lpa245.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD LETTERS PATENT APPEAL NO.245 OF 2011 IN WRIT PETITION NO.2905 OF 2011 1) Sheshrao Trimbakrao Patil, Age-50 years, Occu:Agril, R/o-Chincholi Tapse, Tq-Ausa, Dist-Latur, 2) Ramdas Jaisingrao Chavan, Age-55 years, Occu:Agril, R/o-Deotala, Tq-Ausa, Dist-Latur, 3) Jalilmiya Gafurmiya Deshmukh, Age-57 years, Occu:Agril, R/o-Sindkhed, Tq-Nilanga, Dist-Latur, 4) Vinayak s/o Shankarrao Waghmare, Age-30 years, Occu:Agril, R/o-Borol, Tq-Deoni, Dist-Latur, 5) Rishikesh Vithoba Badde, Age-50 years, Occu:Agril, R/o-Ujed, Tq-Shirur-Anantpal, Dist-Latur, 6) Channapa Baswanappa Holkunde, Age-54 years, Occu:Agril, R/o-Kasarshirshi, Tq-Nilanga, Dist-Latur, lpa245.11 2 7) Ram Nandevrao Gaikwad, Age-50 years, Occu:Agril, R/o-Dharangaon, Tq-Shirur-Anantpal, Dist-Latur, 8) Nagesh Dnyanoba Tabakle, Age-45 years, Occu:Agril, R/o-Dongargaon, Tq-Shirur-Anantpal, Dist-Latur, 9) Sau. Bharatbai Shivajirao Anchule, Age-60 years, Occu:Agril & Household, R/o-Sawari, Tq-Nilanga, Dist-Latur, 10) Sau. Kushawarta Chandrashekhar Belle, Age-49 years, Occu:Agril & Household, R/o-Deoni, Tq-Deoni, Dist-Latur. ...APPELLANTS. (Original Petitioners) VERSUS 1) Trimbakrao Shrirangrao Bhise, Age-45 years, Occu:Agril, R/o-Bhokaramba, Tq-Renapur, Dist-Latur, 2) Dilip Malshetti Patil, Age-45 years, Occu:Agril, R/o-Naral, Tq-Deoni, Dist-Latur, 3) The Collector, Latur, Tq. & Dist-Latur, 4) State Election Commission, Maharashtra State, Mumbai, Through its Secretary, lpa245.11 3 5) Zilla Parishad, Latur, Tq. & Dist-Latur, Through its Chief Executive Officer, 6) Pandit Vithalrao Dhumal, Age-52 years, Occu:Agril, R/o-Shedol, Tq-Nilanga, Dist-Latur, 7) Sambhajirao Madhavrao Patil, Age-65 yeas, Occu:Agril, R/o-Shirur-Anantpal, Tq-Shirur-Anantpal, Dist-Latur, 8) Presiding Officer of the General Body Meeting dated 02.12.2009 of the Zilla Parishad, Latur. ...RESPONDENTS. ... Shri. P.M. Shah, Senior Counsel h/f. Shri. Subodh P. Shah Advocate for Appellants. Shri. P.R. Patil with Shri.E.P. Sawant with Shri. Mahesh Kale Advocates for Respondent Nos. 1 and 2. Shri. K.G. Patil, A.G.P. for Respondent No.3. Shri. S.T. Shelke Advocate for Respondent No.4 and 8. Shri. V.D. Hon Advocate for Respondent No.5. Shri. Amol S. Sawant Advocate for Respondent Nos. 6 and 7. ... WITH lpa245.11 4 LETTERS PATENT APPEAL NO.246 OF 2011 IN WRIT PETITION NO.2906 OF 2011 1) Pandit s/o Vithalrao Dhumal, Age-52 years, Occu:Agril, R/o-Shedol, Tq-Nilanga, Dist-Latur, 2) Sambhajirao s/o Madhavrao Patil, Age-65 years, Occu:Agril, R/o-Shirur-Anantpal, Tq-Shirur-Anantpal, Dist-Latur, ...APPELLANTS. (Original Petitioners) VERSUS 1) Trimbakrao Shrirangrao Bhise, Age-45 years, Occu:Agril, R/o-Bhokaramba, Tq-Renapur, Dist-Latur, 2) Dilip Malshetti Patil, Age-45 years, Occu:Agril, R/o-Naral, Tq-Deoni, Dist-Latur, 3) The Collector, Latur, Tq. & Dist-Latur, 4) State Election Commission, Maharashtra State, Mumbai, Through its Secretary, 5) Zilla Parishad, Latur, Tq. & Dist-Latur, Through its Chief Executive Officer, lpa245.11 5 6) Sheshrao Trimbakrao Patil, Age-50 years, Occu:Agril, R/o-Chincholi Tapse, Tq-Ausa, Dist-Latur, 7) Ramdas Jaisingrao Chavan, Age-55 yeas, Occu:Agril, R/o-Deotala, Tq-Ausa, Dist-Latur, 8) Jalilmiya Gafurmiya Deshmukh, Age-57 years, Occu:Agril, R/o-Sindkhed, Tq-Nilanga, Dist-Latur, 9) Vinayak s/o Shankarrao Waghmare, Age-30 years, Occu:Agril, R/o-Borol, Tq-Deoni, Dist-Latur, 10) Rishikesh Vithoba Badde, Age-50 years, Occu:Agril, R/o-Ujed, Tq-Shirur-Anantpal, Dist-Latur, 11) Channapa Baswanappa Holkunde, Age-54 years, Occu:Agril, R/o-Kasarshirshi, Tq-Nilanga, Dist-Latur, 12) Ram Nandevrao Gaikwad, Age-50 years, Occu:Agril, R/o-Dharangaon, Tq-Shirur-Anantpal, Dist-Latur, 13) Nagesh Dnyanoba Tabakle, Age-45 years, Occu:Agril, R/o-Dongargaon, Tq-Shirur-Anantpal, Dist-Latur, lpa245.11 6 14) Sau. Bharatbai Shivajirao Anchule, Age-60 years, Occu:Agril & Household, R/o-Sawari, Tq-Nilanga, Dist-Latur, 15) Sau. Kushawarta Chandrashekhar Belle, Age-49 years, Occu:Agril & Household, R/o-Deoni, Tq-Deoni, Dist-Latur. 16) Presiding Officer of the General Body Meeting dated 02.12.2009 of the Zilla Parishad, Latur. ...RESPONDENTS. ... Shri. P.M. Shah, Senior Counsel h/f. Shri. Amol S. Savant Advocate for Appellants. Shri. P.R. Patil with Shri. E.P. Sawant with Shri. Mahesh Kale Advocates for Respondent Nos. 1 and 2. Shri. K.G. Patil, A.G.P. for Respondent No.3. Shri. S.T. Shelke Advocate for Respondent No.4 and 16. Shri. V.D. Hon Advocate for Respondent No.5. Shri. S.P. Shah Advocate for Respondent Nos. 6 and 15. ... CORAM: NARESH H. PATIL AND T.V. NALAWADE, JJ. RESERVED ON: 8TH SEPTEMBER, 2011. PRONOUNCED ON: 16TH SEPTEMBER, 2011. lpa245.11 7 COMMON ORDER [PER NARESH H. PATIL, J.]: 1. By way of these Appeals, the Appellants have challenged the order passed by the learned Collector, Latur dated 8th April, 2011 disqualifying the Appellants for being Members/Councillors of the Zilla Parishad, Latur, under the provisions of the Maharashtra Local Authority Members Disqualification Act, 1986 (for short 'the Act'), and the order passed by the learned Single Judge of this Court in the proceedings of Writ Petition Nos. 2905 of 2011 and 2906 of 2011, whereby the Writ Petitions came to be dismissed. 2. The Appellants in Letters Patent Appeal No.246 of 2011 contested election to the seat of President and Vice President of Zilla Parishad, Latur, respectively and declared elected in the Special General Body Meeting of the Zilla lpa245.11 8 Parishad, Latur called for the purpose of holding elections on 2nd December, 2009. 3. The Appellants in Letters Patent Appeal No.245 of 2011 had cast their votes in favour of the elected President and Vice President, against the whip issued by the Party. All the Appellants were sponsored candidates of Indian National Congress Party and the elected Members/Councillors of Zilla Parishad, Latur. The Indian National Congress Party had appointed an observer, namely, Shri. Gulabrao Ghorpade, for the purpose of said election. It is contended by the Respondents that Shri. Gulabrao Ghorpade had declared the candidature of the Respondent Nos. 1 and 2, namely, Shri. Trimbakrao Shrirangrao Bhise and Shri. Dilip Malshetti Patil, for the seat of President and Vice President, respectively. 4. The President of Maharashtra Pradesh Congress Committee had issued a whip on 25th lpa245.11 9 November, 2009, authorizing Shri. Gulabrao Ghorpade, to issue whip for the purpose of said election and further authorized him to initiate action against the candidate/member of Zilla Parishad, Latur, in case he or she acts against the Party line. It is the contention of the Respondents that accordingly, Shri. Gulabrao Ghorpade had issued a whip addressed to all the elected Members of Zilla Parishad Congress Party indicating that on 2nd December, 2009, they shall vote in favour of official candidates for electing President and Vice President, namely, Shri. Trimbakrao Shrirangrao Bhise and Shri. Dilip Malshetti Patil. The Video/C.D. recording of the Special General Body Meeting was also held. 5. According to election programme, nominations were to be filled in between 11.00 a.m. to 1.00 p.m. on 2nd December, 2009. The Councillors filled in their nominations for the said posts. The Appellants in Letters Patent lpa245.11 10 Appeal No.246 of 2011 filed their nominations and the original Respondent Nos. 1 and 2, too filed nominations for the said posts. All these Councillors were belonging to Indian National Congress Party. 6. On 2nd December, 2009 meeting was convened at 3.00 p.m. Presiding Officer scrutinized the nomination forms. The announcement of valid nominations was made at about 3.20 p.m. Thereafter the Presiding Officer allowed 15 minutes time for withdrawal of the nominations. It is contended that during that period of 15 minutes, Shri. Trimbakrao Shrirangrao Bhise made an announcement in the meeting that as a leader of Zilla Parishad Party, Latur, he was authorized to make an announcement that Political Party had issued directions to the effect that the Councillors belonging to his Party, should vote in favour of the official candidates, namely, himself, i.e. Shri. Trimbakrao Shrirangrao Bhise lpa245.11 11 and Shri. Dilip Malshetti Patil. Some of the Members/Councillors, namely, Shri. Pandit Vithalrao Dhumal raised objection that the whip was not received by some of the Members of the Party. It is contended that Shri. Trimbakrao Shrirangrao Bhise thereafter announced that the whip of the Party would be served on all the Members before commencement of voting. 7. Finally, the Appellants in Letters Patent Appeal No.246 of 2011 remained as candidates for the post of President and Vice President against the candidates which were officially announced by Shri. Trimbakrao Shrirangrao Bhise. It is further contended that the election was held by show of hands and Appellants in Letters Patent Appeal No.246 of 2011, namely, Shri. Pandit Vithalrao Dhumal and Shri. Sambhajirao Madhavrao Patil were declared as elected. 8. The learned senior counsel Shri. P.M. lpa245.11 12 Shah appearing for the Appellants submitted that there is no pleading to the effect that Shri. Gulabrao Ghorpade held meeting on 30th November, 2009 to discuss regarding the elections to be held on 2nd December, 2009. During the course of hearing of the Petitions, orally it was submitted by the original Respondents that such a meeting was held. The Appellants neither received any agenda for the said meeting nor they attended the said meeting. The Appellants did not receive any communication in respect of issuance of whip till the elections were held. Learned senior counsel raised the issue in respect of source of authorization to issue whip in terms of Section 3 of the Act. According to learned senior counsel, there is no evidence on record to show that Shri. Manikrao Thakre was authorized to delegate his powers to Shri. Gulabrao Ghorpade for the purpose of issuance of whip. The question was raised in respect of the constitution of the political party providing such power to the State lpa245.11 13 President and its delegation. The learned senior counsel raised issue regarding competent person, authority to issue whip. It was submitted that there is no evidence on record to show that Shri. Trimbakrao Bhise was appointed as a leader of the Party, hence his announcement during the Special General Body Meeting had no relevance. The learned senior counsel submitted that the nature of whip is too vague to ascertain as to whether in a given case if the Councillor had flouted the whip, the only fall out was his/her disqualification. In the facts of the case, according to the senior counsel, the issuance of whip was allegedly communicated to the Councillors during 15 minutes time given for withdrawal of nominations, by the self proclaimed leader Shri. Trimbakrao Bhise, is neither legal nor logical. The whip, therefore, was not at all issued and if it was issued, was known to Shri. Trimbakrao Bhise only. The oral whip, if any, which was communicated to the Councillors, did not refer to consequences of lpa245.11 14 disobedience. In absence of there being any material, disqualifying 12 Councillors of Zilla Parishad, Latur would be absolutely unreasonable and harsh action. According the the learned senior counsel, the constituency represented by 12 Councillors would be deprived of the services of their representatives, which would be detrimental to the interest of the public at large. 9. The learned senior counsel Shri. Shah had referred to the provisions of the Act and Xth Schedule of the Constitution of India on the issue of whip. The learned senior counsel submitted that the Collector and the learned Single Judge have failed to properly appreciate the facts and the provisions of law. There are improvements made for the first time, during the course of recording of evidence, which has seriously prejudiced the case of the Appellants. 10. The learned senior counsel Shri. Shah, lpa245.11 15 appearing for the Appellants, in support of his submissions, cited following Case Laws: (A) On the point of competent authority to issue a whip:- Suresh Madhaorao Bhange & others vs. Collector, Wardha & others, 1990 (3) B.C.R. 199, and Sahebrao Narayan Kharat vs. Collector, Jalna, 2011 (4) Mh.L.J. 389. (B) On the point of source of authorization to issue whip in terms of Section 3 of the Act:- Sadashiv H. Patil vs. Vithal D. Teke, 2000 (8) S.C.S. 82 and Mayawati vs. Markadaya Chand, 1998 (7) S.C.C. 517, (C) On the point of maintainability of Letters Patent Appeal:- Ashok Jha vs. Garden Silk Mills Ltd., 2009(10) S.C.C. 584. lpa245.11 16 11. Shri. P.R. Patil, learned counsel appearing for Respondent Nos. 1 and 2, submits that the political party has powers to issue directions/whip as per the provisions of Section 3(1) of the Act. In the facts of the case, the State President of Maharashtra Pradesh Congress Committee, Shri. Manikrao Thakre, had nominated Shri. Gulabrao Ghorpade to issue whip on behalf of the party and accordingly Shri. Gulabrao Ghorpade had issued a whip on 2nd December, 2009. A meeting was held on 30th November, 2009 of all the elected Councillors and the candidates sponsored by the Indian National Congress Party and during the course of the election proceedings, Shri. Trimbakrao Bhise orally announced in respect of the official candidates and the issuance of whip. Inspite of the same, the Appellants disobeyed the whip and going against the party line, not only contested against the official candidates but decided not to vote in favour of the official candidates sponsored by the Congress Party. lpa245.11 17 Learned counsel submitted that the whip issued, was duly served on all the Councillors. In the submissions of the counsel, the Appellants in Letters Patent Appeal No.246 of 2011 got elected with the support of the other Councillors who were sponsored by B.J.P. and Shivsena political party. Except these 12 Appellants, the other Councillors obeyed the party whip, which demonstrates that knowing fully well, the Appellants disobeyed the whip contrary to the party directions. 12. Shri. P.R. Patil, learned counsel appearing for Respondent Nos. 1 and 2, in support of his submissions, cited following Case Laws: (A) On the point that 'political party' is interpreted as original political party and not the Legislature party:- Mayawati vs. Markendeya Chand and others, (1998) 7 S.C.C. 517, lpa245.11 18 and Rajendra Singh Rana vs. Swami Prasad Maurya and others, (2007) 4 S.C.C. 270. (B) On the point of power to issue direction/whip by a political party, Section 3(1) (b) of the Act does not provide for when and how such authorization shall be given:- Sadashiv H. Patil vs. Vithal D. Teke, 2000 DGLS (Soft.) 1342. (C) On the point whether the whip was duly served on the Appellants:- Shilpa Subhash Dhundur vs. Ratnagiri Nagar Parishad and others, (1991) 1 B.C.R. 287, (D) On the point, whether it is mandatory as per the statute to mention in the direction/whip regarding consequences of not following the said direction/whip:- Gangadhar Palo vs. Revenue Divisional Officer, lpa245.11 19 (2011) 4 S.C.C. 602, Girna Traders vs. State of Maharashtra, (2007) 7 S.C.C. 555, and State of Haryana vs. Ranbir (2006) 5 S.C.C. 167. (E) On the point of procedure to be followed by the Tribunal/ Collector determining disqualification:- Kedar Shashikant Deshpande vs. Bhor Municipal Council, A.I.R. 2011 S.C. 463. (F) On the point of scope for interference in Letters Patent Appeal :- Celina Coelho Pereira vs. Ulhas Mahabaleshwar Kholkar (2010) I S.C.C. 217. 13. We have perused the original record and the material placed before us. The provisions of Section 2 (j) and (p) of the Act read as under: "(j) "original political party" in relation to a councillor or a member, means the political lpa245.11 20 party to which he belongs for the purposes of sub-section(1) of Section 3, (p) "Zilla Parishad Party" in relation to a councillor of a Zilla Parishad belonging to any political party or aghadi or front in accordance with the Explanation to Section 3, means the group consisting of all the members of the Zilla Parishad for the time being belonging to that political party or aghadi or front in accordance with the said Explanation." 14. We have considered the provisions of law, the submissions advanced and the case law cited before us. Considering the record placed before us, we find that though it was not specifically pleaded that meeting was held on 30th November, 2009 of the Councillors of the Indian National Congress Party, but on the date of election i.e. on 2nd December, 2009, Shri. Trimbakrao Bhise had lpa245.11 21 orally announced the names of the official candidates and the issuance of party whip, that Councillors should vote in favour of Shri. Trimbakrao Bhise as a candidate for the post of President and Shri. Dilip Malshetti Patil for the post of Vice President. Both, the learned Collector and the learned Single Judge had reached findings of facts in respect of the said issue. We do not find any convincing reason to disturb the findings of facts. There is material placed on record in respect of Shri. Manikrao Thakre issuing whip and authorizing Shri. Gulabrao Ghorpade. Consequently, Shri. Gulabrao Ghorpade had issued whip on 2nd December, 2009. There is no dispute on the fact that there is no Zilla Parishad Party constituted by the Members of Congress Party in Zilla Parishad, Latur. The learned Collector had gone through the transcript of Video/ C.D. It is observed by the learned Collector that Shri. Trimbakrao Bhise had announced issuance of oral whip before withdrawal lpa245.11 22 of candidature. Oral statement made by Shri. Trimbakrao Bhise was recorded in Video/ C.D. Shri. Trimbakrao Bhise had announced that written whip has been served to all the Members of Congress Party before voting. The learned Collector, therefore, did not discard the said evidence occurring on the record. The learned Single Judge has not disturbed the said findings reached by the learned Collector. The learned Single Judge had also reached finding that Shri. Gulabrao Ghorpade was authorized by the political party to issue whip and the Appellants could not question the legality of the authority given in favour of Shri. Gulabrao Ghorpade. 15. There is substance in the submissions of the learned counsel Shri. P.R. Patil, appearing for Respondent Nos. 1 and 2 that Section 3 (1)(b) of the Act does not provide the manner of issuance of whip and its service on the Councillors. Any person authorized in this behalf by the political lpa245.11 23 party or aghadi could issue a whip. Oral communication of direction/whip is also sufficient service of whip, according to the learned counsel. 16. In the facts of the case and in the light of the Case Laws cited before us, we do not find that the learned Collector or learned Single Judge of this Court committed an error in arriving at conclusions that the Appellants were disqualified for showing disobedience to the party direction or whip. According to learned senior counsel Shri. Shah, clear and clinching evidence, regarding the party constitution of Congress Party, in respect of authority to issue whip, the power to delegate authority to issue whip, evidence in respect of service of whip on the Councillors, is not coming forth. It is true that there is oral evidence in respect of holding of meeting of the Councillors on 30th November, 2011. The said fact is not pleaded but considering in its entirety, the findings of facts reached, could not be disturbed lpa245.11 24 in respect of communication of whip on the day of election i.e. on 2nd December, 2009. There is evidence of the said incident being video-graphed and therefore, the same could not be discarded. 17. The other question is as to whether Shri. Trimbakrao Bhise was acting as a self proclaimed leader and whether Shri. Gulabrao Ghorpade authorized Shri. Trimbakrao Bhise to further communicate the party whip, would be a question of fact. Shri. Gulabrao Ghorpade could have adopted more suitable and appropriate method to communicate party whip to all the Councillors because rigorous compliance with the provisions of the Act and the Rules must be shown to have taken place while dealing with the disqualification petition. In the light of the facts of the case and the findings reached in the impugned orders, we are of the view that the same could not be disturbed as being erroneous or perverse findings of facts. lpa245.11 25 18. In the case of Sadashiv Patil vs. Vithal D. Teke and another, (2000) 8 S.C.C. 82, the Apex Court observed in Para 9 and 14 as under: "9) The disqualification with which we are concerned is contemplated by Clause (b) of sub- section (1) of Section 3 of the Act. Voting or abstaining from voting in any meeting of the Municipal Council may entail disqualification, if: (1) such voting or abstention is contrary to any direction issued by (a) the political party or Aghadi or front to which he belongs, or (b) by any person or authority authorised by the political party or Aghadi or front in this behalf; (2) such voting or abstention is not accompanied by a prior permission of such political party or Aghadi or front or person or authority having been obtained previously or condoned subsequently within 15 days lpa245.11 26 from the date of such voting or abstention. Condoning is not permissible if such voting or abstention is not preceded by prior permission and is relatable to election of any office, authority or committee under the relevant Municipal Law. Thus, the power to issue a direction, popularly called a whip, in order to attract penalty of disqualification has to be issued either by the political party or by Aghadi or front to which the Councillor belongs. The political party or Aghadi or front may act collectively or may act through any person or authority. In the later case the person or authority must be authorised by the political party or Aghadi or front in this behalf, i.e., for issuing any direction (whip). If the political party, Aghadi or front has any rules or regulations whether known as such or a constitution or called by any other name then lpa245.11 27 the authorisation of the person or authority can be determined by looking into such document which would be available on the record of the Collector having been filed as accompanying the statement in Form I, under Rule 3 (1), else the factum of such authorisation in this behalf having been given to the person or authority issuing the direction or whip shall have to be proved to the satisfaction of the Collector dealing with a reference under Section 7 read with Rules 6, 7 and 8." "14) A finding as to disqualification under the Act has the effect of unseating a person from an elected office held by him pursuant to his victory at the polls in accordance with democratic procedure of constituting a local authority. The consequences befall not only him as an individual but also the constituency represented by him which would cease to be lpa245.11 28 represented on account of his having been disqualified. Looking at the penal consequences flowing from an elected Councillor being subjected to disqualification and its repercussion on the functioning of the local body as also the city or township governed by the local body the provisions have to be construed strictly. A rigorous compliance with the provisions of the Act and the Rules must be shown to have taken place while dealing with a reference under Section 7 of the Act." 19. In the case of Mayawati vs. Markandeya Chand and others, (1998) 7 S.C.C. 517, the Apex Court observed in Para 72 and 79 as under:- "72) The argument that the context in para 2 (1) (b) requires to equate 'political party' with 'legislature party' even though the definition clause reads differently is not acceptable. A reading of sub para lpa245.11 29 (b) and the explanation in para 2 (1) places the matter beyond doubt that the 'political party' in sub para (b) refers to the 'original political party' only and not to the Legislature Party. According to the explanation, for the purpose of the entire sub para, an elected member of the House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member. Certainly, the Legislature Party could not have set up the member concerned as a candidate for election." "79) There is also no difficulty in accepting the finding of the Speaker that the direction dated 20.10.1997 was not in accordance with the law laid down by this court in 'Hollohan'. In para 123, it is said: (SCC pp. 716-17) "123.Keeping in view the consequences of the disqualification lpa245.11 30 i.e., termination of the membership of a House; it would be appropriate that the direction or whip which results in such disqualification under Paragraph 2(1)(b) is so worded as to clearly indicate that voting or abstaining from voting contrary to the said direction would result in incurring the disqualification under Paragraph 2(1)(b) of the Tenth Schedule so that the member concerned has fore-knowledge of the consequences flowing from his conduct in voting or abstaining from voting contrary to such a direction". Mr. Sibal's contention that such a