1 wp1124.11 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 1124 OF 2011 1. Sahebrao S/o Narayan Kharat, age : major, Occupation : Business, R/o Maligalli, Ambad, Taluka Ambad, District : Jalna. 2. Bagwan Tamijabee Shaikh Ahmed, age : major, Occupation : Household, r/o Bagwan Mohalla, Ambad, Taluka : Ambad, District : Jalna. ..PETITIONERS -VERSUS- 1. The Collector, Jalna. Acting as Authority under the Maharashtra Local Authority Members Disqualification Act. (Copy to be served on G.P., High Court, Bench at Aurangabad). 2 Suresh S/o Ramchandra Gude, age : major, Occupation-Business, r/o Babulal Gude Nagar, Ambad, Taluka Ambad, District Jalna. 3. Kailas S/o Kadajirao Bhore, age : major, Occupation-Business, r/o Yeshwanti Colony, Ambad, Taluka Ambad, District Jalna. 4. Municipal Council, Ambad. Through Chief Officer, Municipal Council, Ambad, Taluka Ambad, District Jalna. 5. Presiding Officer/Chief Officer, Municipal Council, Ambad. RESPONDENTS ..... Mr. S.B. Deshpande & Mr. M.S. Deshmukh, Advocates for petitioners. Mr. S.V. Kurundkar, Addl. G.P. for respondent no.1. Mr. V.D. Salunke with Mr. S.S. Tope, Advocates for the respondent no.3. Mr. S.S. Patunkar, Advocate for respondent no.4. 2 wp1124.11 ..... WRIT PETITION NO. 1125 OF 2011 1. Shaikh Khurshid Ahemad Gulam Jilani, Age : 56 years, Occ : Business, R/o Ambad, Tq. Ambad, District Jalna. ..PETITIONER -VERSUS- 1. The Collector, Jalna, Dist. Jalna (Copy of respondent no.1 to be served through office of Govt. Pleader, Bombay, High Court Bench at Aurangabad). 2. Suresh S/o Ramchandra Gude, age : 37 years, Occupation-Business, r/o Babulal Gude Nagar, Ambad, Taluka Ambad, District Jalna. 3. Kailas S/o Kadajirao Bhore, age : 35 years, Occupation-Business, r/o Yeshwant Colony, Ambad, Taluka Ambad, District Jalna. 4. Municipal Council, Ambad, Taluka Ambad, District Jalna Through its Chief Officer. 5. Presiding Officer, For the election for the post of Vice President of Municipal Council, Ambad, Dist. Jalna (Deputy Collector, Land Acquisition (Building) Collector Officer, Jalna (Copy of the respondent No.5 to be served through office of Govt. Pleader, Bombay High Court Bench at Aurangabad. RESPONDENT ..... Mr.S.B. Deshpande & Mr. M.S. Deshmukh, Advocates for petitioner Mr. S.V. Kurundkar, Addl. G.P. for respondent no.1. Mr. P.R. Patil with Mr. S.S. Tope, Advocates for respondent no.3. Mr. S.S. Patunkar, Advocate for respondent no.4. ..... 3 wp1124.11 (CORAM : B.P. DHARMADHIKARI, J.) DATED : 31st March, 2011. ORAL JUDGMENT : 1. By these Petitions filed under Article 226 and 227 of the Constitution of India, the petitioners are challenging the judgment delivered by the respondent no.1-Collector in Proceedings No. 1989 on 31st January, 2011, declaring them disqualified under the provisions of Maharashtra Local Authority Members Disqualification Act, 1986 (Hereinafter referred to as "1986 Act). Writ Petition no. 1125 of 2011 is filed by another councilor challenging that order of disqualifying him. The facts are not much in dispute. The petitioners before this Court in both the matters are elected Councilors of Ambad Municipal Council, a body constituted under the provisions of Maharashtra Municipal Council, Nagar Panchayats and Industrial Townships Act, 1965 (Hereinafter referred to as "1965 Act"). The respondent nos. 2 and 3 in both Petitions are also the Councilors elected along with them. It is not in dispute that all these persons have been elected as Councilors as candidates belonging to political party namely Nationalist Congress party (N.C.P. ) in the year 2006. President of Municipal Council, Ambad was then elected for a period of two and half years. After that election and expiry of period, the election for subsequent President was held on 20th June, 2009. In that 4 wp1124.11 election, Mrs. Sulbha Kulkarni and the petitioner in Writ Petition no. 1125/2011 came to be elected as President and Vice President respectively. After that election, the respondent nos. 2 and 3 filed Petition under Section 6 of the 1986 Act alleging disobedience by all petitioners to the whip issued by the N.C.P. and contended that they voted in that election contrary to it. The petitioners appeared in those proceedings, filed their replies and after oral evidence & hearing arguments, the respondent no.1 had passed order of disqualification, which came to be questioned in Writ Petition No. 8272 of 2010. Vide Judgment dated 29.10.2010, this Court remanded matter back for passing reasoned order after considering various binding precedents in the field. After remand, the respondent no.1 heard the parties on 14.12.2010 and 22.12.2010 and the matter came to be reserved for orders. The impugned order is then passed on 31st January, 2011. There is dispute between the parties about the said date but it is not very material for narration of facts at this stage. The petitioners are again disqualified by the said order. 2. This Court issued notices on 17th February, 2011 and in that order also observed that if otherwise convenient to Court, the Court may dispose of the Petitions finally at the stage of admission. Prior to that respective Counsel were heard on 15.02.1011 and because 5 wp1124.11 of urgency pointed out, this Court permitted election to fill in vacancy in post of Vice President to go on but then directed that result thereof shall be subject to further orders of this Court. Those interim orders are then continued & operate even today. 3. I have heard Advocate Mr. S.B. Deshpande with Advocate Joshi for petitioners in Writ Petition No. 1124 of 2011, Mr. M.S. Deshmukh for petitioner in Writ Petition no. 1125 of 2011, learned A.G.P. for respondent no.1, Advocate Mr. Salunke for respondent no.3 in Writ Petition no. 1124 of 2011 and Advocate Mr. P.R. Patil for respondent no.3 in Writ Petition no. 1125 of 2011, Mr. S.S. Patunkar, Adv. has appeared for respondent no.4 Municipal Council in both the matters. In addition to oral arguments, all the Counsel have also placed on record the brief notes of arguments in writing. 4. Advocate Mr. Deshpande has contended that most important question involved in the matter was about the formation & existence of the Municipal party i.e. Ambad Municipal party and the person elected by that municipal party as its group leader (Gat Neta). He has urged that in present facts one Shri. Ankushrao Tope has claimed himself to be the District President of N.C.P. He has further alleged that he has nominated/appointed respondent no.2- 6 wp1124.11 Shri. Suresh Gude as group leader. His contention is, in accordance with provisions of Rule 3-C and the definition of phrase `Leader in relation to Municipal party' as given in Rule 2(b-1)(i) of 1987 Rules such leader needs to be elected by the members constituting municipal party. As no such meeting or then election of Shri. Suresh Gude has been proved on record, the constitution of municipal party itself has not been proved. In absence thereof there is no question of any whip being issued, its violation or then further action under the provisions of 1986 Act. He has further contended that the alleged communication of constitution of Municipal Party to the office of Collector is not sent by alleged group leader and it is claimed to have been forwarded by Shri. Ankushrao Tope. It is urged that the provisions of Rules again require elected group leader to forward that information in Form-I to the Collector. His contention is, though there are no documents in this regard, the Collector has erred in observing that material on record reveals status of Shri. Tope as District President of NCP and the communication dated 18.12.2006 forwarded by him has been accepted as valid for returning a finding of constitution of municipal party. He urges that even minutes of meeting held for election of group leader are not produced before Collector. He further contends that decision to field Smt. Jayashree Sodani for the post of President in 2009 elections was not taken by municipal 7 wp1124.11 party and it was decision of individual viz. Shri. Tope. As there is no material on record to show any such democratic process and support to Smt. Sodani, Collector erred in treating her as official N.C.P. candidate. He invites attention to records to show that on 16.06.2009, two N.C.P. candidates had filled nominations for the post of President, and therefore, it could not have been said that on 14.06.2009 when whip was attempted to be served on petitioners, Smt. Sodani was the official candidate or there was any party decision. 5. Nomination paper of petitioner no.2-Tamijabee was for the post of President and respondent no.3-Kailash Bhore was her proposer. The petitioner no.1 himself was proposer on nomination paper of Smt. Sodani on 16.06.2009 and had filled his own nomination paper for the post of Vice President. In view of material available on record according to learned Counsel the contention that the petitioners were not available in Ambad city from 14.06.2009 till 20.06.2009 is not supported. He further argues that this material also shows the absence of any official candidate during this period. 6. Coming to the service of alleged whip, learned counsel has invited attention to Rule 7 of the Rules framed by municipal party. 8 wp1124.11 He points out that service of whip is envisages as per the provisions of Section 325 of 1965 Act. He contends that this section does not permit service of it by news paper advertisement and hence, evidence of publication of that whip in daily news paper Sakal is totally irrelevant. He has then invited attention to cross examination of Shri. Gude to urge that even as per that cross examination attempt was made to serve whip on minor at residence of petitioner no.2-Tamijabee. He contends that alleged pasting after such attempt cannot be termed as valid service. Similarly, he contends that because of contradiction in evidence about service of whip or its alleged pasting at residence of petitioner no.1-Sahebrao or the petitioner-Shaikh also cannot be accepted. He invites attention to cross examination of son Sandip of petitioner-Sahebrao to urge that in view of his evidence attempted service on Sahebrao could not have been accepted. His argument is that act of pasting has not been established as respective witnesses on panchanama have not been produced and examined before the Collector. 7. He points out that the respondent no.1-Collector was on leave on 31.01.2011 and the petitioners received communication on 28.01.2011 that judgment would be pronounced on 31.01.2011. The judgment as pronounced shows that it was delivered on 9 wp1124.11 25.01.2011 itself. His contention therefore is, these facts create suspicion about the date of delivery of judgment. He has urged that though during cross examination of respondent no.2, he stated that he would produce necessary documents on record, no such documents were tendered by him at any time and reliance upon such documents by Collector in the impugned order is misconceived. He has invited attention to fact that said documents placed at page nos. 672 to 685 of Record and Proceeding do not form part of original record of Collector in as much as filing thereof is not reflected by corresponding mention in order sheet and there is no list of document or any other material to show the date on which the same were produced. He contends that filing thereof was never within the knowledge of petitioners and these documents were not tendered as evidence, hence the Collector could not have relied upon those documents at all. Attention is invited to the ground in this respect in Writ Petition with contention that there is no specific reply in this respect by the office of Collector. 8. Lastly provisions of Rule 8(3) of 1987 Rules are relied upon to urge that unless and until the result in the matter was gazetted the vacancy could not have occurred and without waiting for such gazette notification with undue haste the respondent no.1 Collector declared programme for election of Vice President. 10 wp1124.11 9. Advocate Mr. M.S. Deshmukh appearing for petitioner in Writ Petition no. 1125 of 2011 has adopted the arguments of Advocate Mr. Deshpande. He has urged that after authority of Shri. Ankushrao Tope as District President was challenged, he did not produce any documents and the Collector has recorded finding about his status by placing reliance upon such document which do not form part of record. He further states that even alleged information supplied by Shri. Tope about the constitution of Ambad Municipal party i.e. municipal party is incomplete and the Collector could not have placed reliance upon it. He has invited attention to provisions of Rule 2(b-1) (i) of 1987 Rules and of Bye-laws 1(gh) and 3(k) to urge that same requires the group leader to be elected in meeting of Councilors. According to him, there is nothing on record to show that any meeting was held on 18.01.2009 or any other date thereafter and in it, the respondent no.2-Shri. Gude was elected as group leader. Reliance upon the sole testimony of Shri. Tope according to him is therefore not proper. About service of whip, he has pointed out that witnesses examined by complainant namely Shamsundar admitted that at the house of petitioner it was not disclosed to any senior family member that whip was to be served upon petitioner. Evidence of real brother of the petitioner before the Collector is pressed into service to show that said brother was present in the house at the relevant time and deposed 11 wp1124.11 specifically that no such whip was affixed. He contends that this evidence of Shamsundar and evidence of brother of petitioner has been thus overlooked. Lastly he contends that as news paper service of whip is not envisaged in by-laws, the finding of Collector that whip can be served through any mode is unsustainable. He has invited attention to another order passed by very same Collector to urge that in relation to Partur Municipal Council such news paper service is held invalid by him. Even otherwise according to him, what is produced on record is a portion or part of daily news paper Sakal and incomplete news paper therefore, according to him, cannot be looked into by office of Collector. He also argues that when the meeting was scheduled on 20th June, 2009, there was no urgency to effect service on 14.06.2009 and alleged whip could have been served at any time prior to that date. Lastly he contends that the burden to show that alleged act of defiance has not been condoned by the municipal party, is upon the complainant before the Collector and Collector has placed that burden wrongly upon the petitioner. He therefore argues that impugned order shows total non-application of mind and same therefore deserves to be quashed and set aside. 10. Both the learned Counsel for the petitioners have relied upon the judgment of the Hon'ble Apex Court reported at "2000 (Supp.) 12 wp1124.11 Bom.C.R. 829" ( Sadashiv H. Patil V/s Vithal D. Teke & others) to urge that after the general elections, formation of municipal party at Ambad municipal level is of vital importance in this matter and it is this municipal party which then gets the statutory recognition. The provisions of Rule 3 contemplate leader of such municipal party being elected and then he is under obligation to furnish necessary information in Form-I to the office of Collector. It is urged that a copy of Rules and Regulations of municipal party are also required to be filed with Collector. Evey Councilor then is required to furnish the statement of particulars and declaration in Form-III and then such information is required to be published in Maharashtra Gazette. According to them, there is system of cross check provided in Rules and i.e. how compliance of these Rules should itself result in evidence supporting formation of municipal party. Judgment of Division Bench of this Court reported at "1990(3) Bom.C.R. 199" ( Suresh Madhaorao Bhange and others V/s Collector, Wardha and others" is also pressed into service to urge that fiction created by Explanation (a) to Section 3 of 1987 Act is for limited purpose and the members elected are deemed to be belonging to that particular political party. The fiction does not travel beyond that and does not bring into existence a municipal party not at all in existence till then. 13 wp1124.11 11. Learned A.G.P. appearing for respondent no.1-Collector has supported the impugned order. Relevant records are available with him for inspection by this Court and for use of parties. Hence, accordingly, parties had been permitted to peruse the same before their arguments. 12. He points out that Writ Petition no. 8272 of 2010 was disposed of by this Court on 29.10.2010 and the Collector was given time of one month to decide the dispute remanded to him. The said orders were received by the office of Collector on 23.11.2010 and hence, the Collector made all possible efforts to dispose of the matter within a period of one month from receipt of those orders. Attention has been invited to affidavit filed by Residence Deputy Collector Shri. Avinash Pathak to urge that the Collector had passed the judgment on 25.01.2011 itself. On 26.01.2011 there was public holiday and from 27.01.2011, the Collector had proceeded on leave because of unavoidable circumstance. As the time schedule had already expired and the Collector was required to proceed on leave, the office of Collector had communicated parties vide letter dated 28.01.2011 that Judgment in the matter would be pronounced on 31.01.2011. Learned A.G.P. states that in that letter it was inadvertently mentioned that the order was to be pronounced on 31.01.2011 14 wp1124.11 instead of communicating that copies of judgment would be supplied on 31.01.2011. He further states that letter dated 31.01.2011 is in the form of intimation to the parties and operative part of the order was communicated. According to him in this situation no prejudice is caused to any of the parties. 13. Advocate Mr. V.D. Salunke appearing for respondent no.3 in Writ Petition no. 1124 of 2011 has at the outset pointed out certain basic facts which according to him are not in dispute. He states that all three petitioners in both matters are members of N.C.P. and they were set up as candidates for elections and contested the same as such on N.C.P. symbol. They have admitted before the Collector that they have been elected as N.C.P. candidates. They also accept that they have voted in favour of the opposite candidate and against the N.C.P. candidates on 20.06.2009. Petitioner no.1 in Writ Petition no. 1124 of 2011 though the candidate of N.C.P. for the post of Vice President cast his vote to opposite candidate and admitted that in his cross examination. He relies upon that cross examination to urge that they also admitted knowledge of official candidate of N.C.P. His contention is, these facts clearly show that the petitioners have acted in violation of party mandate and looking to object behind enactment the findings in this respect as recorded by the respondent no.1 Collector should 15 wp1124.11 not be disturbed. He argues that the respondent no.1 Collector is a fact finding authority under the said provisions and in writ jurisdiction, this Court can not go behind or beyond those findings. He relied upon the judgment of Hon'ble Division Bench reported at "1999(1) Bom. C.R. 287—1999(1) Mah,L.J. 525" ( Smt. Shilpa Subhash Dhundur V/s Ratnagiri Nagar Parishad and others). 14. The objection to status of Shri. Ankushraoji Tope as District President is also alleged to be frivolous by him. He argues that all the petitioners were party candidates and District President allots candidature or symbols and they were aware of the same. This has been proved by Shri. Tope in his evidence. He has invited attention to certain documents filed along with reply before this Court to show that since establishment of N.C.P. Shri. Tope is District President of Jalna N.C.P. He points out that these documents are part of record of Collector at pages 672 to 685. In this view of the matter, again his contention is, the finding of Collector in this respect is based upon documents and same can not be ignored. He further points out that witnesses namely petitioners in Writ Petition no. 1124 of 2011 have categorically admitted status of Shri. Tope as District President. He has further pointed out that petitioner no.2 Shri. Bagwan himself happen to be Taluka President of N.C.P. for over 13 years. He invites attention to 16 wp1124.11 specific assertion in this respect as contained in paragraph no.3 in complaint filed before the Collector by respondent nos.2 and 3 and also to reply/written statement. His contention is, in written statement there is no denial of status of Shri. Tope as District President and denial is only of authority with him to appoint anybody as group leader of municipal party. 15. He has contended that provisions of 1987 Rules permit the District President to select any elected ward-member of N.C.P. as group leader. He has relied upon very same provision on which the respective learned Counsel for petitioner placed emphases for this purpose. According to him, marathi word `Nivad' used therein does not mean “election” but also permits selection and nomination. He contends that District President is authorised to choose group leader from amongst elected ward members of N.C.P. who constituted the municipal party. In this back ground attention is also invited to constitution (regulations) of municipal party to urge that those provisions also do not militate with such process of choosing group leader. He contends that District President has been given fulll discretion in this respect. He invites attention to communication dated 18.12.2006 and letter dated 22.12.2006 to show that thereby District President has intimated appointment of group leader Shri. Gude to the office of Collector. According to him, the petitioners 17 wp1124.11 have admitted in their cross examination that when earlier elections were conducted in 2006 Shri. Suresh Gude was a group leader. He points out that it is not their case that this situation has undergone any change after 2006 and till 2009. 16. Objection to existence of municipal party is taken only to defeat the provisions of 1986 Act and 1987 Rules. In the light of position already mentioned above, he contends that provisions of Section 2(1)(ii) r/w Explanation (a)(b)(i) of Section 3 of 1986 Act bring about the formation of the municipal party by deeming fiction. In view of this deeming fiction in the alternative, he contends that non communication of its formation by group leader Shri. Suresh Gude is not fatal and can not be said to be even an irregularity. Rule 3 of 1987 Rules contemplating such communication therefore should be construed as only directory. According to him as it does not prescribe any penal consequences, it can not be read as mandatory provision. Because of these arguments, Rule 3 can not override effect of provisions of Section 2(1) r/w Section 3 of 1986 Act. He places reliance upon the judgment of this Court reported at "2009(5) Bom.C.R. 753" ( Manoj Bansilal Biyani V/s Sameer Krishnadhan Kart and another) to urge that provisions of Rule 3 are already held to be only directory. 18 wp1124.11 17. It is argued that the whip has been served on seven members and three petitioners avoided it. Because of this avoidance it was attempted to be served on adult family members and when adult family members also did not cooperate, it was pasted on the door/house of the respective petitioners and proper panchanama was drawn. Despite this and only to avoid any other objection, the said whip was also published in widely circulated news paper in Marathi language i.e. daily Sakal on the date of election i.e. 20.06.2009 with names of group leader and District President. He invites attention to the Judgment of the Hon'ble Apex Court reported at "2008 A.I.R. SC 1006" (Sunil Poddar & others V/s Union Bank of India) to urge that such service therefore must be deemed to be valid. 18. Without prejudice to all this he contends that when petitioners entered the meeting hall on 20.06.2009, effort was made to serve the whip upon them personally. They read the same and have thrown it away. According