1 WRIT PETITION NO.: 9977 OF 2010 Sanjay Babukhan Tadvi Versus The State of Maharahstra and others IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CIVIL JURISDICTION WRIT PETITION NO.: 9977 OF 2010 *** Sanjay Babukhan Tadvi, Age: 38 years, Occu.: Business, R/o Jam Mohalla, Bhusawal, Taluka Bhusawal, Dist. Jalgaon. ... PETITIONER. Versus 1. The State of Maharashtra. Through the Collector, Jalgaon, District: Jalgaon. (Copy to be served on Govt. Pleader, High Court of Bombay, Bench at Aurangabad. 2. Shri Manoj Bansilal Biyani, Age: 34 years, Occu.: Business, R/o Maniya Hall, Near Bohri Kabrastan, Bhusawal, District: Jalgaon. 3. The Maharashtra State Election Commission, Madam Cama Road, Mumbai. (Copy to be served on Standing Counsel, High Court at Aurangabad). ... RESPONDENTS. *** Mr. Mukul S. Kulkarni, Advocate for the Petitioner. Mr. K. J. Ghute Patil, A.G.P. for Respondent/ State. Mr. Barde, Advocate h/f Mr. S. P. Shah, Advocate for Respondent No.3 Mr. S. T. Shelke, Advocate for Respondent No.3. *** 2 WRIT PETITION NO.: 9977 OF 2010 Sanjay Babukhan Tadvi Versus The State of Maharahstra and others CORAM: B. P. DHARMADHIKARI, J. DATED:- 7th JANUARY, 2011. ORAL JUDGMENT: 1. Looking to the nature of controversy, writ petition is heard finally with consent of parties. 2. This Court has already restrained Respondent No.3 Election Commission from proceeding further to fill in vacancy caused by removal of petitioner. 3. Shri Kulkarni, learned counsel for the Petitioner, has urged that the disqualification of petitioner under section 3 of Maharashtra Local Authorities Members Disqualification Act, 1986 is on account of his alleged abstention in the meeting of Municipal Council Bhusawal is involuntary and private complaint vide R.C.C. No.355 of 2009 has been lodged at Kalyan. According to him, as the petitioner was kidnapped he could not 3 WRIT PETITION NO.: 9977 OF 2010 Sanjay Babukhan Tadvi Versus The State of Maharahstra and others attend that meeting and hence there is no abstention. He further points out that this kidnapping or then resulting inability to participate in the meeting has not been considered by Respondent No.1 Collector at all. 4. Advocate Mr. Barde, holding for Advocate Mr. Shah for Respondent no.2 and Mr. Shelke for Respondent No.3 support the impugned order. Attention is invited to the conclusions drawn in para 3 at the end of impugned order, to show that this fact of confinement from 8th June, 2009 till 20th June, 2009 finds consideration there. Learned A.G.P. states that as all relevant facts are looked into, this Court should not interfere. 5. With the assistance of respective counsel, I have perused the impugned order passed by Respondent No.1 Collector. The only mention is in para 3 to which the respective counsel for Respondent Nos.2 and 3 have invited attention. It is stated that the 4 WRIT PETITION NO.: 9977 OF 2010 Sanjay Babukhan Tadvi Versus The State of Maharahstra and others absenting party was confined against his wishes between 8th June, 2009 to 20th June, 2009 and was not permitted to reach Bhusawal. However, no finding in this respect is recorded and as to whether that confinement was involuntary or whether was not no such confinement, has not been discussed anywhere. Not only this, if it was involuntary confinement, whether there can still be any abstention has also not been considered. The Petitioner has made grievance in writ petition specifically about this non application of mind. 6. In the circumstance, impugned order passed by Collector, Bhusawal on 23rd September, 2010 is unsustainable. Same is accordingly quashed and set aside. The application for his disqualification, as filed by Respondent No.2, is restored back to the file of Respondent No.1 for taking fresh decision in accordance with law after giving parties proper opportunity. As the matter pertains to disqualification, Respondent No.1 5 WRIT PETITION NO.: 9977 OF 2010 Sanjay Babukhan Tadvi Versus The State of Maharahstra and others Collector shall attempt to decide the same as early as possible and in any case by 3oth April, 2011. 7. Writ petition is accordingly partly allowed. However, in the circumstances of the case, there shall be no order as to costs. [B. P. DHARMADHIKARI, J.] Dated:-07/01/2011. ans/9977 6 WRIT PETITION NO.: 9977 OF 2010 Sanjay Babukhan Tadvi Versus The State of Maharahstra and others WRIT PETITION NO.: 9977 OF 2010 Date of decision: 7th JANUARY, 2011. For approval and signature THE HONOURABLE SHRI JUSTICE B. P. DHARMADHIKARI. . Whether Reporters of local papers ... Yes may be allowed to see the judgment? . To be referred to the Reporter or not? ... No . Whether Their Lordships wish to see ... No the fair copy of the judgment? . Whether this case involves a substantial... No question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder? . Whether it is to be circulated to the ... No Civil Judges? . Whether the case involves an important ... No question of law and whether a copy of the judgment should be sent to Nagpur, Goa and Bombay offices? [G. F. ANSARI] PRIVATE SECRETARY TO THE HONOURABLE JUDGE