(1) WP 8576.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 8576 OF 2010 Balaji Ganeshrao Bacchewar, Age : 37 years, Occu.: Agriculture, R/o : Mirchi Market Yard, at Post Naigaon, Tq. Naigaon, Dist. Nanded PETITIONER VERSUS 1. Laxman Ganeshrao Tahkkarwar, Age : 46 years, Occu.: Agri., R/o : Kasarali, Tq. Biloli, District : Nanded 2. The Collector, Nanded, District Nanded 3. The Chief Executive Officer, Zilla Parishad, Nanded RESPONDENTS ..... Mr. V.J. Dixit, Sr. Advocate i/b. Mr. P.D. Bachate, Advocate for the Petitioner. Mr. P.M. Shah, Sr. Advocate i/b. Mr. S.S. Naik, Advocate for the respondent no.1 Mr. S.K. Tambe, A.G.P. for the Respondent-State. Mr. S.G. Sangle, Advocate for the respondent no.3 ..... CORAM : V.R. KINGAONKAR, J. DATED : 14TH JANUARY, 2011 ORAL ORDER:- 1. By this Petition, the petitioner challenges the order of disqualification rendered by the learned Collector, Nanded, under section 3(1)(a) of the (2) WP 8576.2010 Maharashtra Local Authority Members Disqualification Act, 1986 (For short "MLAMD Act"). 2. The petitioner contested the general elections for Zilla Parishad Nanded from Barbada constituency. He was elected as a Councilor of Zilla Parishad, Nanded. There is no dispute about the fact that he was member of Bharatiya Janata Party (B.J.P.) prior to his such election and was elected as a candidate fielded by the B.J.P. for the Zilla Parishad elections. Lateron, elections for the Legislative Assembly were declared. Allegedly, the District President of the B.J.P. on 25.9.2009 issued a whip to the effect that all the elected members of the B.J.P. shall support the recognized candidate who was fielded from 89th Naigaon M.L.A. Constituency. Admittedly, the petitioner filed his candidature vide nomination form dated 25.9.2009 as a candidate for 89th Naigaon M.L.A. Constituency on ticket of "Jansurajya Shakti Party" a recognized political party. Though there is dispute about due service of the whip and the legal authority of the person who issued the whip, yet there is no dispute regarding the fact that the petitioner had contested the (3) WP 8576.2010 Legislative Assembly elections in the month of September, 2009 as a candidate fielded by the "Jansurajya Shakti Party". 3. The respondent no.1 filed an application seeking declaration that the petitioner was disqualified to continue himself as elected member of the Zilla Parishad. The petitioner disputed the maintainability of the application on various grounds and chiefly on the ground that the application was not duly verified as per the procedure. He raised preliminary issue regarding the maintainability of the application on technical grounds of non- compliance of the rules which required due verification of the application and attestation thereof. The petition was however proceeded with. The learned Collector by order dated 3.8.2000, set out the issues involved in the matter. 4. It is worthy to be mentioned that the petitioner had filed Writ Petition no. 4514 of 2010 against the interim order dated 19.4.2010 rendered by the Collector whereby his objection regarding the maintainability of the proceedings was rejected. By (4) WP 8576.2010 order dated 28.5.2010, the learned Vacation Judge (Gangapurwala, J.) allowed the Petition and directed the Collector, Nanded to decide the application filed by the petitioner under rule 6 of the MLAMD Rules, 1987. It appears that thereafter the petitioner filed his elaborate written arguments. 5. The learned Collector did not decide the preliminary objection pertaining to maintainability of the application and instead of dealing the technical objection he proceeded to finally adjudicate the application on merits. The learned Collector came to the conclusion that the petitioner was disqualified because inspite of service of the whip, he had not supported the B.J.P. candidate from the 89th Naigaon M.L.A. Constituency, and on the contrary, had himself contested the election as a candidate fielded by the "Jansurajya Shakti Party". It is this order of the learned Collector that the petitioners seeks to impugn on the ground that the order is arbitrary, illegal and rendered without appreciating the purport of the order dated 28.5.2010 rendered by this Court. (5) WP 8576.2010 6. Mr. Dixit, learned Senior counsel for the petitioner would submit that the Collector failed to decide the preliminary issue regarding the maintainability of the application filed by the respondent no.1, and therefore, the impugned order suffers from illegality. It is argued that the petitioner was not given due opportunity by the learned Collector to explain his stance regarding non-service of the whip as well as the non- availability of the authority to the person who had issued the whip. It is contended that the petitioner could not be disqualified when there was no evidence led to infer that he had abandoned the B.J.P. party and that too voluntarily by his conduct or otherwise. It is pointed out by learned Senior counsel that a letter has been issued by Ranjita Jadhav to the effect that she is the District Leader of the B.J.P. party, Nanded and, therefore, the whip issued by somebody else was illegal. It is contended that the due service of the whip is not at all proved nor the petitioner was bound to follow the directions issued by the un-authorised person who was self-proclaimed District leader of the B.J.P. party. The learned (6) WP 8576.2010 Senior counsel appearing for the respondent no.1, however submitted that the petitioner could be disqualified only for the reason that he had contested the elections from 89th Naigaon M.L.A. constituency on ticket of some other party i.e. "Jansurajya Shakti party". To counter this argument, Mr. Dixit would submit that the petitioner had lateron supported the B.J.P. candidate in another in house election which is a matter of record, and therefore, there was no voluntary act of giving up the membership of the B.J.P. party. It is further argued that the so-called act done by the petitioner could not have been regarded as sufficient to infer his voluntary dis-association from the B.J.P. party for the purpose of his functioning as Member of the Zilla Parishad. In other words, it is argued that the act done by the petitioner was outside the realm of the in-house activity of the Zilla Parishad and, therefore, he could not have incurred the disqualification. 7. Section 3(1) reads as follows:- "3. Disqualification on ground of defection- (7) WP 8576.2010 (1) Subject to the provisions of Sections 4 and 5, a councillor or a member belonging to any political or party aghadi or front shall be disqualified for being a councillor or a member- (a) If he has voluntarily given up his membership of such political party or aghadi or front; or (b) If he votes or abstains from voting in any meeting 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 any of them in this behalf, without obtaining in either case, the prior permission of such political party or aghadi or front, person or authority and such voting or abstention has not been condoned by such political party or aghadi or front, person or authority within fifteen days from the date of such voting or abstention : Provided that, such voting or abstention without prior permission from such party or aghadi or front, at election of any office, authority or committee under any relevant municipal law or the Maharashtra Zilla Parishad and Panchayat Samitis Act, 1961 shall not be condoned under this clause.:" (8) WP 8576.2010 8. Perusal of section 3 reveals that the disqualification of the Councilor or a Member may be attributable to his voluntarily giving up the membership of such political party or aghadi or front which had fielded him in the election and also on account of indiscipline committed by him due to non- compliance of the whip or directions. It is explicit that sub-clause (a) of sub-section (1) and sub-clause (b) of sub-section (1) of section 3 operate in different fields. The proof regarding due service of the whip and due authority of the person who issued the whip is required to be proved if the question about the alleged disqualification would fall within the sub-section (b) of section 3(1) of the MLAMD Act. There is no question of proof regarding issuance of whip and the other compliance required to be proved when the disqualification is attributable to section 3(1)(a) of the MLAMD Act. What is required to be considered, therefore, is whether such a Councilor or a Member voluntarily gave up his membership of the political party which had fielded him to become such a Member or Councilor in the house. It is well settled that the expression "has voluntarily given up (9) WP 8576.2010 his membership of such political party" as used in section 3(1)(a) of the MLAMD Act imply an act which could be inferred on account of conduct of a Member. It can be also inferred on basis of his own admission. It is not necessary that in each and every case evidence is required to be adduced to infer the voluntary act of the Member or Councilor so as to hold that he has voluntarily given up the membership of the relevant political party. 9. In "Jagjit Singh V. State of Haryana and others [(2006) 11 SCC 1] the Apex Court observed: "48. Relying upon Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi it was sought to be contended on behalf of the petitioners that the admissions allegedly made before the media could be explained and shown as erroneous and not binding on them and, therefore, opportunity ought to have been granted to them to prove so and the failure to grant opportunity vitiates the impugned orders. The petitioners had failed to plead how the admissions/statements made by them were erroneous. Had they done so, then the question of its proof would have arisen. Instead of so doing, the petitioners only took shelter under the general vague denial pleading that they wish to adduce (10) WP 8576.2010 evidence. It is also to be remembered, as observed by the Supreme Court in the aforesaid case, that admission is the best evidence that can be relied upon, and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous. The petitioners have failed to satisfy the latter part." 10. In the instant case, the petitioner did not explain his admission and in fact there was no question of explaining the admission because admittedly he had contested the election of 89th Naigaon M.L.A. Constituency as candidate of "Jansurajya Shakti Party". There is no dispute about the fact that he did not support the B.J.P. candidate of that constituency and had himself set up his candidature on nomination of some other political party. Nobody can involuntarily contest such election. The very act of the petitioner of filing nomination paper as a candidate of some other party for the 89th Naigaon M.L.A. Constituency by itself is sufficient to infer that he gave up his membership of the B.J.P. party. The moment he gave up his membership of the B.J.P. on account of his such act, the disqualification would arise. It is well settled (11) WP 8576.2010 that the disqualification process cannot be deferred by any means and it would be instantaneous. The only thing required was to declare such disqualification. Even assuming that subsequently he had supported another candidate of the B.J.P. in some other election, it does not wipe out his "Political sin" which had already been committed. In other words, this is a case in which the principle of "Res Ipsa Loquitor" is applicable. Therefore, there was no question of giving any opportunity to the petitioner to lead evidence and allow him to explain as to why he had contested the 89th Naigaon M.L.A. Constituency election as a candidate of some other party notwithstanding he being elected Zilla Parishad Member of the B.J.P. The very purpose of section 3(1)(a) of the MLAMD Act is to arrest changing of loyalties and fluctuations which earlier were colloquially known as "Aayaram Gayaram phenomenon". 11. Though the learned senior counsel for the respondent no.1 has referred to a catena of case law including "Dr. Mahachandra Prasad Singh Vs. Chairman, Bihar Legislative Council and others [(2004) 8 SCC 747], "Udaysingh Sardarsingh Rajput Vs. State of (12) WP 8576.2010 Maharashtra and others 2007 (3) Mh.L.J. 17", "Ravi S. Naik Vs. Union of India and others (1994 Supp (2) SCC 641), "Narsinghrao Gurunath Patil Vs. Arun Gujrathi Speaker and others [2003(1) Bom.C.R. 363], "G. Viswanathan Vs. Hon'ble Speaker Tamil Nadu Legislative Assembly, Madras and anr. [1996(2) SCC 353], Uttam Singh Duggal and Co. Ltd. Vs. United Bank of India and ors. [(2000) 7 SCC 120] and case of "Rajendra Singh Rana and ors. Vs. Swami Prasad Maurya and others [(2007) 4 SCC 270]", yet it is not necessary to elaborately deal with the ratio laid down in all these cases. For, the issue involved in the present Petition is succinctly clear and is squarely covered by the case of "Jagjit Singh V. State of Haryana (Supra). 12. So far as the technical objections raised by the petitioner are concerned, it may be stated that the objection pertaining to improper verification of the affidavit appended to the application of the respondent no.1 is not of substantial nature. It does not invalidate the proceedings. In "Kedar Shashikant Deshpande etc. etc. V. Bhor Municipal Council and ors. etc. etc. - (13) WP 8576.2010 Civil Appeal no. 10452-10457 of 2010, the Apex Court held that Rule 6(4) of the MLAMD Rules is directory in nature. The defect can be cured at any point of time. The defect does not, in any case, vitiate the proceedings itself. 13. Taking overall view of the matter, I do not find any substantial question involved in the Petition. Petition is therefore dismissed. No costs. 14. At request of learned Senior counsel for the petitioner, ad-interim relief granted by this Court while issuing notice vide order dated 28.9.2010 is continued for four (4) weeks. Sd/- [V. R. KINGAONKAR, J.] arp