1 W.P.1881.10+1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1881 OF 2010 In [Disqualification petition No. 05 of 2009) Sunil Supadu Mahajan Age: 34 Years, Occup. Social Work and Municipal Councillor, From Khandesh Vikas Aghadi Jalgaon, R/o Vittal Chauk, Mehrun Jalgaon. ...PETITIONER VERSUS 1. Manoj Dayaram Choudhari Age : 40 Years, Occup. Tread and Councillor from Shivsena Political Party, R/o 101, Gandhinagar, Jilhapeth Jalgaon, Dist. Jalgaon. 2. The Jalgaon City Municipal Corporation, Jalgaon. ...RESPONDENTS. WITH WRIT PETITION NO. 9441 OF 2010 In [Disqualification petition No. 06 of 2009) Sunil Supadu Mahajan Age: 34 Years, Occup. Social Work and Municipal Councillor, From Khandesh Vikas Aghadi Jalgaon, R/o Vittal Chauk, Mehrun Jalgaon. ...PETITIONER VERSUS 2 W.P.1881.10+1 1. Manoj Dayaram Choudhari Age : 40 Years, Occup. Tread and Councillor from Shivsena Political Party, R/o 101, Gandhinagar, Jilhapeth Jalgaon, Dist. Jalgaon. 2. The Jalgaon City Municipal Corporation, Jalgaon. ...RESPONDENTS. Shri.P.M.Shah,Sr. Counsel I/b Shri.S.P.Shah,Advocate for Petitioner. Shri.V.J.Dixit, Sr. Counsel I/b Shri.S.B.Yawalkar, Advocate for Respondent No.1. Shri N.B.Suryawanshi, Advocate for Respondent No.2. CORAM: A.V.NIRGUDE, J. RESERVED ON : 13TH APRIL, 2011. PRONOUNCED ON: 27TH APRIL, 2011. JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned Counsel appearing for the parties, these Writ Petitions are being disposed of finally by this common Judgment. 2. The petitioner in both Writ Petitions, namely, Sunil Sapadu Mahajan, is admittedly Municipal councillor of Jalgaon Municipal Corporation, Jalgaon(Henceforth referred to as “the Corporation”). Respondent No.1 in both these Petitions is one Manoj Dayaram Choudhari, who is also a Municipal councillor. Both got elected in Corporation Election, which was held on 31st August, 2008. It is common ground that, respondent No.1 was official candidate of a political party by name “Shivsena” for this election and got elected as Official Candidate of Shivsena party. 3. Soon after election, respondent No.1 made declaration to the effect 3 W.P.1881.10+1 that he belongs to Shivsena Party and filled Form No.4 to that effect. He was the only candidate belonging to Shivsena Party, who was elected. Respondent No.1, then formed “Municipal Party” of Shivsena of which he was the only member. 4. In this election, several candidates of Nationalist Congress Party, a political party, got elected. They too formed a “Municipal Party” of NCP. They elected one Ganesh as their leader in the Corporation. 5. Sometime, prior to 10th September, 2009, respondent No.1 made an application to the NCP Municipal Party and requested them to allow merger of Shivsena Municipal party with that of NCP. On 10th September, 2009, NCP Municipal Party allowed this request in a meeting. Accordingly on 17th September, 2009, the respondent No.1 conveyed the above mentioned information to the Divisional Commissioner. He requested the Divisional Commissioner to record this event as per section 5 of the Maharashtra Local Authority Members Disqualification Act (Hereinafter referred to as “the Act” for short). Similar information was also sent by the leader of the NCP Municipal party to the Divisional Commissioner and requested him to took note of merger of two Municipal Parties. 6. Soon thereafter on 22nd September, 2009, the petitioner moved petition under section 3 of the Act, seeking declaration of the disqualification of respondent No.1, as Councillor of the Corporation before the Divisional Commissioner, Nashik, who after perusal of the same, issued notice to respondent No.1. 7. Respondent No.1 appeared before the Divisional Commissioner on 06th October, 2009, and requested the Commissioner to adjourn the case, because along with notice a copy of petition and documents annexed to the petition were not received by him. Accordingly, his application for adjournment was allowed. 8. In the meantime, a little prior to 6th October, 2009 election for the state legislative assembly was announced and respondent No.1 filed his 4 W.P.1881.10+1 nomination for MLA Jalgaon City Constituency, as an independent candidate(although hitherto he belonged Sivsena). The election for such post was scheduled on 13th October, 2009. 9. On 6th October, 2009, the petitioner filed his second petition under section 3 of the Act, seeking disqualification of respondent No.1 on the ground that by filing nomination as an independent candidate he had defected from his original political party. Along with this petition amongst other documents, the petitioner also annexed copy of Form No.7A of assembly election, enumerating list of candidates contesting the said election. In this list, name of respondent No.1 appeared as independent candidate, having given election symbol of “Railway Engine”. 10. On 10th November, 2009, respondent No.1 made two applications in the first petition, and he requested that since second petition is now filed, the first petition filed against him should be dismissed. In the second application, he stated that, the petitioner did not comply with the requirements of the Rule 6 of Maharashtra Local Authority Members Disqualification Rules ( Hereinafter referred to as “the Rules” for short) and so petition should be dismissed. 11. In the second petition, respondent No.1 entered his appearance on 10th November, 2011, and made similar applications mainly saying that the petitioner has not complied with provisions of Rule 6 of the Rules, and so petition should be dismissed. 12. Respondent No.1 did not file his written comments nor he could have file written statement to oppose the petitions. The learned Divisional Commissioner, then heard the submissions on the petitions’ maintainability. It seems that, hearing continued for more than one session and ultimately on 18.01.2010, a detail judgment was delivered by the learned Commissioner and dismissing both the petitions. 13. The gist of the judgment in Petition No. 05 of 2009 is that, on one hand the learned Divisional Commissioner, since beginning mentioned that 5 W.P.1881.10+1 he was deciding maintainability of the petition in the light of rules 6 and 7 of the Rules, but on the other hand he also heard submissions made by the learned Advocates appearing for the parties on merits of the case, and ultimately held that since respondent No.1’s Shivsena Municipal party got merged into NCP Municipal Party, respondent No.1 (in view of section 5 of the Act) would not incur qualification. He placed reliance on various judgments of the High Court and the Supreme Court. He mainly placed reliance on the judgment of Division Bench of this Court in the case of Umesh Shrikant Shete Vs. Collector, Ratnagiri, 2009(6) Mh.L.J. 209. He said, the law laid down in the said ruling applies to the facts of this case. He observed that this was the case of merger of Shivsena Municipal party with NCP Municipal Party, which formed a new front and so provisions of section 3 of the Act will not apply to such merger. He further held that, in view of this findings, the petitioner had failed to make out a case to continue the enquiry further and he preferred to dismiss the petition at the threshold under Sub-rule 2 of Rule 7 of the Rules. 14. In the judgment in Petition No.6 of 2009 the learned Divisional Commissioner, initially proceeded to decide maintainability of the petition, but later-on discussed the merits, as well as various case laws on the subject and recorded his finding that respondent No.1, after merging Shivsena Municipal party with NCP Municipal party, if had contested MLA election of 2009 from Jalgaon City Constituency, as independent candidate, same can at the most be said to be defection from his new political party viz. NCP Party. He said, since such action was not objected by the NCP, the petition should fail at threshold. 15. Mr. Shah, learned Senior counsel appearing for the petitioner submitted that two facts alleged against respondent No.1, namely, that he chose to merge his so called Shivsena Municipal Party with NCP Municipal party and that he contested MLA election 2009 as an independent candidate are irrefutable, and therefore, do not require further proof. He 6 W.P.1881.10+1 said, in view of the judgment of the Supreme Court in the case of Dr.Mhachandra Prasad Singh Vs. Chairman Bihar Legislative Council and others 2004(8) SCC 747. Both these petitions ( Petition Nos. 05 of 2009 and 06 of 2009)filed before Divisional Commissioner deserve to be allowed. He said, the compliance of the rules made under the Act are only directory and in the facts of this case, the learned Divisional Commissioner could not have insisted on their strict compliance. He thirdly submitted that, the proceedings before the Divisional Commissioner were not of adversarial nature and that there was no lis between the petitioner and respondent No.1 on the question as to whether respondent No.1 had incurred disqualification. 16. On the other hand, Mr. Dixit Sr. Counsel appearing for respondent No.1 submitted that learned Divisional Commissioner while examining the maintainability of the petitions could not have discussed the merits of the case. He further submitted that, the learned Divisional Commissioner should have followed the procedure laid down in the rule 7 of the Rules. He submitted that since the procedure was not properly followed, respondent No.1 did not get opportunity to submit his written comments contemplated under rule 7(4) of the Rules and also his written statement as contemplated under 7(6) of the Rules. He submitted that the allegations made against respondent No.1, mentioned above could not have been held to be proved. 17. Mr. Dixit, also made certain submissions on the merits of the case, which same are mentioned in the later part of the judgment. 18. The rival submissions give rise to following questions: (i) Whether respondent No.1 has incurred disqualification as contemplated by section 3 of the Maharashtra Local Authority Members Disqualification Act? (ii) Whether respondent No.1 is entitled to further 7 W.P.1881.10+1 hearing as per procedure laid down under the rules 6 and 7 of the Maharashtra Local Authority Members Disqualification Rules and for that purpose whether cases should be remanded back to the learned Divisional Commissioner? 19. The Act was made by State Legislature, pursuant to the Fifty Second Constitutional (Amendment) 1985, by which Tenth Schedule was added to the Constitution with effect from 01st March, 1985. The provisions of Tenth Scheduled of the Constitution are almost paramateria to the provisions of the Act. The relevant provisions of the Act are are as under: “2. Definitions-In this Act, unless the context otherwise requires,- (a) "aghadi" or" front" means a group of persons who have formed themselves into party for the purpose of setting up candidates, for election to a local authority . (c) "Commissioner" means the Commissioner of a revenue, division appointed under section 6 of the Maharashtra Land Revenue Code, 1966 ; (d) "Councillor'" means a Councillor of a Municipal Corporation, or a Municipal Council, or a Zilla Parishad ; (i) "municipal party", in relation to the Councillor belonging to any political party or aghadi or front in accordance with the Explanation to section 3,means- (i) in the case of a councillor of a Municipal Corporation, the group consisting of all the councillors of the Municipal Corporation for the time being belonging to that political party or aghadi or front in accordance with the said Explanation. (ii) in the case of a councillor of a Municipal Council, the group consisting of all the councillors of the Municipal Council for the time being belonging to that political party or aghadi or front in accordance with the said Explanation. (j) "original political party " in relation to a councillor or a member, means the political party to which he belongs for 8 W.P.1881.10+1 the purposes of sub-section (1) of section 3 ; “3. Disqualification on ground of defection-(1) Subject to the provisions of l[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 the 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 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 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 2 [concillor] shall- (i) where he is a member of any political party or aghadi or front on the date of his nomination 3 * * * * 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 9 W.P.1881.10+1 nominated 2* * * *; © 3 [ X X X ] (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) 4 * * * * (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, member (whether elected' or, nominated2 * * * * 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 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) 6 * * * *. 5. Disqualification on ground of defection not to apply in case of merger-(1) A councillor or a member shall not be disqualified under sub-section (1) of section 3 where his original political party or aghadi or front merges with another political party or aghadi or front and he claims that he and any other members of his original political party or aghadi or front- (a) have become members of such other political party, or aghadi or front or as the case may be, of a new political party formed by such merger; or (b) have not accepted the merger and opted to function as a separate group, and-from the time of such merger, such other political party or new political party or 10 W.P.1881.10+1 aghadi or front or group, as the case may be, shall be deemed to the political party or aghadi or front to which he belongs for the purpose of sub-section (1) of section 3 and to be original political party or aghadi or front for the purpose of this sub-section. (2) For the purposes of sub-section (1), the merger of the original political party or aghadi or front of a councillor, or as the case may be, a member shall be deemed to have taken place if, and only if, not less than two-thirds of the members of municipal party, Zilla Parishad party, or as the case may be, Panchayat Samiti party, concerned, have agreed to such merger.” 20. On plain reading of these provisions, one finds that, a person who wishes to get elected as councillor of a Municipal Corporation may belong to a political party, prior to the election, he may not even belong to any political party and is also entitled to file his nomination, as an independent, for contesting election to the post of councillor. Thus, a person who gets elected as councillor either belongs to original political party or could be an independent. Once, official candidate/s of an original political party get/s elected as councillor/s, he or they form a Municipal party of to that specific political party to which they belong prior to their election. Once these concepts is understood, one would find that a councillor belonging to any political party would incur disqualification for being a councillor, if (a) he has voluntarily given up his membership of such political party, or (b) if he votes of or abstains from voting in any meeting of the Corporation, contrary to the directions issued by political party to which he belongs without obtaining prior permission of his political party within 15 days from date of such voting or abstinent. The exception to this rule is provided in Section 5, which says that a councillor may not incur disqualification, if and only if his original political party merges with another political party and he claims that he and other members of his original party have become members of such other political party or of new political party formed by such merger. Section 5 further 11 W.P.1881.10+1 provides that, in case of merger, a councillor would have option of not becoming member of other political party or new political party formed after merger. He could continue as a counciallor in separate group and would remain a councillor belonging to his original political party. 21. As per section 9 of the Act, the State Government has made Rules, which are named as Maharashtra Local Authority Members Disqualification Rules 1987. These Rules inter-alia provided procedure as to how a petition could be filed before a Competent Authority for deciding as to whether a Councillor has incurred disqualification. Rules 6 and 7 are relevant rules in this regard and are quoted below. “ 6. References to be by petitions: (1) No reference of any question as to whether a councillor in relation to a Municipal party, zilla parishad party, or member in relation to a panchayat Samitti party has become subject to disqualification under the Act shall be made except by a petition in writing to the commissioner in the case of a councillor of a Municipal Corporation and the Collector in the case of any other councillor or member, by any other councillor or, as the case may be, member, in relation to such councillor or , as the case may be member. (2) Before making any petition in respect of a councillor in relation to a municipal party and a Zilla Parishad party or a member in relation to the Panchayat Samitti party 2[the petitioner shall satisfy himself] that there are reasonable grounds for believing that a question has arisen as to whether such councillor or, as the case may be, member has become subject to disqualification under the Act. (3) Every Petition- (a) Shall contain a concise statement of the 12 W.P.1881.10+1 material facts on which the petitioner relies; and (b) shall be accompanied by copies of the documentary evidence, if any, on which the petitioner relies and where the petitioner relies on any information furnished to him by any persona statement containing the names and address of such person and the gist of such information as furnished by each such person. (4) Every Petition and any annexure thereto shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (V of 1908) for the verification of pleadings.” “7. Procedure :- (1) On receipt of a petition under rule 6, the commissioner, or, as the case may be, collector shall consider whether the petition complies with the requirements laid down in that rule (2) If the petition does not comply with the requirements of rule 6, the Commissioner, or, as the case may be, Collector shall dismiss the petition and intimate the petitioner accordingly. (3) If the petition complies with the requirements of rule 6, the Commissioner, or as the case may be, Collector shall forward copies of the petitioner and of the annexures thereto- (a) to the councillor in relation to a municipal party and a Zilla Parishad party and member in relation to a Panchayat Samiti party in respect of whom the petition has been made, and (b) Where such councillor in relation to a municipal 13 W.P.1881.10+1 party and a Zilla Parishad party and member in relation to a Panchayat Samiti party belongs to any political party or aghadi or front and such petition has not been made by the leader thereof also to such leader; and such councillor, member or leader shall, within seven days of the receipt of such copies, or within such further period as the Commissioner, or as the case may be, Collector may for sufficient reason allow, forward his comments in writing thereon to the Commissioner or as the case may be, Collector. (4) After considering the comments, if any,in relation to the petition received under sub-rule(3) within the period allowed (including the extended period),the Commissioner, or, as the case may be, Collector shall proceed to determine the question after making a preliminary enquiry. (5) The procedure which shall be followed by the Commissioner or, as the case may be, Collector for the purpose of making a preliminary enquiry to determine any question under sub-rule (4) shall be as prescribed in sub-rules(6) to (15) (6) The Commissioner or as the case may be, Collector shall draw up or cause to be drawn up- (i) the substance of the imputations of disqualification into definite and distinct articles of charge; (ii) a statement of the imputations of disqualification in support of each article of charge, which shall contain- (a) a statement of all relevant facts including any admission or confession made by the Councillor or the Member, and (b) a list of documents by which, and a list of 14 W.P.1881.10+1 witnesses by whom, the articles of charge are proposed to be sustained. (7) The Commissioner or, as the case may be, Collector shall deliver or cause to be delivered to the Councillor, or as the case may be, the Member, a copy of articles of charge, the statement of the imputation of disqualification and a list of documents and of the witnesses by which each article of charge is proposed to be sustained, and shall by a written notice, require the councillor or, as the case may be, the Member to submit to him within such time as may be specified in the notice, a written statement of his defence and to state whether he desires to be heard in person. (8) On receipt of the written statement of defence, the Commissioner or, as the case may be, the Collector, may himself inquire into such of the articles of charge as are not admitted, and where all the articles of charge have been admitted by the Councillor or Member in his written statement of defence, the Commissioner or, as the case may be, the Collector, shall record his findings on each charge after taking such evidence as he may think fit and shall act in the manner laid down in rule 8 of these rules. (9) If no written