1 wp 4146.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4146 OF 2011 Jitendra Himmat Biraris, Age : 38 Years, Occu. : Household, R/o At Post Balhane, Tq. Sakri, Dist. Dhule. .. Petitioner Versus 1. Kiran Gulabrao Patil, Age : 30 Years, Occu. : Agril., R/o Mehergaon, Tq. Dhule, Dist. Dhule. 2. The District Collector, Dhule. .. Respondents WITH WRIT PETITION NO. 4147 OF 2011 Bhivaji S/o Bhatu Pawar, Age : 45 Years, Occu. : Household, R/o At Post Bhadgaon, Tq. Sakri, Dist. Dhule. .. Petitioner Versus 1. Kiran Gulabrao Patil, Age : 30 Years, Occu. : Agril., R/o Mehergaon, Tq. & Dist. Dhule, 2 wp 4146.11 2. The District Collector, Dhule. .. Respondents WITH WRIT PETITION NO. 4148 OF 2011 Kedabai Shantaram Jadhav, Age : 28 Years, Occu. : Household, R/o At Post Kasare, Tq. Sakri, Dist. Dhule. .. Petitioner Versus 1. Kiran Gulabrao Patil, Age : 30 Years, Occu. : Agril., R/o Mehergaon, Tq. & Dist. Dhule, 2. The District Collector, Dhule. .. Respondents WITH WRIT PETITION NO. 4149 OF 2011 Rajnibai Baburao Gharte, Age : 45 Years, Occu. : Household, R/o At Post Samode, Tq. Sakri, Dist. Dhule. .. Petitioner Versus 1. Kiran Gulabrao Patil, Age : 30 Years, Occu. : Agril., R/o Mehergaon, Tq. & Dist. Dhule, 3 wp 4146.11 2. The District Collector, Dhule. .. Respondents WITH WRIT PETITION NO. 4150 OF 2011 Soni S/o Bharat Pawara, Age : 38 Years, Occu. : Household, R/o At Post Kodid, Tq. Shirpur, Dist. Dhule. .. Petitioner Versus 1. Kiran Gulabrao Patil, Age : 30 Years, Occu. : Agril., R/o Mehergaon, Tq. & Dist. Dhule, 2. The District Collector, Dhule. .. Respondents S/Shri V. J. Dixit, Senior Counsel i/by Shri P. D. Bachate, Shri R. R. Mantri, Shri V. D. Hon, Shri R. B. Raghuwanshi, Advocates for Petitioners. S/Shri P. M. Shah, Senior Counsel i/by Shri Amol Sawant, Shri Anturkar, Shri R. N. Dhorde, Shri S. S. Deshmukh, Advocate for the Respondent No. 1. Shri V. H. Dighe, A.G.P. for the Respondent No. 2. CORAM : S. V. GANGAPURWALA, J. DATE ON RESERVED FOR JUDGMENT : 30/06/2011 DATE ON JUDGMENT PRONOUNCED : 05/08/2011 4 wp 4146.11 JUDGMENT : . All these petitions involve common question of law and are based on same factual matrix, as such are decided together. 2. The petitioners are elected as councillors of Zilla Parishad, Dhule in the General Elections of 2008 having contested the said elections as belonging to Nationalist Congress Party (hereinafter called as "N.C.P." for the sake of brevity). The party position of elected councillors is as under : 1. Indian National Congress : 21 2. Nationalist Congress Party : 08 3. Shiv Sena : 14 4. Bhartiya Janta Party : 09 5. Independent : 03 Total : 55 3. After the declaration of the result, the Returning Officer called special meeting for the election of the President and Vice President of Zilla Parishad Dhule to be held on 30th December, 2008 at 3.00 p.m. In the said special meeting one Sudhir Sudhakar Jadhav representing Shiv Sena party was elected as President and Bharat Nanabhau Ise representing Bhartiya 5 wp 4146.11 Janta Party was elected as Vice President. The petitioners cast vote to these persons for the post of President and Vice President. 4. The respondent No. 1 filed petition under Rule 6 of the Maharashtra Local Authority Members' Disqualification Rules 1987 seeking disqualification of the petitioners. According to the respondent No. 1 he was elected as party leader of the Zilla Parishad. Whip was issued directing members of the N. C. P. to vote Budha Hiraman Pawar of Congress I for the post of President and Smt. Lalita Motiram Bahiran of N. C. P. for the post of Vice President. The petitioners herein defied the said whip and cast their vote to Sudhir Sudhakar Jadhav and Bharat Nanabhau Ise for the post of President and Vice President respectively. As such, sought for the disqualification of the petitioners. 5. The Collector, Dhule vide its judgment and order dated 07.06.2011 allowed the petitions filed by the respondent No. 1 and held that the present petitioners are disqualified as members of Zilla Parishad, Dhule. The petitioners have assailed the said judgment and order in the present writ petitions. 6. S/Shri V. J. Dixit, learned Senior Counsel istructed by Shri 6 wp 4146.11 P. D. Bachate, Shri R. R. Mantri, Shri V. D. Hon, Shri R. B. Raghuwanshi, learned counsel for Petitioners canvased their arguments on behalf of petitioners. Whereas, S/Shri P. M. Shah, learned Senior Counsel instructed by Shri Amol Sawant, Shri Anturkar, Shri R. N. Dhorde and Shri S. S. Deshmukh, learned counsel advanced arguments on behalf of respondent No. 1. 7. Shri V. J. Dixit, the learned senior counsel during the course of his erudite arguments strenuously canvased the following propositions : i) The rules governing the proceedings under the disqualification rules have to be strictly adhered. If the rules are not followed then the proceedings before the Collector itself stand vitiated. The said proceeding has the effect of unseating a person from an elected office held by him pursuant to his victory at polls and it also affects the constituency represented by such councillor. For the said purpose the learned senior counsel relied on the judgment of the Apex Court in a case of Sadashiv H. Patil Vs. Vithal D. Teke reported in 2001(1) Mh. L. J. 312. ii) There is variance between the pleadings and proof. The respondent No. 1 in his petition before the Collector had 7 wp 4146.11 specifically averred that he was elected as a leader of the Zilla Parishad party of N. C. P. in the meeting held on 30th December, 2008, whereas there is no record to show that the respondent No. 1 was elected as the leader of the Zilla Parishad Party on 30th December, 2008, nor there are any proceedings of 30th December, 2008 showing that he was elected as leader of the party on 30th December, 2008. The extract of the proceedings produced along with the petition is of the meeting allegedly dated 27.12.2008. As such, there is variance between pleading and proof. In such, circumstances the evidence contrary to the pleadings cannot be considered. iii) The extract of the alleged meeting dated 27.12.2008 in which it is shown that the respondent No. 1 has been elected as leader of the party and is authorized to issue the whip is suspicious. The said meeting is not proved. The original of it was not produced. There are over writings on the alleged resolutions. iv) There is no legally acceptable evidence. v) The charge which was framed did not whisper about the violation of the alleged whip dated 30th December, 2008. The charge itself was faulty. The petitioners could not have been 8 wp 4146.11 disqualified on the basis of such faulty charge. No whip was issued on 27.12.2008, even as per the case of the respondent No. 1 to vote in favour of a particular candidate. On the basis of such a charge the petitioners could not have been disqualified U/Sec. 3(1)(b) of the Maharashtra Local Authority Members' Disqualification Act (hereinafter called as the "Disqualification Act" for the sake of brevity). vi) There is no service of the whip allegedly dated 30th December, 2008 on the petitioners. Even the deposition of the respondent No. 1 shows that the whip was not served on the petitioners. In absence of the service of the whip the petitioners cannot be disqualified. vii) The respondent No. 1 in his deposition more particularly in cross examination admits that he could not personally meet the petitioners and in the meeting when he tried to read over the whip he was prevented. In such circumstances, it can be safely held that the whip was never served on the petitioners. Inter alia, the petitioners could not have been disqualified on the said count. The observations of the Collector in this regard are perverse. 9 wp 4146.11 viii) When the findings of the Collector are perverse, then this Court in its writ jurisdiction can entertain the petitions. ix) The arguments of the respondent No. 1 that the petitioners are also liable to be disqualified U/Sec. 3(1)(a) of the Disqualification Act is not countenanced by law. The Collector had passed a judgment and order, wherein in the operative portion it was held that the petitioners are disqualified U/Sec. 3(1)(a). Thereafter behind the back of the petitioners under the garb of exercising powers U/Sec. 152 of correcting judgment has reviewed and deleted the clause disqualifying the petitioners U/Sec. 3(1)(a) and instead inserted the clause disqualifying the petitioners U/Sec. 3(1)(b) of the Disqualification Act. The respondent has accepted this position and now they are estopped from claiming that the petitioners also stand disqualified U/Sec. 3(1)(a). x) For concluding that a candidate is disqualified U/Sec. 3(1) (a) no detailed inquiry is necessary. But for arriving at a conclusion or disqualifying a councillor U/Sec. 3(1)(b) a detailed inquiry is necessitated even as per the judgment of the Apex Court relied by the respondent in a case of Kedar Deshpande Vs. Bhor Municipal Council reported in (2011) 2 S.C.C. 654 10 wp 4146.11 and in a case of Dr. Mahachandra Prasad Singh Vs. Chairman Bihar Legislative Council reported in AIR 2004 SCW 6278. The enquiry in the present case, is vitiated on account of the non observance of the rules and the provisions of the Disqualification Act 8. Shri Mantri, the learned counsel adopted the arguments of the learned Senior Counsel Shri V. J. Dixit and further submitted that : i) The party contemplated under the Disqualification Act is the Zilla Parishad party and not the apex political party. As such, the directions and the person who is authorized to issue the whip should be the one authorized by the Zilla Parishad party. For the said purpose the learned counsel relies on the judgment of the Division Bench of this Court in a case of Suresh Madhavrao Bhange and others Vs. The Collector Wardha reported in 1990 Mh. L. J. 848. ii) When the findings are perverse, this Court can certainly interfere with the findings of the Collector. The judicial review to the extent of decision making process is permissible. The words "issued" U/Sec. 3(1)(b) will have to be interpreted as served. The 11 wp 4146.11 petitioners should know the contents of the whip and unless and until the contents are known they cannot be bound by the whip. The learned counsel relies on the judgment of the Division Bench of this Court in a case of Shri Tolaram Govinda Vs. State of Maharashtra reported in 2004 (3) All M. R. 167, wherein the words from the date of order were interpreted as the date of communication of the order. iii) There is no record to show that the meeting was held on 30th December, 2008. In such circumstances, it will have to be held that no business was transacted on 30th December, 2008 and as such, no whip was issued. iv) The charge framed is faulty. After the judgment was delivered the operative part was reviewed without hearing the petitioners which is illegal. For all the above reasons the learned counsel in the alternate submits the matter should be remanded back. 9. Shri Hon, the learned counsel also adopted the arguments of Shri V. J. Dixit, the learned senior counsel and further submitted that strict proof is required when disqualifying the councillor. The rules will have to be strictly applied. The learned 12 wp 4146.11 counsel relies on the judgment of the Apex Court in a case of Tarlochan Dev Sharma Vs. State of Punjab and others reported in 2001 (6) S.C.C. 260. 10. Shri P. M. Shah, the learned senior counsel for the respondent No. 1 with all his persuasive skill and eloquence submits that : a) The Disqualification Act and Rules are based on the provisions of the Xth Schedule of the Constitution. The rules are directory in nature and are meant to achieve the object of the Act. The Rules governing the procedure cannot travel wider than the object of the legislature in enacting the statute. The proceedings under the disqualification act are not in the nature of adverserial litigation. The purpose and the object of the Rules is to facilitate the authority to hold the inquiry and not to frustrate or obstruct the same by technicalities. For the said purpose the learned senior counsel relies on the judgment of the Apex Court in a case of Kedar Deshpande Vs. Bhor Municipal Council and others reported in (2011) 2 S.C.C. 654 and in a case of Dr. Mahachandra Prasad Singh Vs. Chairman Bihar Legislative Council reported in AIR 2004 S.C.W. 6278. 13 wp 4146.11 b) The facts and circumstances speaks for themselves. The petitioners did not vote to the candidate of their own party, but have cast vote in favour of rival candidate. This fact itself is sufficient to conclude that the petitioners have violated the whip. c) Soni Bharat Pavra has signed on the proceedings book of the meeting dated 27.12.2008 in which the respondent No. 1 was elected as the leader of the opposition. Said Soni Bharat Pavra has not stepped into witness box to deny her signature. As such, adverse inference deserves to be drawn. The learned counsel relies on the judgment of the Apex Court in a case of Vidyadhar Vs. Manikrao and another reported in (1999) 3 S.C.C. 573. d) Even the witness of the petitioners Dr. Hemant Deshmukh in his deposition has categorically admitted the meeting and the proceedings dated 27.12.2008 and the fact that in the said meeting the respondent No. 1 was elected as the leader of the N. C. P. and he had authority to issue the whip. e) The whip is served on the petitioners at the time of the meeting. This has been specifically stated by the respondent No. 1 in his examination in chief. There is no suggestion in the cross examination in this regard. 14 wp 4146.11 f) The notice was also sent by R.P.A.D. regarding the meeting dated 27.12.2008 in which the respondent No. 1 was elected as leader of the party. The natural course of conduct requires to be considered and appreciated. The natural course and conduct would be that the petitioners would be in touch with the party. g) Even no charge is required to be framed as it is not adversarial litigation. Only the job of the respondent No. 1 is to bring to the notice of the authority the facts and circumstances and the authority has to take decision on the basis of the same. Strict rules of pleadings are not to be subscribed. The totality of the facts and circumstances has to be taken into consideration by the authority while coming to the conclusion about the disqualification. h) There is no plea that other than Kiran Gulabrao i. e. the respondent No. 1 some other person was the leader of the party. i) Even though the authority has not disqualified the petitioners U/Sec. 3(1)(a), this Court can also look into the said facts and on the basis of the facts on record can come to the conclusion about they having incurred disqualification U/Sec. 3(1)(a) on account of voluntarily giving up the party. 15 wp 4146.11 j) The pleadings in the written statement filed by the petitioners' shows their intention that they had given up the membership of the party. Their pleadings in para 20 of the written statement as to a split in the party itself is a ground for disqualification. The petitioners, after they are elected did not attend any of the party meeting and even they were informed about their acts against the interest of the party. Further they even voted for the candidate of the rival party. These facts clearly go to show that they have voluntarily given up the party thereby attracting disqualification U/Sec. 3(1)(a) of the Disqualification Act. k) The respondent No. 1 was authorized to issue the whip and the meeting on 30th December, 2008 was called in the office of the party for the purpose of intimating about the names of the candidates to whom vote would be cast for the post of President and Vice President and the respondent No. 1 was authorized to issue directions/whip in that regard. So no question of writing any proceedings of 30th December, 2008 arises. l) The charges framed are in the nature of issues. The parties know the case, even examination in chief was led. Even in letters patent appeal the charges framed were challenged 16 wp 4146.11 which was dismissed. The Division Bench of this Court in letters patent appeal gave opportunity to the petitioners to lead additional evidence and to file additional written statement. The petitioners were given the copy of the charge, the statement of imputations of the charge which gave the complete details, as such, now the petitioner cannot make a grievance about the non observance of the procedure. 11. Shri Anturkar, the learned counsel for the respondent No. 1 contended that, a) It is also the duty of the petitioners to find out what is the whip. Considering the political scenario the legislature in its wisdom has used the word direction/whip "issued" and not "served". The word "issued" cannot be interpreted as "served". A purposive interpretation will have to be given to the word "issued". The mischief sought to be suppressed will have to be considered. A dishonest politician would try to avoid the service of the whip. If he goes in hiding, it will not be possible to serve the whip on him. As such, the legislature considering all the facets has used the words directions "issued" and not "served'. The word "issued" in Blacks Law Dictionary would mean "to send", the "order to be sent" or "to entrust for service". When 17 wp 4146.11 there are two interpretations, one which advances the remedy and supresses the mischief should be preferred. The learned counsel relies on the judgment of the Apex Court in a case of Chintamani G. Welkar Vs. State of Maharashtra and others reported in (2000) 3 S.C.C. 143. b) To incur disqualification U/Sec. 3(1)(a), there is no necessity to join any other political party. The plurality of the positive acts is sufficient to incur disqualification. In the present case, the petitioners by their acts and conducts have shown that they have voluntarily given up the membership of the party. The petitioners came with a case of splitting that would amount to defection. They did not attend any party meeting. They have also admitted that they have voted in favour of a candidate of a rival party. All these acts of commissions would show that they have voluntarily given up the party. c) The annexures are the integral part of the pleadings and the annexures filed along with the complaint referred to the meeting dated 27.12.2008 and the fact that the respondent No. 1 is chosen as leader, as such the submissions in para 8 that the respondent No. 1 was elected as leader of the party on 30.12.2008 is not vital, as all the circumstances show that the respondent 18 wp 4146.11 No. 1 was elected as leader of the party on 27.12.2008. In para 7, it was specifically stated that the District President of the Nationalist Congress Party had given intimation to the Collector, Dhule on 29.12.2008 that the respondent No. 1 has been chosen as the leader of the party. 12. Shri R. N. Dhorde, the learned counsel submits that, a) The petitioners did not give notice of the registration in the form required to be given as belonging to the party. They have not done any act showing that they belong to N. C. P. which shows that they have voluntarily given up the party. b) The petitioners did not enter into the witness box, adverse inference should be drawn against them. It is the duty of the petitioners to attend the meeting of the party. Even a public notice was given. In normal course the petitioners ought to have known the meeting to be held. The knowledge would be presumed, but still they did not participate in the meetting, nor they took permission to abstain from the meeting. On the contrary, one of the petitioners who entered into the witness box admitted that petitioners did not cast their vote to the party candidate, but cast their vote to the candidate of the rival party. 19 wp 4146.11 The questions Nos. 7, 8 and 27 which are put to Dr. Deshmukh also shows that the whip was sent and they had the knowledge. 13. Before adverting to the rival contentions, it would be appropriate to reproduce the relevant provisions. The Maharashtra Local Authority Members' Disqualification Act, 1986 1. ............ 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 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 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 authorized 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 fromt he date of such voting or abstention : 20 wp 4146.11 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 purpose 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 [councillor] 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, inclues 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. 21 wp 4146.11 14. The Apex Court while upholding and dealing with the provisions of the paragraph 2 of the Xth Schedule of the Constitution regarding the disqualification of the Members of the House in a case of Kihoto Hollohan Vs. Zachillhu and others reported in (1992) (Suppl.) 2 S.C.C. 651 has observed that the provisions are salutary and are intended to strengthen the fabric of Indian Parliamentary democracy by curbing unprincipled and unethical political defections. The anti defection law seeks to recognize the practical need to place the proprieties of political and personal conduct above certain theoretical assumptions which in reality have fallen into a morass of personal and political degradation. The Court should defer to this legislative wisdom and perception. The