1 WRIT PETITION NO.: 472 OF 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CIVIL JURISDICTION WRIT PETITION NO.: 472 OF 2011 *** 1. Tarabai W/o Diliprao Patil, Age: Major, Occu.: Household, R/o Bhagyadya Nagar, Chopda, Dist. Jalgaon. 2. Dr.Mahendra S/o Vinayakrao Patil, Age: 51 years, Occu.: Councilor, R/o Bhagyadya Nagar, Chopda, Dist. Jalgaon. ... PETITIONERS. Versus 1. The State of Maharashtra, Through Secretary, Rural & Urban & Development Department, Mantralaya, Mumbai-32. 2. The Collector, Jalgaon. 3. Shantilal S/o Tarachand Bothra, Age: Major Occu.: Business, R/o Bajar Peth Chopda, Dist. Jalgaon. 4. Municipal Corporation, Chopda Dist. Jalgaon. ... RESPONDENTS *** *** Mr. Prakashsing B. Patil, Advocate for the Petitioner. Mr. D. R. Korde, A.G.P. for Respondent Nos.1 and 2. Mr. A. B. Kale, Advocate for Respondent No.3. *** 2 WRIT PETITION NO.: 472 OF 2011 CORAM: B. P. DHARMADHIKARI, J. DATED:- 3rd FEBRUARY, 2011. ORAL JUDGMENT: 1. Heard Advocate Shri P.B.Patil for Petitioner, Advocate Shri A.B.Kale for Respondent No.3, learned A.G.P. Shri D. R. Korde for Respondent Nos.1 and 2. The dispute arises out of proceedings under Maharasthra Local Authority Members' Disqualification Act, 1987 (hereinafter referred as the 1987 Act) and hence service of notice upon Respondent No.4 is not necessary. 2. The matter is taken up for final hearing as jointly requested. Rule, made returnable forthwith accordingly, by consent. 3. Shri Patil, learned counsel for Petitioner has urged that in application for disqualification as filed, there was no specific statement about authorisation in favour of group leader Shri Shantilal to issue whip. In absence of that authorisation, the disobedience as alleged could not have been recorded and the finding of disqualification therefor is unsustainable. Learned counsel Mr. Kale points out that as per the Rules of 3 WRIT PETITION NO.: 472 OF 2011 the political party of which Shri Shantilal is group leader, he has to pay subscription of Rs.10/- every year. Its non payment results in removing the member from the Aghadi and as such the Petitioner cannot be held guilty of violating the whip. Learned counsel states that Petitioner has not paid that yearly subscription. He further states that Respondent No.2 Collector has not recorded any specific finding on either of these contentions. Support is being taken from judgment of Honourable Apex Court in the case of "Sadashiv H. Patil V/s Vithal D. Teke and others" reported in 2001 (1) Mah. L. J. 312 and judgment of learned Single Judge of this Court in the case of "Vandana W/o Prabhakar Damedhar V/s Collector, Amravati and others" reported in 2009 (2) Mah. L. J. 483. 4. Shri Kale for Respondent NO.3 and learned A.G.P. for Respondent Nos.1 and 2 support the impugned order. Shri Kale states that absence of authorisation in Shri Shantilal to issue whip was never the defence before Collector. Such defence is being raised for the first time before this Court. Even otherwise, the 4 WRIT PETITION NO.: 472 OF 2011 Collector has recorded a specific finding and noted that on 20th September, 2007 there was a resolution authorising Shri Shantilal to issue such a whip. He further states that the petitioner has paid full five years subscription in advance and hence his plea of non payment is incorrect. In the alternative, without prejudice to this contention, he invites attention to provisions of section 3 (1) (a) of 1987 Act to urge that such non payment in present facts needs to be viewed as voluntarily giving up membership of such political party or Aghadi. 5. After hearing respective counsel, I find that in para 4 of his order the Collector has specifically recorded a finding that as per resolution dated 20th September, 2007 powers to issue whip are given to Shri Shantilal Bothra. Written statement filed by the petitioner before Collector does not show a defence that there was no such authorisation in favour of Shri Shantilal. At this stage, Sri Patil has invited attention to paragraph Nos.8 and 9 of written statement to urge that there is such defence. The written statement, 5 WRIT PETITION NO.: 472 OF 2011 in para 8 and 9, does not show any specific challenge with contention that Shri Shantilal was not authorised to issue whip. The pleadings therein at the most go to show that there was no meeting on 19th February, 2009 issuing whip as sought to be implemented by the political party. Collector has rightly appreciated the controversy. I do not find said finding either perverse or erroneous. 6. The judgment of Honourable Apex Court, on which reliance is being placed by Advocate Shri Patil only shows that such authorisation in favour of Shantilal needs to be proved. That authorisation is proved by producing resolution dated 20th September, 2007. The said ingredient, therefore, is satisfied in the present matter. 7. The next contention of Shri Patil about non payment of subscription now needs to be looked into. The relevant provision of the Rules, page 46 of the petition, show that if member defaults in paying the membership fee of Rs.10/- per year, he ceases to be member of political party. The contention of Shri Patil is, petitioner has not paid such membership 6 WRIT PETITION NO.: 472 OF 2011 fees of Rs.10/-. Shri Kale has urged that such fee for all five years to come was paid in advance. With the assistance of learned counsel, I have perused the impugned order. Impugned order, in paragraphs 2, shows observation that even if the petitioner has not paid that subscription, Aghadi has not cancelled his membership. Thus, contention of Shri Patil about automatic ceasasion of membership is not considered. Similarly, the Collector has not recorded any finding on contention of Respondent No.3 about advance payment for five years. The observations, also appear to be conditional i.e. presuming non- payment. 8. In view of this position I am not commenting upon the provision of Rule 2 of the Rules framed by Aghadi requiring member to pay subscription. As I have found that this aspect has not been looked into properly by the Collector and this has resulted in jurisdictional error, impugned order only to that extent is quashed and set aside. The matter is remanded to the Respondent No.2 Collector for taking fresh decision in the 7 WRIT PETITION NO.: 472 OF 2011 light of rival contentions of parties and in the light of scheme of the Rules mentioned supra. Similarly, the contention of Respondent no.3 that such non-payment constitutes voluntarily giving up membership of political party also needs to be considered by Collector. Accordingly, only for the said purpose, the finding in that respect, recorded by the Collector, in order dated 5th January, 2011 is quashed and set aside. Rest of the order is maintained as it is. The matter is placed before the Collector to examine afresh the issue of alleged non-payment of subscription, if any, and consequences flowing therefrom. Rule is made absolute accordingly. No costs. [B.P.DHARMADHIKARI, J.] Dated:-03/02/2011. ans/472 8 WRIT PETITION NO.: 472 OF 2011 WRIT PETITION NO.: 472 OF 2011 Date of decision: 3rd FEBRUARY, 2011. For approval and signature THE HONOURABLE SHRI JUSTICE B. P. DHARMADHIKARI. . Whether Reporters of local papers ... Yes may be allowed to see the judgment? . To be referred to the Reporter or not? ... No . Whether Their Lordships wish to see ... No the fair copy of the judgment? . Whether this case involves a substantial... No question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder? . Whether it is to be circulated to the ... No Civil Judges? . Whether the case involves an important ... No question of law and whether a copy of the judgment should be sent to Nagpur, Goa and Bombay offices? [G. F. ANSARI] PRIVATE SECRETARY TO THE HONOURABLE JUDGE