1 writ petition no.: 10016 of 2010 Vinayak S/o Manikrao Kale Versus Collector, Jalna and others IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CIVIL JURISDICTION WRIT PETITION NO.: 10016 OF 2010 Vinayak S/o Manikrao Kale, Age: 36 years, Occ.: Trade & Agril., R/o Partur, Tq. Partur, Dist. Jalna. ... PETITIONER VERSUS 1. Collector, Jalna, Dist. Jalna. (Copy to be served in the office of Govt. Pleader, Bombay High Court, Bench at Aurangabad). 2. Brijlal Ramvilas Holani, Age: 61 years, Occu.: Business, R/o Nava Mondha, Parturn, Tq. Partur, Dist. Jalna. 3. Ankush Bhanuji Telgad, Age: 47 years, Occu.: Agriculture, R/o Maij Road, Partur, Tq. Partur, Dist. Jalna. ... RESPONDENTS *** Mr. Mahesh S. Deshmukh, Advocate for the Petitioner. Mr. K. J. Ghute Patil, A.G.P. for the Respondent/ State Authorities. Mr. V. D. Salunke, Advocate for Respondent Nos.2 and 3. *** CORAM: B. P. DHARMADHIKARI, J. DATED: 7th JANUARY, 2011. 2 writ petition no.: 10016 of 2010 Vinayak S/o Manikrao Kale Versus Collector, Jalna and others ORAL JUDGMENT: 1. Considering the nature of controversy, matter is heard finally at admission stage, with consent of the parties. 2. Advocate Mr. Deshmukh, appearing for the Petitioner, has assailed the impugned orders, passed by the Collector (Respondent No.1), declaring Petitioner Nos.2 and 3 as not disqualified on three grounds. According to him, whip was validly served upon Respondent Nos.2 and 3. Their absence from meeting was deliberate and willful and that also has been established. The condonation of absence is by a political party operating at State level and not by a political party/ Aghadi as required by the provisions of Maharashtra Local Authority Members Disqualification Act, 1987. The whip was issued by competent authority as required by that Act and municipal party, which authorised issuance of that whip, has not condoned the absence. He has invited attention to impugned order in an 3 writ petition no.: 10016 of 2010 Vinayak S/o Manikrao Kale Versus Collector, Jalna and others attempt to show that all finding recorded in this respect are perverse. He states that even doctors were examined and their cross examination has not been properly evaluated. 3. Advocate Mr. Salunke for Respondent Nos. 2 and 3 and learned A.G.P. Mr. Patil for Respondent No.1 has supported the impugned order. They state that here service of whip is alleged to be effected by pasting it on the residence of Respondent Nos.2 and 3. That service is not proved to be after alleged refusal by the Respondent Nos.2 and 3 or any adult member of their family. They point out that Panchanama allegedly prepared at that juncture does not reveal any such statement. It is further urged that the Respondent Nos.2 and 3 were admitted in hospital for ill-health and that treatment and admission has not been denied. The respondents examined doctors who attended them and cross examination of those doctors also does not bring on record any material to the contrary. The appreciation of evidence, 4 writ petition no.: 10016 of 2010 Vinayak S/o Manikrao Kale Versus Collector, Jalna and others in this respect, is, therefore, neither perverse nor erroneous. The absence of Respondent Nos.2 and 3 was therefore not deliberate but involuntarily and hence there is no abstention from voting. 4. The facts before Court are not in dispute. Respondent No.3 though did not attend the meeting had offered his candidature for the post of Vice President. The effort is to show that both respondents were hospitalised and, therefore, could not attend the meeting. They have also come up with a defence that alleged whip was not served upon them at any point of time. 5. The Petitioner, who is leader of political party, has urged that whip was served upon Respondents by pasting it on their houses. The relevant provision, in this respect, is contained in rules framed by political party as required by the above mentioned Act of 1987 and Rules framed thereunder. Rule 7 (Ch) states that if there 5 writ petition no.: 10016 of 2010 Vinayak S/o Manikrao Kale Versus Collector, Jalna and others is avoidance to accept whip, concerned person can paste it on the front portion of the house. The word used in Marathi is "संबंधीतास". It is further obvious that person effecting service is given this option. If he finds that the person on whom whip is to be served, is refusing to accept it, he has to paste it on the front portion of the house of such person. The person effecting service, therefore, has to demonstrate that first he attempted to serve said whip upon the concerned person and he refused. Because of that refusal he proceeded further and pasted it on the front portion of the house of person refusing it. The relevant portion of cross examination to which attention has been invited, shows that, in so far as Respondent No.3 is concerned, the evidence is of pasting directly and drawing of Panchanama. After such service upon Respondent No.3, the person serving has gone to residence of Respondent No.2 and his evidence shows that some adult person whose name is not known to him, refused to accept the service. Hence, the 6 writ petition no.: 10016 of 2010 Vinayak S/o Manikrao Kale Versus Collector, Jalna and others whip was pasted on the house of Respondent No.2. It is therefore established that Respondent No.2 has never refused to accept the whip. Similarly, in his deposition, there is nothing to show that Respondent No.3 also refused to accept the whip. The question of pasting, therefore, does not arise. The provisions of Rule 7 (Ch) does contemplate a service upon adult member or avoidance by adult member. Even if it is presumed to be so, in present case, there is absolutely no evidence on record to conclusively show that any attempt was made to effect service on any adult member residing in the house with Respondent Nos.2 and 3. In this view of the matter, the absence of valid service of whip upon Respondent Nos.2 and 3 as has been found by Respondent No.1 cannot be said to be either erroneous or perverse. 6. The second question is about alleged abstention on part of Respondent No.2 and 3. They claim that they were absent for valid 7 writ petition no.: 10016 of 2010 Vinayak S/o Manikrao Kale Versus Collector, Jalna and others reasons. Whether absence by itself can constitute abstention in meeting or not is debatable issue. According to Advocate Mr. Salunke an absence for valid reason cannot be treated as voluntarily absence and a voluntary act refusing to caste vote. According to him, it is, therefore, no abstention. According to Advocate Mr. Deshmukh voluntary absence by which members kept himself away from meeting can also constitute abstention. In present fact, I do not find it necessary to decide the question. 7. The third contention is about condonation. Obviously, in present matter, political party relevant for the purpose of impugned election has not condoned absence of Respondent Nos.2 and 3. The condonation is by some superior authority in hierarchy of political parties and that superior authority is not recognised as political party for the purpose of Municipal Council, Partur. The finding about condonation by Respondent No.1 Collector, therefore, is unsustainable. 8 writ petition no.: 10016 of 2010 Vinayak S/o Manikrao Kale Versus Collector, Jalna and others 8. However, as this Court has already found that there was no whip validly served upon Respondent Nos.2 and 3, it is apparent that no exception can be taken to the finding of Respondent no.1 Collector . There is no merit in the petition. Petition is rejected. No costs. [B.P.DHARMADHIKARI, J.] Dated:-07/01/2011. ans/10016 9 writ petition no.: 10016 of 2010 Vinayak S/o Manikrao Kale Versus Collector, Jalna and others WRIT PETITION NO.: 10016 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