1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 8936 OF 2010 Sow Shantabai w/o Dattu Surwade age 43 years, occ. household and councilor of Bhusawal Nagar Palika, Bhusawal r/o R.B.1, 717 E Near R.P.F. Barac, Bhusawal Tq. Bhusawal, Dist. Jalgaon. .. PETITIONER VERSUS 1 The State of Maharashtra Through Secretary Urban Development Department Mantralaya Maharashtra State Mumbai. 2 The Collector Jalgaon Dist. Jalgaon. 3 Manoj s/o Bansilal Biyani age 40 years, occ. business r/o Mamta Palace, Professor colony, Bhusawal Tq. Bhusawal, Dist. Jalgaon. 4 The Chief Officer Ngar Parishad Bhusawal Tq. Bhusawal, Dist. Jalgaon. .. RESPONDENTS Mr. N.L. Jadhav, advocate for the petitioner. Mr. N.B. Khandare, GP for the State. Mr. P.M. Shah, Senior Counsel instructed by Mr. S.P. Shah, advocate for respondent no. 3. Mr. Girish Wani, advocate for respondent no. 4. 2 WITH WRIT PETITION NO. 8988 OF 2010 Sow. Chetana w/o Sanjay Phalak age 30 years, occ. household and councilor of Bhusawal Nagar Palika Bhusawal, r/o Vithal Mandir Ward Bhusawal, Tq. Bhusawal Dist. Jalgaon. .. PETITIONER VERSUS 1 The State of Maharashtra Through Secretary Urban Development Department Mantralaya Maharashtra State Mumbai. 2 The Collector Jalgaon Dist. Jalgaon. 3 Manoj s/o Bansilal Biyani age 40 years, occ. business r/o Mamta Palace, Professor colony, Bhusawal Tq. Bhusawal, Dist. Jalgaon. 4 The Chief Officer Ngar Parishad Bhusawal Tq. Bhusawal, Dist. Jalgaon. .. RESPONDENTS Mr. N.L. Jadhav, advocate for the petitioner. Mr. N.B. Khandare, GP for the State. Mr. P.M. Shah, Senior Counsel instructed by Mr. S.P. Shah, advocate for respondent no. 3. Mr. Girish Wani, advocate for respondent no. 4. 3 WITH WRIT PETITION NO. 8937 OF 2010 Sow Neelima w/o Ganesh Patil age 40 years, occ. household and councilor of Bhusawal Nagar Palika Bhusawal, r/o Near Prabhakar Hall Bhusawal, Tq. Bhusawal Dist. Jalgaon. .. PETITIONER VERSUS 1 The State of Maharashtra Through Secretary Urban Development Department Mantralaya Maharashtra State Mumbai. 2 The Collector Jalgaon Dist. Jalgaon. 3 Manoj s/o Bansilal Biyani age 40 years, occ. business r/o Mamta Palace, Professor colony, Bhusawal Tq. Bhusawal, Dist. Jalgaon. 4 The Chief Officer Ngar Parishad Bhusawal Tq. Bhusawal, Dist. Jalgaon. .. RESPONDENTS Mr. N.L. Jadhav, advocate for the petitioner. Mr. N.B. Khandare, GP for the State. Mr. P.M. Shah, Senior Counsel instructed by Mr. S.P. Shah, advocate for respondent no. 3. Mr. Girish Wani, advocate for respondent no. 4. 4 WITH WRIT PETITION NO. 8985 OF 2010 Ulhas s/o Narendra Patil age 28 years, occ. agril and councilor of Bhusawal Nagar Palika Bhusawal, r/o Zuna Satara, Near Ram mandir, Bhusawal, TQ. Bhusawal Dist. Jalgaon. .. PETITIONER VERSUS 1 The State of Maharashtra Through Secretary Urban Development Department Mantralaya Maharashtra State Mumbai. 2 The Collector Jalgaon Dist. Jalgaon. 3 Manoj s/o Bansilal Biyani age 40 years, occ. business r/o Mamta Palace, Professor colony, Bhusawal Tq. Bhusawal, Dist. Jalgaon. 4 The Chief Officer Ngar Parishad Bhusawal Tq. Bhusawal, Dist. Jalgaon. .. RESPONDENTS Mr. N.L. Jadhav, advocate for the petitioner. Mr. N.B. Khandare, GP for the State. Mr. P.M. Shah, Senior Counsel instructed by Mr. S.P. Shah, advocate for respondent no. 3. Mr. Girish Wani, advocate for respondent no. 4. 5 WITH WRIT PETITION NO. 9350 OF 2010 Khan Salim Taslim age 49 years, occ. business r/o Jam Mohalla, Bhusawal Tq. Bhusawal, Dist. Jalgaon. .. PETITIONER VERSUS 1 The State of Maharashtra Through the Collector Jalgaon District Jalgaon 2 Shri Manoj Bansilal Biyani age 34 years, occ. business r/o Maniya Hall, Near Bohri Kabrastan, Bhusawal Dist. Jalgaon. 3 The Bhusawal Municipal Council Through its Chief Officer Bhusawal, Dist. Jalgaon. 4 The Maharashtra State Election Commission Madam Cama road, Mumbai. .. RESPONDENTS Mr. Mukul Kulkarni, advocate for the petitioner. Mr. N.B. Khandare, GP for the State. Mr. P.M. Shah, Senior Counsel instructed by Mr. S.P. Shah, advocate for respondent no. 2. Mr. G.V. Wani, advocate for respondent no. 3. Mr. S.T. Shelke, advocate for respondent no. 4. 6 WITH WRIT PETITION NO. 9003 OF 2010 Hareshkumar s/o Uddhavdas Nagdev aged 55 years, occ. busines and social work r/o Sindhi colony, Bhusawal Tq. Bhusawal, Dist. Jalgaon. .. PETITIONER VERSUS 1 The State of Maharashtra Through its Principal Secretary Urban Development Department Maharashtra State, Mantralaya Mumbai – 32. 2 The State Election Commission Madam Cama Road, Mumbai Through its Secretary 3 The Collector, Jalgaon Dist. Jalgaon 4 The Municipal Council, Bhusawal Tq. Bhusawal, Dist. Jalgaon Through its Chief Officer. 5 Manoj s/o Bansilal Biyani age 40 years, occ. business r/o Mamta Palace, Professor Colony Bhusawal, TQ Bhusawal Dist. Jalgaon. .. RESPONDENTS Mr. R.N. Dhorde, advocate holding for Mr. P.S. Dighe, advocate for petitioner Mr. N.B. Khandare, GP for the State. Mr. S.T. Shelke, advocate for respondent no. 2. Mr. Girish Wani, advocate for respondent no. 4. Mr. P.M. Shah, Senior Counsel instructed by Mr. S.P. Shah, advocate for respondent no. 5. 7 WITH WRIT PETITION NO. 8998 OF 2010 Qureshi Shaikh Ahmed Ibrahim aged 32 years, occ. business and social worker r/o Agabhanwada, Shivajinagar Bhusawal, Tq. Bhusawal Dist. Jalgaon. .. PETITIONER VERSUS 1 The State of Maharashtra Through its Principal Secretary Urban Development Department Maharashtra State, Mantralaya Mumbai – 32. 2 The State Election Commission Madam Cama Road, Mumbai Through its Secretary 3 The Collector, Jalgaon Dist. Jalgaon 4 The Municipal Council, Bhusawal Tq. Bhusawal, Dist. Jalgaon Through its Chief Officer. 5 Manoj s/o Bansilal Biyani age 40 years, occ. business r/o Mamta Palace, Professor Colony Bhusawal, TQ Bhusawal, Dist. Jalgaon. .. RESPONDENTS Mr. R.N. Dhorde, advocate holding for Mr. P.S. Dighe, advocate for petitioner Mr. N.B. Khandare, GP for the State. Mr. S.T. Shelke, advocate for respondent no. 2. Mr. Girish Wani, advocate for respondent no. 4. Mr. P.M. Shah, Senior Counsel instructed by Mr. S.P. Shah, advocate for respondent no. 5. 8 WITH WRIT PETITION NO. 9013 OF 2010 Ashique Khan Sherkhan aged 33 years, occ. business & social worker r/o Ansrolanagar, Ghadka Road Bhusawal, TQ. Bhusawal, Dist. Jalgaon. .. PETITIONER VERSUS 1 The State of Maharashtra Through its Principal Secretary Urban Development Department Maharashtra State, Mantralaya Mumbai – 32. 2 The State Election Commission Madam Cama Road, Mumbai Through its Secretary 3 The Collector, Jalgaon Dist. Jalgaon 4 The Municipal Council, Bhusawal Tq. Bhusawal, Dist. Jalgaon Through its Chief Officer. 5 Manoj s/o Bansilal Biyani age 40 years, occ. business r/o Mamta Palace, Professor Colony Bhusawal, TQ Bhusawal Dist. Jalgaon. .. RESPONDENTS Mr. R.N. Dhorde, advocate holding for Mr. P.S. Dighe, advocate for petitioner Mr. N.B. Khandare, GP for the State. Mr. S.T. Shelke, advocate for respondent no. 2. Mr. Girish Wani, advocate for respondent no. 4. Mr. P.M. Shah, Senior Counsel instructed by Mr. S.P. Shah, advocate for respondent no. 5. 9 WITH WRIT PETITION NO. 9006 OF 2010 Mahesh s/o Digambar Chopade aged 42 years, occ. business & social work r/o Tapinagar, Bhusawal Tq. Bhusawal, Dist. Jalgaon. .. PETITIONER VERSUS 1 The State of Maharashtra Through its Principal Secretary Urban Development Department Maharashtra State, Mantralaya Mumbai – 32. 2 The State Election Commission Madam Cama Road, Mumbai Through its Secretary 3 The Collector, Jalgaon Dist. Jalgaon 4 The Municipal Council, Bhusawal Tq. Bhusawal, Dist. Jalgaon Through its Chief Officer. 5 Manoj s/o Bansilal Biyani age 40 years, occ. business r/o Mamta Palace, Professor Colony Bhusawal, TQ Bhusawal Dist. Jalgaon. .. RESPONDENTS Mr. R.N. Dhorde, advocate holding for Mr. P.S. Dighe, advocate for petitioner Mr. N.B. Khandare, GP for the State. Mr. S.T. Shelke, advocate for respondent no. 2. Mr. Girish Wani, advocate for respondent no. 4. Mr. P.M. Shah, Senior Counsel instructed by Mr. S.P. Shah, advocate for respondent no. 5. 10 WITH WRIT PETITION NO. 9007 OF 2010 Suresh s/o Shravan Devkar aged 36 years, occ. business & social work r/o Gangaram Plot, Bhusawal, Tq. Bhusawal Dist. Jalgaon. .. PETITIONER VERSUS 1 The State of Maharashtra Through its Principal Secretary Urban Development Department Maharashtra State, Mantralaya Mumbai – 32. 2 The State Election Commission Madam Cama Road, Mumbai Through its Secretary 3 The Collector, Jalgaon Dist. Jalgaon 4 The Municipal Council, Bhusawal Tq. Bhusawal, Dist. Jalgaon Through its Chief Officer. 5 Manoj s/o Bansilal Biyani age 40 years, occ. business r/o Mamta Palace, Professor Colony Bhusawal, TQ Bhusawal Dist. Jalgaon. .. RESPONDENTS Mr. R.N. Dhorde, advocate holding for Mr. P.S. Dighe, advocate for petitioner Mr. N.B. Khandare, GP for the State. Mr. S.T. Shelke, advocate for respondent no. 2. Mr. Girish Wani, advocate for respondent no. 4. Mr. P.M. Shah, Senior Counsel instructed by Mr. S.P. Shah, advocate for respondent no. 5. 11 CORAM : R. M. BORDE, J. RESERVED ON : 14 th OCTOBER, 2010. PRONOUNCED ON : 29 th OCTOBER, 2010. ORAL JUDGMENT : 1 In all these petitions the petitioners who are the elected Councilors of the Municipal Council Bhusawal are raising exception to the order passed by the Collector, Jalgaon holding them disqualified to continue as the Councilors of the Municipal Council, Bhusawal. The orders are passed by the Collector on consideration of petitions tendered by one Mr. Manoj Biyani / respondent herein under the provisions of section 3 of the Maharashtra Local Authority Members’ Disqualification Act of 1986 ( hereinafter referred to as ‘Act of 1986’ ) r/w Rule 6 of the Maharashtra Local Authority Members’ Disqualification Rules, 1987 (hereinafter referred to as “Rules of 1987”). 2 Petitioners contend that in the general elections to the Municipal Council held in the month of October – November 2006, the petitioners were declared elected on 21-11-2006 as independent candidates. The Election Commissioner published election results in official gazette declaring the 12 petitioners to have been elected as the Councilors. It is specific contention of the petitioners that they are elected as independent candidate and the certificates issued by the Election Commission also declare that they have been elected to the Municipal Council as the independent candidates. There was a proposal for registration of Shahar Bhachav Aghadi as municipal party in pursuance to the application presented by one Manoj Biyani / respondent herein. However, according to the petitioners, said proposal was withdrawn by him on 22-11-2006. It is denied by the petitioners that there was a pre-poll aghadi or that they are the members of any such Aghadi titled as “Shahar Bhachav Aghadi”. It is contended that said Aghadi has not been registered as a municipal party required under the provisions of the Act. After the general elections to the Bhusawal Municipal Council the elections to the President were held and one Madhuri Falak was elected as the President who continued to occupy the post for about 2 1/2 years. Her term came to an end in the month of August 2009 and the process for election of the successor President for remaining term of 2 1/2 years was initiated. It is contended that one Manoj Biyani claims himself to be the President of “Shahar Bachav Aghadi” which has membership of about 28 members, according to him, and he directed the members to vote in favour of his wife who was also a candidate at the elections of President. It is 13 contended that in the meeting convened on 28-6-2009 the votes were recorded and during the process Smt. Sangita w/o Manoj Biyani secured 15 votes whereas her rival candidate belonging to Nationalist Congress Party Smt. Rekha Choudhari secured 30 votes and as such she was ( Mrs. Rekha Choudhari) declared as elected. It is the contention of the petitioners that Mr. Manoj Biyani / respondent herein claiming himself to be the President of “Shahar Bachav Aghadi” and group leader of the municipal party, presented different applications to the Collector praying therein to hold the petitioners herein disqualified to continue as the Councillors of the Municipal Council. The petitioners in these petitions have seriously disputed formation of “Shahar Bachav Aghadi” which is a pre-poll Aghadi or formation of the municipal party for Bhusawal Municipal Council. It is also seriously disputed that respondent herein / Manoj Biyani to be the President / Group Leader of the municipal party and his entitlement to issue whip requiring the petitioners to cast vote in a particular manner. The petitioners have also denied to have received any communication in respect of issuance of whip nor the petitioners have been communicated in respect of setting of the candidature of Smt. Sangita Biyani for the post of the President. The petitioners contend that as they were not members of ‘Shahar Bachav Aghadi’, they cannot be held disqualified on account of disobeying whip 14 allegedly issued by respondent Mr. Manoj Biyani nor the petitions claiming action against them at the instance of respondent herein is entertainable with the Collector. In addition to the aforesaid contentions the petitioners in Writ Petition no. 9003/2010, 9007/2010 and 8998/2010 have also raised grievance in respect of non-observance of principles of natural justice while deciding the matter by the Collector. It is the contention of the concerned petitioners that the Collector has not extended an opportunity of hearing to them and without hearing the oral arguments proceeded to decide the matter. Thus, according to them, order passed by the Collector is liable to be set aside on the ground of non-observance of the principles of natural justice. The petitioner in Writ Petition Nos. 9350/2010 has contended that hwe was not member of any pre-poll Aghadi and he contested the election as an independent candidate. He was never the member of Aghadi and as such proceedings in respect of his disqualification cannot be initiated at the instance of Mr. Manoj Biyani / respondent herein. It is also contended by petitioner in Writ Petition no. 9006/2010 that he was absent in the meeting and that no procedure is followed in respect of condonation of absentism as required under the Rules and as such the concerned Councillor cannot be meted with penalty of disqualification. 15 3 Contentions raised by the petitioners in the petitions have been disputed by respondent Manoj Biyani / applicant before the Collector. In the application presented before the Collector, it is contended by Mr. Manoj Biyani that Shahar Bachav Aghadi, Bhusawal is formed on 5-10-2006 i.e. prior to holding of elections of Municipal council Bhusawal. It is contended that the petitioners are the candidates set up by the Aghadi for contesting the elections and necessary Forms AB were issued in favour of the concerned candidates and the concerned candidates presented nomination papers as a member of Shahar Bachav Aghadi. It is contended that at the elections to the Municipal Council, 28 Councillors of Shahar Bachav Aghadi got elected whereas only 19 Councillors belonging to Nationalist Congress Party were elected. It is also contended that on 21-11-2006 a meeting of the elected Councillors was held for the purpose of formation of the municipal party and one independent candidate i.e. Khan Salim Taslim also joined the Aghadi. Mr. Manoj Biyani being the President of the Aghadi submitted Form I prescribed under Rule 3(1)(a) of the Rules of 1987 with the Collector on 21-11-2006. The concerned elected representatives also submitted declaration in Form III prescribed under Rule 4(1) of the Rules of 1987 with the District Collector. The Collector was thereafter pleased to register the information in Form IV prescribed under Rule 5(1) of the Rules of 1987. It is 16 contended that in the year 2006 elections to the President were held and the candidate belonging to the Aghadi Smt. Madhuri Falak got elected and at relevant time whip was issued by Mr. Manoj Biyani which was honoured by the members and candidates belonging to the Aghadi were declared elected as President and Vice-President of the Municipal Council. After completion of the term of 2 1/2 years the candidature of Smt. Sangita Biyani was delcared for the post of the President and the whip was duly issued in that regard to the petitioners from time to time. The whip was not only sent to the concerned Councillors by registered post AD and also under the certificate of posting but the same was also published in newspaper on 18-5-2009, 22-5-2009, 15-6-2009 and 20-6-2009. Inspite of issuance of the whip and having knowledge of the same, all the petitioners before this court dishonoured the directions and cast vote in favour of a candidate belonging to Nationalist Congress Party and as such have incurred disqualification within contemplation of provisions of section 3(1)(b) of the Disqualification Act of 1986. It is specifically contended that the illegal act of disobedience of the whip has not been condoned by applicant Mr. Biyani. Necessary documents supporting the contentions raised in the petition were presented before the Collector. The Collector after recording evidence of the parties came to the conclusion that the applicant has substantiated his case and 17 all the petitioners herein have incurred disqualification and are liable to be declared as disqualified to hold the elected office of Councillors of Municipal Council and the Collector was pleased to issue order accordingly. So far as the candidate who has abstained from voting i.e. petitioner in Writ Petition no. 9006/2010 is concerned, his absentism has not been condoned by the party and as such he is also held liable to be held disqualified. The candidate who joined the Aghadi after the elections i.e. petitioner in Writ Petition no. 9350/2010 has also incurred disqualification as he was also bound to follow the whip / directives of the Aghadi. 4 I have heard arguments advanced by Mr. N.L. Jadhav appearing for petitioners in Writ Petition nos. 8936/2010, 8988/2010, 8937/2010 and 8985/2010, Mr. R.N. Dhorde, learned counsel for petitioners in Writ Petition nos. 9003/2010, 8998/2010, 9013/2010, 9006/2010 and 9007/2010, Mr. Kulkarni, learned counsel for petitioner in Writ Petition no. 9350/2010. I have also heard arguments advanced by Mr. P.M. Shah, learned Senior Counsel appearing for the respondent Manoj Biyani. It is a common ground in all the petitions by the petitioners that there was no pre-poll Aghadi and that Mr. Biyani was not the group leader or President of the Aghadi and was not entitled to issue whip. The another contention raised is that all the petitioners 18 are elected as independent candidates and cannot be considered as members of Aghadi and as such directives issued by the President of the so called Aghadi are not binding on them. Another objection raised is in respect of registration of the Aghadi within contemplation of provisions of the Act or formation of the Municipal party in relation to the Councillors belonging to the Aghadi. It is also a common ground that the proposal tendered for registration of Aghadi was withdrawn by the President on the next date i.e. on 22-11-2006 and as such registration of Aghadi, if any, is also erroneous. The petitioners have also claimed ignorance in respect of tendering of information by them with the Collector in the prescribed form and according to them, their signature were obtained on blank paper and those have been mis-utilised by the respondent / Mr. Biyani. In three petitions, grievance is made in respect of non-observance of principles of natural justice and it is contended that the order passed by the Collector is liable to be quashed and set aside. 5 In order to understand the controversy involved in the petition, it is necessary to refer to certain provisions of the Act those are : 2(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; 19 2(i) “Municipal Council” means Municipal Council constituted under the Maharashtra Municipalities Act 1965; (i) “in the case of a Councillor of a Municipal Corporation, the group consisting of all 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 Councillors 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. 2(j) “original political party”, in relation to a Councillor or a member, means the political party to which he belongs for the purposes of sub-section (1) of section 3; 3 Disqualification on ground of defection : 1. Subject to the provisions of [section 5], a councillor or a member belong 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 h 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 authorised 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; 20 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 a 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) [ * * * ] 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. [ * * * ] 21 4. Notwithstanding anything contained in the foregoing provisions of this section a person who on the commencement of this Act, is a couincillor, or as the case may be, a member (whether elected or nominated [* * * ] as such Councillor or member ) shall - a) where he has 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), Rule 3 : Information to be furnished by a leader of Party : 1 The leader of each municipal party or a Zilla Parishad party in relation to a councillor and the leader of Panchayat Samiti party in relation to a member (other than a municipal party or a Zilla Parishad party or a Panchayat Samiti party consisting of only one member ) shall, within thirty days fromo the date