*1* wp.8391.10.921.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8391 OF 2010 WITH CIVIL APPLICATION NOS.2808 OF 2010 & 2857 OF 2010 Smt.Kavita Annasaheb Jong and another. ..Petitioners -Versus- Jayram Krishnarao Patil and others. ..Respondents .......... Mr.A.A.Kumbhakoni a/w Mr.Amit B. Borkar, for the Petitioners. Mr.G.M.Savagave, for the Respondent No.1. Ms.P.S.Cardozo, AGP, for the Respondent No.4. .......... CORAM : S.C.DHARMADHIKARI, J. Date : 07th June, 2011. P.C.: 1 Heard. Rule. By consent, the petition is finally disposed of. 2 The Petitioners by this Writ Petition under Articles 226 and 227 of the Constitution of India, impugn the judgment and order dated 12.10.2010 passed by the Respondent No.4 Collector allowing Disqualification Petition No.2/2010 and disqualifying them under Section 3 of the Maharashtra Local Authority Members’ Disqualification Act, 1986. 3 It is common ground that one Jayram Krishnarao Patil and Suresh Mallu Kadale, who are Respondent Nos.1 and 2 to the present petition, filed an application to disqualify the Petitioners. One Ganpatrao Balu Pomaje was impleaded as formal Respondent No.3 to this petition. The application seeks to disqualify the Petitioners on the ground that they have been elected as members of Kurundwad Municipal Council, Taluka *2* wp.8391.10.921.sxw Shirol, District Kolhapur. After the elections were over, there were two Aghadis/fronts namely Janavikas Aghadi and Shahar Sudharna Aghadi. The original Applicants, namely, Respondent Nos.1 and 2 before me are members of the Janavikas Aghadi. The present Petitioners who are the original Respondent Nos.1 and 2 were members of this Aghadi. It is alleged that the Petitioners before me had given declaration in 2006 that they are part of the Janvikas Aghadi. Both fronts are registered with the Collector, Kolhapur. It is alleged that the Petitioner No.1 before me was elected as President of the Municipal Council on the basis of the votes of Janvikas Aghadi. That election was held on 17.12.2006 and the Petitioner No.1 continued as President upto 23.06.2008. Both the Petitioners before me have not resigned from Janvikas Aghadi nor have they indicated that they have disassociated themselves by resigning therefrom. In such circumstances, the Petitioners cannot leave or abandon the said Janvikas Aghadi. 4 There were applications made by the Respondent No.3 for disqualification of the Petitioners way back in the year 2007 and those applications were rejected but while contesting the same, the present Petitioners had filed affidavits therein indicating that they are the members of Janvikas Aghadi. 5 However, for purely political gains, the present Petitioners allegedly colluded with Shahar Sudharna Aghadi so as to get Petitioner No.1 appointed as President of the Municipal Council. That they have done by ignoring the whip issued by Janvikas Aghadi. In fact the allegations in paragraph Nos.3 and 4 of the application made by the Respondent Nos.1 and 2 are that in violation of the order and direction/whip, the Petitioner No.1 contested the election of the President and got herself elected as President on 20.06.2009. She had done so by *3* wp.8391.10.921.sxw not disassociating herself or by obtaining any consent of Janvikas Aghadi. In paragraph No.4 of the application, it is alleged that the post of the President of Municipal Council was reserved for backward class woman, therefore, only the Petitioner No.1 could have been held to be eligible to contest the same. Thus, by associating herself with Shahar Sudharna Aghadi and by joining it, she has been elected unopposed as President of the Municipal Council. Similar allegation is made with regard to the post of Vice-President and the further allegation in that behalf is that ignoring and violating the whip, the present Petitioners have supported the rival Aghadi. For all these reasons, they stand disqualified and should be declared as such. 6 Upon this application being served and contested, the adjudicating authority namely the Collector proceeded to frame the charges, which read thus:- “1 That the opponent No.1 contested the election of president on 20.06.2009 and got elected by violating the directions and whip of Janvikas Aghadi. 2 That on 20.06.2009 at the time of election of vice president, the opponent No.1 and 2 by violating the whip/ directions of Janvikas Aghadi voted in favour of Abhijit Dadgonda Patil who was candidate of Shahar Sudharna Aghadi. 3 That on 13.01.2009 at the time of election of president, the opponent No.1 and 2 voted against the candidate of Janvikas Aghadi Mrs.Ratnaprabha Balaso Gaikwad and they supported the candidate of Mrs.Sunanda Dhanpal Alase from Shahar Sudharna Aghadi. Thus, the opponent No.1 and 2 have incurred disqualification within the meaning of Section 3(1)(a) and Section 3(1)(b) of the Maharashtra Local Authority Members’ Disqualification Act, 1986.” 7 Thereafter, the matter was heard by the Collector and he has *4* wp.8391.10.921.sxw made the impugned order disqualifying the Petitioners. 8 The submission of the learned counsel for the Petitioners is that the Collector has completely lost sight of the provisions with regard to disqualification as prescribed in law. Both disqualifications that are alleged in the present matter have distinct and different consequences. It is submitted that the allegation of disqualification for violation of the direction of the Party is a distinct matter than giving up membership of Aghadi voluntarily. Later disqualification is subject matter of a separate sub-clause and has consequences clearly demarcated in that sub-clause. In such circumstances, by glossing over the matter and framing charges which would not take care of both allegations and disqualifications, the Collector has proceeded to disqualify the Petitioners. Further, the Collector has not passed any order nor has taken any cognizance of the application made by the Respondent No.2, Suresh Kadale, who did not wish to contest the proceedings and sought to withdraw himself from the same. No order was made on the said application. It is contended that the remaining Petitioner i.e. the Respondent No.1 before me could not have proceeded with the application for disqualification as he does not satisfy the requirements prescribed by law enabling him to proceed with the application. For all these reasons, the impugned order be set aside. 9 Mr.Savagave, learned counsel for the Respondent No.1 and Ms.Cardozo, the learned AGP for the Respondent No.4 Collector, supported the impugned order by pointing out that the Collector was right in the conclusion that even if there is no independent or adequate proof of whip having been duly served, yet, the Petitioners incurred disqualification on the ground that they have voluntarily given up their membership of Janvikas Aghadi as it is admitted that they contested the election to the post of President on the support of the rival Aghadi, *5* wp.8391.10.921.sxw namely, Shahar Sudharna Aghadi. Therefore, merely because there is some procedural irregularity, this Court should not interfere with the order of the Collector as the ultimate conclusion is sustainable. 10 Reliance is placed upon the judgment of this Court reported in 2007(1) Bom. C.R. 885, Udaysingh Sardarsingh Rajput v/s State of Maharashtra & others. (Writ Petition No.3603/2006 decided on 08.12.2006/09.01.2007). 11 With the assistance of the learned counsel appearing for the parties, I have perused the petition and annexures thereto, so also, the relevant statutory provisions and the decision brought to my notice. 12 The Maharashtra Local Authority Members’ Disqualification Act, 1986 after setting out the definitions, provides for disqualification on the ground of defection. It is clear from preamble of the Act that it intends to provide for disqualification of members of certain local authorities i.e. Municipal Corporation, Municipal Council, Zilla Parishad and Panchayat Samiti, on the ground of defection and for matters incidental and connected therewith. Section 3 of the Act reads thus:- “3. (1) Subject to the provisions of [section 5] a councillor or a member belonging to any political party or aghadi or front shall be disqualified for being it 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 a 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 *6* wp.8391.10.921.sxw 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 Parishads and Panchayat Samitis Act, 1961 shall not be condoned under this clause; Explanation:- For the purposes of this section- (a) a person elected as a councillor, or as the case may be, a member shall be deemed to belong to the political party or aghadi or front, if any, by which he was set up as candidate for election as such councillor or member; (b) a nominated [concillor] shall (i) where he is a member of any political party or aghadi or front on the date of his nomination be deemed to belong to such political party or aghadi or front, (ii) in any other case, be deemed to belong to the political party or aghadi or front of which he becomes, or as the case may be, first becomes a member of such party or aghadi or front before the expiry of six months from the date on which he is nominated; (c) a "nominated member", in relation to a Panchayat Samiti, includes an associate member, referred to in clause (c) of sub- section (1) of section 57 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961. (2) An elected councillor, or as the case may be, member who has been elected as such otherwise than as a candidate set up by any political party or aghadi or front shall be disqualified for being a councillor, or as the case may be, a member if he joins any political party or aghadi or front after such election. (3) (deleted) (4) Notwithstanding anything contained in the foregoing provisions of this section a person who on the commencement of this Act, is a councillor, or as the case may be, a member (whether elected or nominated as such councillor or member) shall- (a) where he was a member of a political party or aghadi or front immediately before such commencement, be deemed, for the purposes of sub-section (1), to have *7* wp.8391.10.921.sxw been elected as a councillor, or as the case may be, a member as a candidate set up by such political party or aghadi or front; (b) in any other case, be deemed to be an elected councillor, or as the case may be, member who has been elected as such otherwise than as a candidate set up by any political party or aghadi or front for the purpose of sub-section (2).” 13 A bare perusal thereof would indicate that the disqualification of the Councillor or member belonging to any political party, Aghadi or front shall be incurred if he has voluntarily given up his membership of such political party or Aghadi or front and if he votes or abstains from voting in any meeting of the local authority contrary to the directions issued by any political party or Aghadi or front to which he belongs. The disqualification is, therefore, incurred by virtue of two distinct acts, both of which are covered by the above provision. Therefore, when the adjudicating authority namely the Collector, who is impartial, is deciding the application seeking to disqualify an elected member on the ground of defection, he must be conscious of the fact that he is disqualifying the elected councillor and that disqualification must be either on the ground of voluntarily giving up his membership or defying the direction issued by the political party or Aghadi or front. It is clear to my mind that the Collector while framing the charges in this matter framed the same in such a manner so as to include the aspect of disqualification of the Petitioners for having contested the election of the President and getting elected by violating the directions of the Janvikas Aghadi. All three charges as framed and reproduced above, project nothing but allegations to disqualify the Petitioners under Section 3(1)(b) of the Act. Thus, there is no warrant for holding anything incidentally or impliedly, which was *8* wp.8391.10.921.sxw not the subject matter of the charges as framed. In the instant case, the Collector should have been aware of the fact that the pleadings must be perused as a whole and then the charges should be framed. In such circumstances, it is difficult to uphold the argument of Mr.Savagave that the final conclusion of the Collector is sustainable as disqualification is also incurred under Section 3(1)(a). He submits that there is enough material to conclude that the Petitioners have voluntarily given up the membership of the Janvikas Aghadi. Even that aspect has not been discussed in detail, but a cursory finding is rendered in the impugned order. The materials to support the same have not been referred leave alone the rival contentions. The other grievance is that the Petitioners were not heard and only their written argument was taken on record. I do not wish to enter into this controversy because the Collector while rendering his conclusions has not adverted to the charges framed by him nor has rendered his findings based thereon. In such circumstances, there is no scope for any inference being drawn. Even if any inference is to be drawn, the reasoning has to be very specific and clear and in absence thereof, the impugned order cannot be sustained. It is, accordingly, set aside. 14 However, as the matter pertains to the disqualification of the Petitioners on serious charges, it would be in the interest of justice to direct that the application made by the Respondent Nos.1 and 2 shall be decided afresh by the Collector on merits and in accordance with law, but without being influenced by the observations made in the impugned order. The Collector shall also advert to the contentions raised that one of the Petitioner before the Collector is not interested in proceeding with the Application and has withdrawn himself and even that issue should be decided in accordance with law. The Collector shall proceed from the *9* wp.8391.10.921.sxw stage of framing of the charges and if so advised, alter or reframe the charges as well. However, everything as directed above shall be done after hearing both sides and considering all their objections and arguments. The Collector shall pass a reasoned order afresh. The Collector is directed to abide by the above directions and implement them as expeditiously as possible and decide the matter within a period of six weeks from today. 15 A serious grievance is made by Mr.Kumbhakoni that the post of President of the Municipal Council which was being held by the Petitioner No.1 having fallen vacant upon the impugned order of the Collector, has been filled by not holding the election, but by directing the Tahasildar to take charge. The Tahasildar is acting as President. In the scheme of the relevant statute, there is no such provision which would enable the Collector to issue any direction to the Tahasildar to take charge. Therefore, the direction to that effect is unsustainable in law and is completely arbitrary. Mr.Kumbhakoni, therefore, submits that the Petitioner No.1 who has the benefit of an ad-interim order should be allowed to function as President or in the alternate the election of the President be held as expeditiously as possible, as all developmental works and other important activities have been held up. 16 Mr.Savagave, on the other hand, submits that ad-interim order does not enable the Petitioners to continue as elected councillors. Therefore, the Petitioners being reinstated or reinstalled as President would have serious legal consequences and the same should not be permitted even otherwise. Further, the Tahasildar has already taken charge and is functioning. In such circumstances, this Court should not issue any direction on the request as made and that too at the instance of persons who have already incurred disqualification. 17 After hearing both sides on this issue and in the peculiar facts *10* wp.8391.10.921.sxw of this case, ad-interim order as already made is not enough to reinstate or reinstall the Petitioner No.1 as President. Further, I have set aside the order of the Collector on the grounds and reasons indicated above, but having not expressed any opinion on the rival contentions and directing re-adjudication of the matter, it would not be fair and proper to allow the Petitioner No.1 to function as President, particularly after the Collector’s direction has been implemented and the Tahasildar has taken charge. Although, I do not approve the course adopted by the Collector as he has no authority in the matter to appoint anybody other than the elected councillor as President, in the facts peculiar to this case, it is directed that the Collector shall take steps to fill up the post of President of the Municipal Council in accordance with law. The matter is of disqualification of the Petitioners as members of the Municipal Council. Now, the Petitioners have been disqualified, but that order being set aside, would not enable them to continue or contest the post of President. In such circumstances, it is directed that the Collector should take steps to fill up the post of President within four months. The parties are directed to appear before the Collector on 15th June, 2011 at 10:30 a.m.. However, in the facts that are peculiar to this case and having directed the Collector to readjudicate the matter, interest of justice would be further served if the elections to the post of President are notified after the Collector takes decision on the disqualification of the Petitioners as Councillors. Ad- interim order dated 20.10.2010 as clarified above to continue till the Collector renders the decision. 18 In the facts peculiar to this case, it is not necessary to render any opinion on the view taken by the learned Single Judge in the case of Udaysingh Sardarsingh Rajput (supra). In the peculiar facts and in the light of the ultimate conclusion being sustainable in that case, the learned *11* wp.8391.10.921.sxw Single Judge has observed that the procedural drawbacks cannot make the order unsustainable. The observations have to be seen in the peculiar facts of that case and cannot be held to be laying down a general rule. 19 Rule is made absolute accordingly. In view of disposal of the Writ Petition, Civil Applications does not survive and the same are also disposed of. No costs. (S.C. Dharmadhikari, J)