LPA Nos. 250 to 254/11 1 IN THE HIGH COURT AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD LETTERS PATENT APPEAL NO. 250 OF 2011 IN WRIT PETITION NO. 4146 OF 2011 Shri. Jitendra Himmat Biraris, Age 45 yrs., Occu. Household, R/o. At Post Bhadgaon, Tq. Sakri, Dist. Dhule. ....Appellant. Versus 1. Kiran s/o. Gulabrao Patil, Age 30 yrs., Occu. Agriculture, R/o. Mehergaon, Tq. Dhule, District Dhule. 2. The District Collector, Dhule ....Respondents. Mr. V.J. Dixit, Senior Counsel h/f. Mr. P.D. Bachate, Advocate for appellant. Mr. K.G. Patil, Advocate for respondent No. 2. WITH LETTERS PATENT APPEAL NO. 251 OF 2011 IN WRIT PETITION NO. 4147 OF 2011 Bhivaji s/o. Bhatu Pawar, Age 45 yrs., Occu. Household, R/o. At Post Bhadgaon, Tq. Sakri, Dist. Dhule. ....Appellant. Versus 1. Kiran s/o. Gulabrao Patil, Age 30 yrs., Occu. Agriculture, LPA Nos. 250 to 254/11 2 R/o. Mehergaon, Tq. Dhule, District Dhule. 2. The District Collector, Dhule ....Respondents. Mr. V.J. Dixit, Senior Counsel h/f. Mr. P.D. Bachate, Advocate for appellant. Mr. K.G. Patil, Advocate for respondent No. 2. WITH LETTERS PATENT APPEAL NO. 252 OF 2011 IN WRIT PETITION NO. 4148 OF 2011 Kedabai Shantaram Jadhav, Age 28 yrs., Occu. Household, R/o. At Post Kasare, Tq. Sakri, Dist. Dhule. ....Appellant. Versus 1. Kiran s/o. Gulabrao Patil, Age 30 yrs., Occu. Agriculture, R/o. Mehergaon, Tq. Dhule, District Dhule. 2. The District Collector, Dhule ....Respondents. Mr. V.J. Dixit, Senior Counsel h/f. Mr. P.D. Bachate, Advocate for appellant. Mr. K.G. Patil, Advocate for respondent No. 2. WITH LETTERS PATENT APPEAL NO. 253 OF 2011 IN WRIT PETITION NO. 4149 OF 2011 LPA Nos. 250 to 254/11 3 Rajnibai Baburao Gharte, Age 45 yrs., Occu. Household, R/o. At Post Samode, Tq. Sakri, Dist. Dhule. ....Appellant. Versus 1. Kiran s/o. Gulabrao Patil, Age 30 yrs., Occu. Agriculture, R/o. Mehergaon, Tq. Dhule, District Dhule. 2. The District Collector, Dhule ....Respondents. Mr. V.J. Dixit, Senior Counsel h/f. Mr. P.D. Bachate, Advocate for appellant. Mr. K.G. Patil, Advocate for respondent No. 2. WITH LETTERS PATENT APPEAL NO. 254 OF 2011 IN WRIT PETITION NO. 4150 OF 2011 Soni s/o. Bharat Pawara, Age 38 yrs., Occu. Household, R/o. At Post Kodid, Tq. Shirpur, Dist. Dhule. ....Appellant. Versus 1. Kiran s/o. Gulabrao Patil, Age 30 yrs., Occu. Agriculture, R/o. Mehergaon, Tq. Dhule, District Dhule. 2. The District Collector, Dhule ....Respondents. Mr. V.J. Dixit, Senior Counsel h/f. Mr. P.D. Bachate, Advocate for appellant. Mr. K.G. Patil, Advocate for respondent No. 2. LPA Nos. 250 to 254/11 4 CORAM : NARESH H. PATIL & T. V. NALAWADE, JJ. Reserved on : 11th October, 2011. Pronounced on : 20th October, 2011. ORDER : [ PER T. V. NALAWADE, J. ] 1. All the proceedings are filed against the common order dated 5.8.2011 passed by the learned Single Judge of this Court in aforesaid writ petitions. In writ petitions the appellants had challenged the order made by the Collector, Dhule, by which they are disqualified under section 3 of the Maharashtra Local Authority Members' Disqualification Act, 1986 [hereinafter referred to as the "Act" for short]. Heard the advocate for the appellants and Assistant Government Pleader for the respondent No. 2. 2. All the appellants got elected as Councillors of Zilla Parishad, Dhule, on the tickets of Nationalist Congress Party [for short "NCP"] in the year 2008 and their names were published in the official gazettes of Zilla Parishad on 8.12.2008. In the Zilla Parishad the strength of Congress I Party was 21, the strength of NCP was 8, the strength of Shivsena was 13 and the strength of Bhartiya Janta Party [for short "BJP"] was 9 and there were 3 independent Councillors. After this election, the elections to the LPA Nos. 250 to 254/11 5 posts of President and Vice President of Zilla Parishad were to be held and accordingly the Returning Officer called special meeting of Zilla Parishad on 30.12.2008. 3. The elections were held on 30.12.2008. Shri. Budha Pawar of Congress Party and Smt. Lalita Bahiran of NCP contested the elections for the posts of President and Vice President, respectively. There was coalition between the Congress I and NCP. Similarly, there was coalition between political parties Shivsena and BJP. These parties fielded the candidates like Shri. Surdhir Jadhav and Bharat Ishi for the post of President and Vice President, respectively. There was voting by show of hands. All the appellants voted for candidates fielded by Shivsena and BJP and so Shri. Sudhir Jadhav and Bharat Ishi got elected. 4. Shri. Kiran Patil, respondent No. 1, filed petitions against the appellants before the Collector, Dhule to inform that there was party whip to vote in favour of candidates fielded by Congress party and NCP and the appellants had disobeyed the whip and there was defection. He requested for disqualification of the appellants from holding the post of Councillors of Zilla Parishad, Dhule. Initially, the appellants filed reply and took some technical objection regarding the absence of verification of the LPA Nos. 250 to 254/11 6 contents of petitions filed by Kiran Patil and maintainability of the petitions was challenged. A request was made to decide these points as preliminary issues and it was contended that the procedure laid down in Rule 6 of the Maharashtra Local Authority Member's (Disqualification) Rules, 1987 [hereinafter referred to as the "Rules"] was not followed. Writ Petitions were filed for seeking directions to the Collector to decide these points as preliminary issues. The Collector decided these points and held that the petitions were maintainable. This decision was challenged by filing writ petitions. The writ petitions came to be dismissed and the Collector was allowed to proceed further for deciding the disqualification petitions. However, in the writ petitions, a direction was given to the Collector, not to disqualify the appellants for some time to give opportunity to them to challenge the decision of the Collector. Even, prior to that when Collector was about to decide the proceedings, petitions were filed for obtaining stay order. Even, letters patent appeals were filed by appellants against the decision given by the learned Single Judge of this Court in writ petitions like Writ Petition No. 2151/2011. Special leave petition was filed in the Supreme Court to challenge the decision given by the Division Bench of this Court as the Division Bench confirmed the findings of the learned Single Judge. The Apex Court dismissed the special leave petition and gave LPA Nos. 250 to 254/11 7 direction to Collector to dispose of the matters expeditiously and then the Collector gave decision that the appellants stand disqualified in view of provisions of section 3 (1) (b) of the Act. 5. Before the Collector, a defence was taken by the appellants that Kiran Patil was not the leader of Zilla Parishad party of NCP and he was not empowered to issue the whip. The extensive written statement was filed and arguments were advanced by the appellants after deciding the preliminary objections/ preliminary issues. A defence was taken that there was no alliance between Congress I and NCP. It was further contended that these two parties together had no clear majority in Zilla Parishad. A defence was taken that appellants were not called for party meeting in which the candidature of some Councillors for the post of President and Vice President was fixed. Another defence was taken that the so called leader of Zilla Parishad party of NCP had no authority to call party meeting or to issue the whip as against Councillors (5) of NCP, who were not supporting Kiran Patil. A defence was taken that the appellants were out of station for religious pilgrimage and they had gone to Tirupati and Kolhapur and so they were not aware of any such whip. It was also contended that there was split in Zilla Parishad party and so such whip could not have been issued. LPA Nos. 250 to 254/11 8 6. The Collector has held that present appellants did not follow the directions of their political party (NCP), they all did not attend the meeting dated 27.12.2008 and they further defected to the rival political parties like Shivsena and BJP when the voting to the posts took place. The Collector held that in view of the provisions of section 3 (1) (b) of the Act, the appellants were disqualified. The learned Single Judge has confirmed these findings of Collector. There are findings that Shri. Kiran Patil was leader of Zilla Parishad Party of NCP, he was authorize to issue whip and he had issued whip to vote the candidates fielded by Congress I party and NCP. In respect of one defence taken before the learned Single Judge, the learned Single Judge has observed that the term "directions issued" used in section 3 (1) (b) of the Act shows that the political party is expected to prove that the whip was issued and it is not expected to prove that the whip was actually served on the defectors/persons like appellants. 7. In respect of technical defence, preliminary point, orders are made by this Court and the Apex Court. In the appeals, the arguments are advanced for appellants mainly on the point of interpretation of the term "directions issued". It was submitted that this term needs to be interpreted in such a way that the party LPA Nos. 250 to 254/11 9 interested in getting the order of disqualification must be put to the burden of proof of the actual service of whip, the communication of whip to the so called defectors. The Assistant Government Pleader supported the decision given by the learned Single Judge. 8. Many reported cases were cited before the learned Single Judge and they were also referred to in the present proceedings, which are as follows :- (1) Sadashiv H. Patil Vs. Vithal D. Teke, 2001 (1) Mh.L.J. 312, (2) Kedar Deshpande Vs. Bhor Municipal Council, (2011) 2 SCC 654, (3) Dr. Mahachandra Prasad Singh Vs. Chairman Bihar Legislative Council, AIR 2004 SCW 6278, (4) Shri. Tolaram Govinda Vs. State of Maharashtra, 2004 (3) ALL M.R. 167, (5) Tarlochan Dev Sharma Vs. State of Punjab & Ors., 2001 (6) SCC 260, (6) Chintamani G. Velkar Vs. State of Maharashtra & Ors., (2000) 3 SCC 143, (7) Kihoto Hollohan Vs. Zachillhu and LPA Nos. 250 to 254/11 10 others, (1992) (Suppl.) 2 SCC 651. 9. This Court has gone through the observations made by the Apex Court in the aforesaid cases and also the relevant provisions of the Act, the Rules and also Xth Schedule of Constitution of India. The preamble and title of the Act shows that the object behind the Act is to provide for disqualification of the members of certain local authorities on the ground of defection and for matters incidental and connected therewith. By 52nd Amendment to the Constitution of India the provisions as to disqualification on the ground of defection were made in the Constitution in the year 1985. If the provisions of Schedule X of the Constitution and the Act are compared, it can be said that on the same principles and for the same reasons, the Act for local bodies has been made. The statement of objects and reasons appended to the Bill introduced in the Parliament in this behalf stated that :- "The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it. With this object, an assurance was given in the Address by the President to Parliament that the Government intended to introduce in the current session of LPA Nos. 250 to 254/11 11 Parliament an anti-defection Bill. This Bill is meant for outlawing defection and fulfilling the above assurance." 10. In the case of Kihota Hollohan cited supra, the Apex Court has observed that the object of anti-defection Act is to curb the evil of political defection motivated by lure of office or other similar considerations which endanger the foundation of our democracy. In the case of Kedar Deshpande cited supra the provisions of section 3 (1) (a) of the Act are considered and interpreted. The provisions run as follows :- "3. Disqualification on ground of defection.- (1) Subject to the provisions of Sections 4 and 5, a councillor or a member belonging to any political 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" 11. The Apex Court has held that these provisions are absolute in terms and mandatory. If the provision of section 3 (1) (b) is compared with the aforesaid provisions and the proviso given to this sub-section is kept in mind, it can be said that there is similar mandatory nature in this provisions also. These LPA Nos. 250 to 254/11 12 provisions run as follows :- "3. Disqualification on ground of defection.- (1) Subject to the provisions of Sections 4 and 5, a councillor or a member belonging to any political party aghadi or front shall be disqualified for being a councillor or a member - (a) ............ (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 part 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" LPA Nos. 250 to 254/11 13 12. The proviso shows that if there was no prior permission of the party, a Councillor cannot even remain absent at the time of such voting, if there is voting for elections to the post of Local Bodies under the local law. The proviso shows that even the political party cannot condone such indiscipline/ defection. Thus, a Councillor cannot remain absent or cannot abstain from voting in such a case unless he has obtained prior permission of his political party. This implies that the Councillor is expected to keep in touch with his/her political party whenever such election is declared and he is expected to get information about the directions, if any, of the political party in this regard. The mandatory nature of these provisions needs to be kept in mind at the time of interpretation of various terms used in these provisions. 13. In the case of American Home Products Corporation Vs. Mac Laboratories Pvt. Ltd. & Anr. reported in AIR 1986 SUPREME COURT 137, the Apex Court has held that, "It is well know principle of interpretation of statues that a construction should not be put upon a statutory provision which would lead to manifest absurdity or futility, palpable injustice, or absurd inconvenience or anomaly." In the case reported as AIR 1965 Supreme Court 1296, The State of Rajasthan Vs. Mrs. LPA Nos. 250 to 254/11 14 Leela Jain and others, the Apex Court has held that, "Unless the words are unmeaning or absurd, it would not be in accord with any sound principle of construction to refuse to give effect to the provisions of a statue on the very elusive ground that to give them their ordinary meaning leads to consequences which are not in accord with notions of propriety or justice ....." 14. The object behind the Act is already quoted. The object behind the Act, the scheme of the Act and the mandatory nature of section 3 of the Act shows that the interpretation needs to be such that it should not be against the spirit behind the Act and the interpretation should be done in such a way that the provisions become meaningful and enforcible. 15. In legal glossary [Edn. 1988] prepared by the Government of India, the meaning of relevant terms is given as under :- (i) "serve" - to make legal delivery of a process (U/s. 27 of General Clauses Act) (ii) "issue" - the action of sending or giving out officially or publically. Thus, the meaning of the two terms is different. LPA Nos. 250 to 254/11 15 16. In view of the aforesaid position of law, the term "issued" used in section 3 (1) (b) of the Act needs to be read as it is and the additional term like "served" cannot be read into the term actually used in the section. Thus, the law requires the proof of "directions issued" and not of "directions served" or "direction communicated" in this regard. If other interpretation is made, it will cause absurd inconvenience to the political parties involved and due to the tactics which are generally played by the defectors, the provisions will become futile. On the other hand, due to the scheme of the Act, object behind it and the nature of the provision of section 3 (1) (b) of the Act, it needs to be presumed that to avoid the consequences mentioned in section 3 (1) (b), it is the duty of every Councillor to act in such a way that provision is not attracted against him and for that he must keep in touch with his/her political party. Considering the importance of such political decision and the elections, the Councillor cannot be allowed to take defence of ignorance of party direction by remaining out of station at such important time. When a Councillor votes against own party candidate or votes to candidate of rival party, it becomes more easy to draw inference against such Councillors about his intention to defect. LPA Nos. 250 to 254/11 16 17. For proving that "direction was issued" NCP has given evidence of Kiran Patil, the leader of Zilla Parishad Party of NCP and some documentary evidence is also produced. Documents include copies of notices sent for attending meeting dated 27.12.2008 and the record of Post Office in that regard. The documents include the record of resolution passed in the meeting dated 27.12.2008 in which Shri. Kiran Patil was given authority to issue whip as a leader of Zilla Parishad Party of NCP. The record of resolution shows that one of the appellant Smt. Soni Pawara attended the party meeting dated 27.12.2008. This lady is not examined to give evidence in rebuttal. The then District President of NCP Shri. Deshmukh was examined as witness by appellants and he has admitted that such meeting was held on 27.12.2008 and the resolution in favour of Shri. Kiran Patil was passed. Thus, there is evidence of witnesses of the appellants themselves against them. 18. Smt. Rajnibai Gharte, one of the appellant, is examined to give evidence in rebuttal. As it is the case of the appellants that they were out of station and they were not called for meeting dated 27.12.2008, the evidence of Rajnibai is of no use for rebuttal purpose. It is already observed that it was necessary for the appellants to remain in touch with the party and LPA Nos. 250 to 254/11 17 further, there is the record with the political party to show that the intimation of the meeting dated 27.12.2008 was sent well in advance. This evidence and record is sufficient to infer that four, out of five appellants avoided to remain present in the meeting dated 27.12.2008. The case of the appellants that their group had not consented to the appointment of Kiran Patil as leader of Zilla Parishad party and the circumstance that they were acting together, is sufficient to infer that the information which was within the knowledge of Smt. Soni Pawara was also within their knowledge. There is more record. Notices were published in newspaper by the District President of NCP and Shri. Kiran Patil to the effect that the decision was to be taken regarding nomination of the persons for the post of President and Vice President and for that purpose, the party had called meeting at 9 am in the office of the party. Though there is no record of such meeting, held in the office of NCP on 30.12.2008, these notices published in the newspapers, are sufficient to show that the party attempted to contact all its Councillors and it had intention to inform to them the decision of the party. In view of these circumstances also, it was necessary for the appellants to contact the party persons and to get instructions with regard to the directions of the party in respect of the voting which was to take place on 30.12.2008 in the noon time. LPA Nos. 250 to 254/11 18 19. Against the appellants atleast two directions are proved. In the resolution dated 27.12.2008 the party had authorize Kiran Patil to issue whip and accordingly the whip was issued, this direction is proved. The whip issued by Kiran Patil himself for directing the Councillors of NCP to vote in favour of the candidates fielded by Congress I party and NCP is also proved. There is more record to show that as the appellants were avoiding the contact of Kiran Patil, attempt was made in the office of Zilla Parishad, at the time of election to read the whip. This record is sufficient to prove that the whip was issued by the party and party had fielded a candidate for Vice President and the party was supporting the candidate fielded by Congress I party for the post of President. The voting was by show of hands and admittedly all the appellants voted in favour of candidates fielded by parties Shivsena and BJP. 19. Thus, there are many circumstances and there is the record starting from 19.12.2008 to show that the party was attempting to contact the appellants to inform about the directions, but after 19.12.2008, four out of five appellants left station to avoid the contact with the party. The subsequent material like resolution passed by party on 27.12.2008 to LPA Nos. 250 to 254/11 19 authorize Kiran Patil to issue whip, the subsequent intimation given by the party and notices published by the party in newspapers are sufficient to infer that whip was issued by the party. It is already observed that the circumstances that the appellants voted against the party candidate in the election goes long way against them. Thus, on facts also there is no case at all for the appellants. As there are no merits in the appeal, all the appeals stand dismissed. [ T. V. NALAWADE, J.] [ NARESH H. PATIL, J.] ssc/ LPA Nos. 250 to 254/11 20 20. After pronouncement of the order, counsel for appellants prayed for continuation of interim relief for a period of four weeks. Request is opposed by A.G.P. We are not convinced to accept the request for continuation of interim relief. Request is rejected. [ T. V. NALAWADE, J.] [ NARESH H. PATIL, J.] ssc/