1 wp4321-10.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4321 OF 2010 Nihal Ahmed Moulavi Mohammed Usman .. Petitioner versus State of Maharashtra & Ors .. Respondents Mr.Niranjan Shimpi for the petitioners. Mr.R.M.Patne, A.G.P for respondent No.1. Ms.Prachi Khandge i/by M.P.Vashi and Associates for respondent No.3. Mr.S.S.Patwardhan for respondent No.7. CORAM : S.C.DHARMADHIKARI, J. 3rd August 2011. P.C.: . Heard. The petitioner questions an order passed by the Divisional Commissioner, Nasik, rejecting the application being Disqualification Application No.8 of 2010. That application was filed seeking to disqualify the respondent Nos.2 to 6 to this writ petition. 2 Mr.Shimpi, learned counsel appearing for the petitioner informs me that each of the respondents are duly served and respondent No. 7 is represented by Mr.S.S.Patwardhan. The Divisional Commissioner 2 wp4321-10.doc was of the opinion that the application seeking to disqualify the petitioner under section 3 of the Maharashtra Local Authority Members’ Disqualification Act, 1986 has to meet the requirements which have been stipulated by the Maharashtra Local Authority Members’ Disqualification Rules, 1987 and particularly, Rule 6 and Rule 7 thereof. If the same does not meet the said requirements, then, there is no necessity of holding an enquiry as to whether respondent Nos.2 to 6 are disqualified or not. 3 Mr.Shimpi appearing in support of this petition submits that what the Commissioner has done is to reject the petition on technical grounds. According to the Commissioner, the petition and annexures thereto, had to be verified in the manner laid down by the Code of Civil Procedure, 1908 for verification of pleadings. According to the Commissioner, Rule 7 requires that if the petition does not comply with the requirement of Rule 6, the Commissioner shall dismiss the petition. 4 However, the submission of Mr.Shimpi is that after narrating all the facts leading to the filing of the application and also recording the 3 wp4321-10.doc arguments of both sides, what the Commissioner has done is to dismiss the application only because of want of compliance with the procedural provisions. He has not gone into merits of the controversy at all and in the light of the judgment of the Hon’ble Supreme Court in the case of Kedar Shashikant Deshpande & Ors v. Bhor Municipal Council & Ors reported in AIR 2011 Supreme Court 463, the view taken is unsustainable in law and should be set aside. 5 On the other hand, Mr.Vashi, learned counsel appearing for respondent No.3 submits that the order must be read as a whole and so read, it is clear that the Commissioner has found no substance in the application. The controversy as to whether the petitioner is leader of the party or whether the respondent No.2 can be said to be the head or leader is pending in this Court. Therefore, until and unless that controversy is determined, the application cannot proceed and such a finding is also recorded in the impugned order. For these reasons, it cannot be said to be an order dismissing the application only for want of compliance with the procedural provisions. For all these reasons, this is not a fit case for interference in writ jurisdiction. 4 wp4321-10.doc 6 I have perused the petition and all annexures thereto including the impugned order. The application filed by the petitioner seeks to disqualify respondent Nos.2 to 6 to this writ petition for having violated the whip issued and such a act falls within section 3(1)(b) of this Act. The application to disqualify the said respondents on this ground is filed and that was placed before the Commissioner. The Commissioner upon a perusal of the record and noting the arguments of both sides, has only proceeded to hold that the petition cannot be entertained for want of compliance with Rule 6 and Rule 7 of the said Rules. That is a matter of procedure, as is apparent from a reading of Rule 6 and Rule 7. If any authority is needed for this purpose, suffice it to make a reference to the decision of the Hon’ble Supreme Court in the case of Kedar Deshpande (supra), in so far as compliance with the procedural rules, this is what is held: “11. In the case of Dr.Mahachandra Prasad Singh Vs. Chairman, Bihar Legislative Council and Ors (2004) 8 SCC 747: (AIR 2005 SC 69), while interpreting the provisions of Schedule X of the Constitution, in a petition involving the issue of disqualification of a Member of Legislative Council belonging to the Indian National Congress under the Bihar Legislative Council Members (Disqualification on Ground of Defection) 5 wp4321-10.doc Rules, 1994, this Court has considered the question whether infraction of those Rules would render the entire proceedings initiated by the Chairman invalid or without jurisdiction. After examining the scheme of the Rules, this Court has held that the Rules being in the domain of the procedure are intended to facilitate the holding of inquiry and not to frustrate or obstruct the same by introduction of innumerable technicalities. It is, further, held by this Court that being subordinate legislation, the rules cannot make any provision which may have the effect of curtailing the content and scope of substantive provisions of the Act. It is also held in the said decision that the provisions of Rules 6 and 7 of the Rules of 1994 are only directory in nature and on non- filing of an affidavit as required under sub-rule (4) and Order VI, Rule 15 CPC, the disqualification petition would not be rendered invalid nor would the assumption of jurisdiction by the Chairman on its basis would be adversely affected or rendered bad in any manner. It may be mentioned that the Maharashtra Local Authority Members Disqualification Rules, 1987 are pari-materia with the Bihar Legislative Council (Disqualification on the Ground of defection) Rules, 1994 and, therefore, the principles laid down in the above quoted decision would be applicable with all force to the interpretation to be placed on the Rules of 1987. In the above-quoted decision this Court has gone to the extent of saying that there is no lis between the person moving the petition and the member of the House who is alleged to have incurred disqualification. According to this Court it is not an adversarial kind of litigation and, therefore, even if the petitioner withdraws the petition it will not make a difference as the duty is cast on the chairman or the speaker to carry out the mandate of the constitutional provisions. This Court has held that the provisions of Xth Schedule of the Constitution read with Articles 6 wp4321-10.doc 102(2) and 191(2) operate on their own and the only purpose of the petition is to bring the relevant information about disqualification to the notice of the Chairman. In the present case also section 7 lays down that the Collector has to decide the question of disqualification on a reference made to him. The reference will have to be regarded as one of the modes of bringing the relevant information to the notice of the Collector. Sections 3(1)(a) and 3(1)(b) operate on their own force and moment the conditions prescribed therein are satisfied, a corporator stands disqualified. The reference to be made to the competent authority is only for the purpose of bringing to the notice of the competent authority the relevant information about the disqualification. Section 7 of the Act does not contemplate a lis between the two private parties in a disqualification petition. It may be filed for a limited purpose of bringing relevant information to the notice of the Collector who is duty bound to decide the petition in accordance with law.” 7 Although, Mr.Vashi would like me to go into all aspects and particularly, the reasoning in relation to the pending controversy as to who is the leader of the party, it is not necessary to do so because, as rightly pointed out by Mr.Shimpi, the application is essentially dismissed for want of compliance with above procedural provisions. That is how the ultimate conclusion is recorded. A reading of the order after noting the arguments and particularly, para 12 onwards indicates 7 wp4321-10.doc that the procedural provisions have prevailed upon the Commissioner while recording his ultimate finding of dismissal of the application. That the petition cannot be so dismissed, is clear from the law laid down by the Hon’ble Supreme Court. Once the provisions are capable of being substantially complied with, then, the dismissal on that ground is not justified. It cannot be sustained in law. Resultantly, the impugned order is quashed and set aside. The application is restored to the file of the authority, viz., the Commissioner for adjudication on merits and in accordance with law. However, this Court has not expressed any opinion on the rival contentions and it is clarified that even the controversy as to who is the leader of the party is kept open for being raised and duly considered by the Commissioner. All contentions even in that behalf are kept open. The petition is allowed in these terms with no orders as to costs. Needless, therefore, to clarify that while adjudicating the matter on merits, the Commissioner should not be influenced by any of the observations made in the impugned order. (S.C.DHARMADHIKARI, J)