras friend of petitioners had sought information under RTI vide letter dated 23rd November 2009. After receipt of this letter information was sought from BDO whether any party is formed at P.S. Level. The BDO informed Dy.Collector as per his record no new party is formed. wp4189-11.doc 5 Thus, Mr.Babras was informed that as per the records the proposal under section 3(1) of the Act is not received in the office. Thus, the PS Party was not in existencce. If the party itself is non existent, then, there is no question of the petitioners being disqualified. Reliance upon the information that was provided, that this stand was taken by the petitioners. It was submitted that the petitioners neither joined any political party nor elected any leader of their party in the absence of which whip cannot be issued for the purpose of the Act and Rules. Contending thus, the petitioners dealt with each and every paragraph of the petition and denied their contents parawise. In para 17 of the written statement this is what is alleged:- “17. Contents of para 4 are not true and correct and denied. It is false to state that Collector on 13/3/2007 issued letter to BDO and had directed to make all necessary compliance under the said Act. It is submitted that as per wp4189-11.doc 6 provisions of law the Collector has no authority to delegate his powers and therefore, alleged letter issued by the Collector is illegal and without any authority. It is denied that on 14/3/2010 the petitioner submitted the form No.1, 3 and election certificate. As per information received from the BDO the petitioner had only issued one undated letter to him and except said letter nothing was submitted by the petitioner with the BDO. It is denied that BDO submitted the said documents to the Collector on the same day, which was received by the Deputy Collector on 15/3/2007. It is denied that necessary copies of acknowledgement with necessary documents are produced on record. The petitioner has not filed any document on record which shows that he had submitted the said alleged documents to the BDO and BDO further submitted those alleged documents to the Collector or Dy.Collector. The respondent states that due to wp4189-11.doc 7 non filing of those documents the present petition is incomplete and liable to be dismissed. It is denied that the respondents were aware that they got elected on the symbol and the banner of the Indian National Congress and thereafter they became the members of the Indian National Congress Indapur Panchayat Samiti Party and that the petitioner was elected as party leader of the said party. It is denied that the respondents further acted upon also.” 6] Further, in para 19 of the written statement, there is denial of any meeting held on 20th November 2009 allegedly for nominating name of the candidate for the post of Chairman and Vice Chairman. Proceedings of the meetings are denied. Further, issuance of whip is also denied. It is stated that original petitioner is neither leader of any political party nor is he authorised by any political party for which he has issued whip and, therefore, in any event, therefore, the whip and wp4189-11.doc 8 direction cannot be said to be legal and valid in law. For all these reasons, it was prayed that the petition be dismissed. The written statement was filed on 13th July 2010 and, thereafter, there is an additional written statement on behalf of the petitioner No.1 dated 13th July 2010. The written statement filed on behalf of respondent Nos. 2 and 3 raising more or less identical pleas is filed on 19th March 2010. Even, they proceeded to file an additional written statement to deal with amended petition that is filed on 13th July 2010. Prior thereto, an attempt was made to question the jurisdiction of the Collector, Pune to hear the reference petition. There was an application made requesting that a preliminary issue be framed about maintainability of the petition and the jurisdiction of respondent No.3. That application was rejected on 23rd March 2010 and the Collector decided to continue the enquiry. A petition was filed in this Court being Writ Petition No.2007 of 2010 but the challenge was confined to the point of maintainability of the reference petition for non compliance with Rule 6 of the said Rules and particularly sub-rule (4) thereof. wp4189-11.doc 9 By an order delivered on 8th April 2010, this Court dismissed the petition, holding that the rule pressed cannot be held to be mandatory. 7] The matter was carried to Supreme Court and it was clarified that it would be open for the petitioners to raise the challenge at the time of consideration of the reference petition. 8] Thereafter, there was one more order dated 24th August 2010 made on an application for re-examination of the witnesses. That application was dismissed by this order. A petition being W.P.No.7110 of 2010 challenging this order was filed in this Court and on 22nd October 2010, the petition was dismissed with a clarification that in the event final order is adverse to the petitioners, then, while challenging it they can raise contention that the order dated 24th August 2010 is illegal. Thereafter, reference needs to be made to the compliance made with Rule 7(6) in relation to framing of charges and statement of imputation. That compliance was also made. In wp4189-11.doc 10 the meanwhile, an application for amendment was made and that application seeking amendments to the reference petition was allowed on 22nd June 2010. 9] Subsequent to orders of this Court referred to above, the matter proceeded and witnesses were examined so also number of documents filed. Subsequently, written arguments were submitted by respondent No.1. Prior thereto, the Collector heard the Advocates for contesting parties at length. Finally, by the impugned order it was concluded that on Issue Nos. 1 to 4, the respondent No.1 has proved that INC Indapur P.S. Was formed and that the petitioners before me were members thereof. It was also held that it is proved that Indapur P.S. Party appointed the first respondent as a leader and was authorised to issue whip. Thus, holding that all ingredients of the provisions relating to disqualification being satisfied, the disqualification petition was allowed and the order disqualifying the petitioners before me came to be passed on 2nd June 2011. It is this order which is impugned in the present petition. wp4189-11.doc 11 10] Mr.Dhakephalkar, learned Senior Counsel appearing for petitioners submitted that the impugned order is contrary to law. It is vitiated by serious errors apparent on the face of the record. He submits that there is ample material to show that the P.S. Party was never formed as the legal requirements for such formation were not complied with. The first respondent was not elected a leader as urged of this P.S.Party. The Collector has rendered findings in favour of the first respondent and against the petitioners by collecting evidence behind the back of the petitioners. He has relied upon some file notings. He has relied upon the contents of the file in the Collector's office only. He summoned the files and saw the relevant entries and documents all by himself and without giving any opportunity to the petitioners before him. Relying upon the same, he held that the issues can be answered in the affirmative. Such a course is clearly impermissible in law and violates the very tenets of justice and fairplay. wp4189-11.doc 12 11] Mr.Dhakephalkar submits that the impugned order is perverse as well. The Collector has recorded that he has verified the original election certificates which were submitted by BDO, Panchayat Samati, Indapur to Collector Pune by letter dated 14th March 2007, which letter was received in the office of Collector on 15th March 2007. These certificates were submitted to BDO by first respondent with other documents like Form Nos. I and III. He holds that these documents were submitted by the BDO to Collector vide Collector's letter dated 13th March 2007 issued to all BDOs. Of Panchayat Samitis in Pune District. However, according to Mr.Dhakephalkar, this finding of fact is contrary to the evidence of BDO. The BDO in his deposition says that he is familiar with the signature of the then BDO Mr.Wankhede and Exh.52/1 does not bear the signature of Mr.Wankhede. Mr.Dhakephalkar submits that BDO in his submission says that there is no document in the file which would evidence despatch of letter dated 14th March 2007. In these circumstances, how could the Collector conclude that the letter was received in his office is not clarified wp4189-11.doc 13 at all. Hence, this finding of fact is based on certain presumptions and some exercise undertaken by the Collector without adherence to law. 12] On Issue No.2, Mr.Dhakephalkar's grievance is that the Collector has observed that the information was given to the Collector by party through BDO on 14th March 2007 and it was received by Collector's office on 15th March 2007 and all the original papers are available with the Collector's office. Yet, he records that the list is not published in Maharashtra Government Gazette by Collector's office. Therefore, non performance of a ministerial act by the Collector's office is not a fault of elected members, is his conclusion but Mr.Dhakephalkar critises it by contending that if records remain in the office of the Collector and there is no compliance with the publication in the official gazette, then, the formation of party is not proved. If it is not proved, then, the petitioners cannot be disqualified. Mr.Dhakephalkar has invited my attention in this regard to certain documents which are annexed from Annexure wp4189-11.doc 14 K to the petition and, according to him, these documents would show vital blanks or in any event, absence of relevant particulars. Therefore, on this sketchy and incomplete material, according to Mr.Dhakephalkar, the finding of fact cannot be recorded. For all these reasons, the petition must succeed because there is complete non compliance with principles of natural justice and the requirement of the said rules. 13] On the other hand, Mr.Sakhare, learned Senior Counsel appearing for respondent Nos. 1 and 2 would submit that this petition is one more attempt to defeat the order passed and the conclusion recorded against the petitioners. This is nothing but one more attempt to delay the inevitable. According to Mr.Sakhare, the facts are plain and simple and admitted. Once the admitted facts have been relied upon to hold that the petitioners stand disqualified, then, there is no reason to interfere. There is absolutely no perversity committed nor is there any issue of error of law on the face of record, requiring interference in writ jurisdiction. For all these wp4189-11.doc 15 reasons, the petition deserves to be dismissed. 14] Mr.Sakhare submits that the criticism by Mr.Dhakephalkar of the course adopted by the Collector, is uncalled for and fully unjustified. The Collector has not done anything behind the back of the petitioners as alleged. On the basis of the oral and documentary evidence placed before him and since xerox copies were admitted and marked as exhibits, he verified their genuineness and correctness of the contents therein from the originals which were available in his office. This process of verification has caused no prejudice because there is over-whelming evidence other than the said documents to show that, that P.S. Party was formed. The petitioners were very much part of it. They were present at the meeting when the party was formed. They were present when the first respondent was declared elected as leader thereof and they were very much aware of the authority given to the first respondent to issue a whip or direction. In such circumstances, now to urge that the P.S.Party was never formed or that this wp4189-11.doc 16 fact is not proved is nothing but a belated attempt to avoid disqualification and continuing in office. Mr.Sakhare submits that mere non compliance with the rules is no ground to interfere in writ jurisdiction and particularly when no prejudice is established or proved. If the rules are complied with substantially, then, violation of procedural rules does not warrant interference in writ jurisdiction. For all these reasons this petition deserves to be dismissed. 14] Both sides have relied upon certain decisions to which reference would be made during the course of this judgement. For properly appreciating rival contentions, firstly, a reference will have to be made to the Act and the Rules. The Maharashtra Local Authority (Members Disqualification) Act, 1986 is to provide for disqualification of members of certain authorities on ground of defection and for matters incidental and connected therewith. The definitions are to be found in section 2 and clause (l) thereof defines the term P.S.Party in relation to a member belonging to any political party or aghadi wp4189-11.doc 17 or front in accordance with the explanation to section 3, means the group consisting of all the members of the Panchayat Samiti for the time being belonging to that political party or Aghadi or front in accordance with the said explanation. The term original political party is defined in section 2(j). The disqualification is on the ground of defection and in this case under clause (b) of sub-section (1) of section 3. For the purpose of the explanation below this sub-section that the definitions have been referred to by me. 15] A perusal of section 3 would indicate that it provides for disqualification on two counts. The argument is that for the purpose of sub-clause (b) of sub-section (1) to be attracted, it must be proved that there is an act committed of voting or abstaining from voting contrary to any direction issued by a political party or Aghadi or front to which he belongs, without obtaining prior permission of the political party, aghadi or front. The argument is that if there is a political party in relation to P.S., then, that must be as contemplated by the definition and it wp4189-11.doc 18 is not enough that the person belongs to the original political party. The rules provide for information to be furnished by a leader of a party and Rule 3 of the Rules reads as under:- “3. Information to be furnished by a leader of a party – (1) The leader of each municipal party or a Zilla Parishad party in relation to a councillor and the leader of Panchayat Samiti Party 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 Commissioner, in the case of a councillor of a 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 names 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 wp4189-11.doc 19 Parishad party or 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. 2. Where a municipal party or a Zilla Parishad party in relation to a councillor and a panchayat samiti party in relation to a member, consists of only one member then such member shall furnish a copy of the rules and regulations mentioned in clause (b) of sub-rule (1) to the Commissioner or, as the case may be, Collector within thirty days from the date of commencement of these rules or, where he has become a councillor of the Municipal Corporation, Municipal Council, Zilla Parishad or as the case may be, a member of the Panchayat Samiti after such date, within thirty days from the date on which he has taken his seat in the Municipal Corporation, Municipal Council, Zilla Parishad or, as the case may be, Panchayat Samiti, or in any case, within such further period as the Commissioner or, as the case may be, Collector may for sufficient reason allow. (3) In the event of any increase in the strength of a municipal party or a zilla parishad party in relation to a councillor and the panchayat samiti party in relation to a member, consisting of only one member, the provisions of sub-rule (1) shall apply in relation to such party as if such party had been formed on the first date on which its strength increased. (4) Whenever any change takes place in the information furnished by the leader of a wp4189-11.doc 20 municipal party or a zilla parishad party, in relation to a councillor and by the leader of a panchayat samiti party, in relation to a member under sub-rule (1) or by a member under sub-rule (2), he shall as soon as may be thereafter and in any case not later than thirty days from the date on which such change has taken place or within such further period as the Commissioner, or, as the case may be, Collector may for sufficient reasons allow, furnish in writing the information with respect to such change to the Commissioner or, as the case may be, Collector. (5) Where a councillor in relation to a municipal party or 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.” Explanation: A Councillor in relation to a wp4189-11.doc 21 municipal party and a zilla parishad party and a member in relation to a panchayat samiti party, may be regarded as having abstained from voting only when he, being entitled to vote, voluntarily refrained from voting.” 16] Therefore, the information of formation of the party has to be provided in terms of this rule. The rules contemplate that the changes that may take place also have to be informed and sub-rule (5) provides for consequences and violation of any direction by the leader of the party. My attention is also invited to rule 4 which provides for information etc. to be furnished by Councillor or member. Sub-rule (1)(b) thereof provides for furnishing of particulars in the requisite form and sub-rule (2) of Rule (4) prescribes for furnishing of election certificate. Thus, in terms of sub-rule, clauses (a) and (b) speak of providing the particulars and declarations and sub-rule 2 provides for certifficate. Sub-Rule 3 states that summary of the information furnished by the Councillor in relation to a Municipal party and a zilla parishad party and member in relation to the P.S.Party, shall be published in the Maharashtra Government Gazette and if any discrepancy