1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.3875 OF 2009 Jitendra Himmat Biraris, age: 32 years, Occ: Agri., R/o At Post Balhane, Taluka Sakri, District Dhule. Petitioner Versus 1 Kiran s/o Gulabrao Patil, age: 30 years, Occ: Agriculture, R/o Mehergaon, Tq. Dhule, District Dhule. 2 The District Collector, Dhule. Respondents WITH WRIT PETITION NO.3876 OF 2009 Bhiwaji Bhatu Pawar, age: 40 years, Occ: Agri., R/o At Post Bhadgaon, Taluka Sakri, District Dhule. Petitioner Versus 1 Kiran s/o Gulabrao Patil, age: 30 years, Occ: Agriculture, R/o Mehergaon, Tq. Dhule, District Dhule. 2 The District Collector, Dhule. Respondents WITH WRIT PETITION NO.3877 OF 2009 Kedabai Shantaram Jadhav , age: 36 years, Occ: Household, 2 R/o At Post Kasare, Tq. Sakri, District Dhule. Petitioner Versus 1 Kiran s/o Gulabrao Patil, age: 30 years, Occ: Agriculture, R/o Mehergaon, Tq. Dhule, District Dhule. 2 The District Collector, Dhule. Respondents WITH WRIT PETITION NO.3878 OF 2009 Mrs.Soni Bharat Pawra, age: 22 years, Occ: Household, R/o At Post Kodid, Taluka Shirpur, District Dhule. Petitioner Versus 1 Kiran s/o Gulabrao Patil, age: 30 years, Occ: Agriculture, R/o Mehergaon, Tq. Dhule, District Dhule. 2 The District Collector, Dhule. Respondents WITH WRIT PETITION NO.3879 OF 2009 Mrs.Rajnibai Baburao Gharte, age: 45 years, Occ: Agri., R/o At Post Samode, Taluka Sakri, District Dhule. Petitioner Versus 1 Kiran s/o Gulabrao Patil, age: 30 years, Occ: Agriculture, R/o Mehergaon, Tq. Dhule, District Dhule. 3 2 The District Collector, Dhule. Respondents Shri V.J.Dixit, Senior Counsel holding for Mr.P.D.Bachate, advocate for the petitioner. Shri P.M.Shah, Senior Counsel holding for Mr.S.P.Shah, advocate for Respondent No.1. Mr.V.B.Ghatge, A.G.P. for Respondent No.2. CORAM: R.M.BORDE, J. Reserved on: 24 th March, 2010 Pronounced on: 15 th April, 2010. ORAL JUDGMENT: 1 Petitioners, in these petitions, are challenging the order passed by Collector, Dhule dated 27 th May 2009, thereby turning down objections raised in the References presented by Respondent No.1 to the Collector under Section 7 of Maharashtra Local Authority Members’ Disqualification Act, 1986 (hereinafter referred to as “Disqualification Act”). 2 Petitions presented by Respondent No.1 herein under Section 7 of the Disqualification Act were referred to the Collector regarding disqualification of petitioners. Petitioners are elected members of Zilla Parishad, Dhule. It is the allegation of respondent No.1 that petitioners in disregard to the whip issued by leader of Zilla Parishad party have cast vote at the elections of President and Vice President as against the candidate set up by the party and as such they have incurred disqualification within meaning of Disqualification Act and as such are liable to be unseated. There was preliminary objections raised as regards maintainability of References by the petitioners. The objections raised are set out as below: 4 (a) The References do not comply with the requirement of Rule 6 of Disqualification Rules; (b) The References have not been verified in the manner prescribed by Order VI Rule 15 of the Code of Civil Procedure; (c) The annexures annexed to the References are not signed by the applicant and are not verified in the manner laid down in the Code of Civil Procedure for verification of pleadings. (d) The applicant does not sign statement of material facts on which applicant rely; (e) The applicant has not filed affidavits in support of the References as required by Order VI Rule 15(4) of the Code of Civil Procedure; (f) Applicant has not given names of persons from whom applicant gained information; (g) Applicant is not authorised or recognised as leader of Zilla Parishad party and he has not been elected as a leader of Zilla Parishad party, therefore, he is not empowered to issue whip and as such has no locus standi to file Reference. (h) National Congress Party (NCP) is not registered as required by provisions of the Act as a Zilla Parishad Party. 3 According to petitioners herein, mandatory requirements in respect of presentation of References have not been complied with and as such, References are liable to be rejected in view of provisions of Rule 7(2) of the Maharashtra Local Authority Members’ Disqualification Rules, 1987 (hereinafter referred to as “Rules of 1987”). 4 The objections raised by petitioners herein were controverted by the respondents contending that there is sufficient compliance of the procedure as prescribed by Rules. It is also submitted that provisions of Rule 7 are directory in 5 nature and non compliance thereof will not lead to a consequence of automatic dismissal of References. 5 After considering rival contentions, Collector, Dhule, while passing impugned order, has held that most of the objections raised by petitioners are without any substance. However, so far as verification of References and defect as regards putting signatures on annexures by respondents is concerned, it is observed by the Collector that said defect is curable and is not fatal in view of certain judgments referred to in the order. The Collector, Dhule, as such, turned down the objections raised by petitioners herein in view of the order passed on 27.05.2009. The petitioners, as such, have approached this Court raising challenge to the order passed by Collector, Dhule, holding that References presented to the Collector are maintainable. 6 I have heard arguments advanced by Shri V.J.Dixit, learned Senior Counsel holding for Shri P.D.Bachate, advocate for petitioners and Shri P.M.Shah, learned Senior Counsel holding for Shri S.P.Shah, advocate for Respondent No.1. 7 Although learned Senior Counsel appearing for Respondent No.1 has controverted the contentions raised by petitioners in respect of compliance of provisions of Rule 7 of the Rules and has contended that there is in fact no lacuna in presentation of References and the References presented are in conformity with Rules, it is also contended that even though it is assumed that there is some defect as noted by the Collector in paragraph 16 (e) of the judgment, the defect is curable and does not lead to consequence of automatic dismissal of References. 8 Without going into the factual aspects as to whether observations made in para 16(e) of the judgment are factually correct or not, it would be 6 proper to deal with broader question raised in the petitions, as to whether compliance of Rule 7(2) can be said to be mandatory and non compliance thereof would lead to consequence of automatic dismissal of References. 9 Learned Senior Counsel appearing for petitioners contends that provisions contained in Rule 7 are mandatory in character and there cannot be any relaxation in respect of compliance of procedural aspects of the matter in relation to presentation of References, as required under Rules 6 and 7 of the Rules. Relevant Rules are quoted below: 6. References to be by petitions - (1) No reference of any question as to whether a councillor in relation to a municipal party, Zilla Parishad party, or member in relation to a Panchayat Samiti party has become subject to disqualification under the Act shall be made except by a petition in writing to the Commissioner in the case of a councillor of a Municipal Corporation and the Collector in the case of any other councillor or member, by any other councillor or, as the case may be, member, in relation to such councillor or, as the case may be, member. (2) Before making any petition in respect of a councillor in relation to a municipal party and a Zilla Parishad party or a member in relation to the Panchayat Samiti party, the petitioner shall satisfy himself that there are reasonable grounds for believing that a question has arisen as to whether such councillor or, as the case may be, member has become subject to disqualification under the Act,- 7 (3) Every petition - (a) shall be accompanied by copies of documentary evidence, if any, on which the petitioner relies and where the petitioner relies on any information furnished to him by any person, a statement containing the names and address of such person and the gist of such information as furnished by each such person. (4) Every petition and any annexure thereto shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (V of 1908) for the verification of pleadings. 7 Procedure - (1) On receipt of a petition under Rule 6, the Commissioner, or, as the case may be, Collector shall consider whether the petition complies with the requirements laid down in that rule. (2) If the petition does not comply with the requirements of Rule 6, the Commissioner, or , as the case may be, Collector shall dismiss the petition and intimate the petitioner accordingly. (3) If the petition complies with the requirements of Rule 6, the Commissioner, or, as the case may be, Collector shall forward copies of the petition and of the annexures thereto - (a) to the councillor in relation to a municipal party and a Zilla Parishad party and member in relation to a Panchayat Samiti party in respect of whom the petition has been made, and (b) where such councillor in relation to a municipal 8 party and a Zilla Parishad party and member in relation to a Panchayat Samiti party belongs to any political party or aghadi or front and such petition has not been made by the leader thereof, also to such leader; and such councillor, member or leader shall, within seven days of the receipt of such copies, or within such further period as the Commissioner, or, as the case may be, Collector may for sufficient reason allow, forward his comments in writing thereon to the Commissioner, or, as the case may be, Collector. (4) After considering the comments, if any, in relation to the petition received under sub-rule (3) within the period allowed (including the extended period), the Commissioner, or, as the case may be, Collector shall proceed to determine the question after making a preliminary enquiry. (5) The procedure which shall be followed by the Commissioner, or, as the case may be, Collector for the purpose of making a preliminary enquiry to determine any question under sub-rule (4) shall be as prescribed in sub-rules (6) to (15). (6) The Commissioner or, as the case may be, Collector shall draw up or cause to be drawn up-- (i) the substance of the imputations of disqualification into definite and distinct articles of charge; (ii) a statement of the imputations of disqualification in support of each article of charge, which shall contain-- (a) a statement of all relevant facts including any admission or confession made by the Councillor or 9 the Member, and (b) a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained. (7) The Commissioner or, as the case may be, Collector shall deliver or cause to be delivered to the Councillor, or as the case may be, the Member, a copy of articles of charge, the statement of the imputation of disqualification and a list of documents and of the witnesses by which each article of charge is proposed to be sustained, and shall by a written notice, require the Councillor or, as the case may be, the A member to submit to him within such time as may be specified in the notice, a written statement of his defence and to state whether he desires to be heard in person. (8) On receipt of the written statement of defence, the Commissioner or, as the case may be, the Collector, may himself inquire into such of the articles of charge as are not admitted, and where all the articles of charge have been admitted by the Councillor or Member in his written staement of defence, the Commissioner or, as the case may be, the Collector, shall record his findings on each charge after taking such evidence as he may think fit and shall act in the manner laid down in rule 8 of these rules. (9) If no written statement of defence is submitted by such Councillor or Member, the Commissioner or, as the case may be, the Collector shall proceed to inquire as if the Councillor or Member has nothing to say. 10 (10) The Commissioner or, as the case may be, Collector shall require the complainant as well as the Councillor or Member who wishes to be heard either in person or through his Advocate to appear before him on such day and at such time as may be fixed by him. (11)The Councillor or, as the case may be, the Member, shall appear in person before the Commissioner or, as the case may be, the Collector, on such day and at such time within ten working days from the date of receipt by him of the articles of charge and the statement of the imputations of disqualification, as the Commissioner or, as the case may be, the Collector, may, by a notice in writing, specify in this behalf, or within such further time not exceeding ten days, as the Commissioner or, as the case may be, the Collector may allow. (12)The Commissioner or, as the case may be, the Collector, shall, if the Councillor or, as the case may be, the Member, fails to appear within the specified time or refuses or admits to plead, produce the evidence by which he proposes to disprove article of charge, adjourn the case to a later date not exceeding thirty days, after recording an order that the Councillor or, as the case may be, the Member, may for the purposes of preparing his defence-- (i) inspect within five days of the order or within such further time not exceeding five days as the Commissioner or, as the case may be, the Collector, may allow, the documents specified in the list referred 11 to in sub-rule (6) of this rule; (ii) submit a list of witnesses to be examined on his behalf. (13)Where the Councillor or, as the case may be, the Member applies orally or in writing for the supply of copies of the statements of witnesses mentioned in the list referred to in sub-rule (6) of this rule, the Commissioner or, as the case may be, the Collector shall furnish him with such copies as early as possible, and in any case not later than three days before the commencement of the examination of the witnesses on behalf of the disciplinary authority. (14)The enquiry shall be commenced on the date fixed in that behalf by the Commissioner or, as the case may be, the Collector, and shall be continued thereafter on such date or dates as may be fixed from time to time by him. (15) On the date fixed for the inquiry, the oral and documentary evidence shall be produced by or on behalf of the petitioner. The witnesses shall be examined by or on behalf of the petitioner and may be cross-examined by the Councillor or Member, against whom there are charges of disqualification. 10 Rule 7(2) prescribes that if the petition does not comply with Rule 6, the Commissioner, or as the case may, the Collector shall dismiss the petition. 11 Learned Senior Counsel appearing for petitioners has invited my attention to the Division Bench judgment of this Court in the matter of Sayyad 12 Tahir Hussain Mainuddin & another Vs. State of Maharashtra & others, reported in 2007 (6) ALL M R 14, and contended that as held by the Division Bench of this Court, provisions of Rule 7 of the Rules are mandatory and non compliance thereof shall entail in dismissal of the Reference. This Court, while considering provisions of Rules of 1987, has taken into account judgments arising out of provisions of Representation of the People Act. While considering the difference in scheme between two Acts, this Court has observed in paragraph 8 of the judgment, thus: “.... If we are to consider the two schemes together i.e. Sections 81 to 83 on one side and read with Section 86 of Representation of People Act, and Rules 6 & 7 on the other side, there is one more striking difference. On reference to Section 86(1) of Representation of People Act, 1951, it is evident that non-compliances stand classified into two groups. Non-compliance of Sections 81 & 82 and 117 invite the High Court to dismiss an election petition, but for non compliance of Section 83, the High Court, while considering election petition, is not required to dismiss the same. Thus, Representation of People Act classifies the defects in the election petition into two groups i.e. curable and not curable. On reference to language of sub-rule (2) of Rule 7, it is evident that none of the defects in the reference petition or in other words non compliances of Rule 6 are pardonable. Any and every non compliance of Rule 6 meets with only one fate i.e. dismissal of the reference petition either by the Commissioner or the Collector, as the case may be. This Court has further observed in paragraph 12 of the judgment, thus: “...... On reference to sub-rule (2) of Rule 7, it is evident that there is no option to the Collector or the Commissioner. As and when any petition is found not complying with the requirement of Rule 6, the competent authority is required to dismiss the petition and inform the petitioner accordingly. The strictness of the provision is understandable. The legislature probably desires that a 13 representative of the people elected by his constituency should not be lightly dislodged by a legal battle. Since Rule 3(b) requires copies of the documentary evidence to be accompanied with the petition, we believe the statute gives the documentary evidence a status of annexure or of being integral part of the petition and, therefore, compliance of sub-rule (4) of Rule 6 regarding those documents (true copies of documentary evidence to be relied upon) is a must and failure entails the consequences as prescribed by Rule 7(2) of Disqualification Rules, 1987.” 12 Learned Senior Counsel appearing for petitioners has also placed reliance on the judgment in the matter of Hariharrao Vishwanathrao Bhosikar Vs. Datta Anandrao Pawar and others, reported in 2005 (4) Mh.L.J. 211. It is held by learned Single Judge of this Court, on consideration of provisions of Rules, that there is no power vested with the Collector to accept the petition which does not comply with requirements of Rules. Learned Single Judge has heavily relied upon the judgment of Apex Court in the matter of Sadashiv H. Patil Vs. Vithal D. Teke, reported in 2001 (1) Mh.L.J. (SC) 312. 13 Reliance is also placed on the judgment delivered by learned Single Judge of this Court in the matter of Rohidas Shankar Gadekar Vs. State of Maharashtra & others in Writ Petition No.5448 of 2009, decided on 18 th March, 2004; as well as in the matter of Mirza Kadir Baig Rasul Baig Vs. District Collector, Parbhani & others in Writ Petition No.3898 of 2002, decided on 19 th December 2002. 14 Learned Senior Counsel appearing for Respondent No.1 has invited my attention to the judgment of Apex Court in the matter of Dr.Mahachandra Prasad Singh Vs. Chairman, Bihar Legislative Council and others, reported in 2004 AIR SCW 6278, which has been relied upon by the learned Single 14 Judge of this Court while dealing with an issue in the matter of Chandrakant s/o Gajananrao Pise & others Vs. Collector, Nagpur & others, reported in 2010 (1) Mh.L.J. 268. A similar view is adopted by learned Single Judge of this Court while dealing with the matter in the case of Manoj Bansilal Biyani Vs. Sameer Krishnadhan Karr & another, reported in 2009 (5) Bombay Cases Reporter 753. 15 Learned Single Judge, while dealing with Chandrakant Pise’s (2010 (1) Mh.L.J. 268) matter, has considered all the judgments referred to above and placing reliance on the judgment in the matter of Dr.Mahachandra Prasad Singh Vs. Chairman, Bihar Legislative Council & others, reported in 2004 AIR SCW 6278, delivered by Three-Judge Bench of the Apex Court, has recorded a conclusion that provisions of Rule 7(2) of the Rules of 1987 are directory in nature and non compliance of the procedural aspects relating to presentation of Reference will not lead to consequence of automatic dismissal of petitions. The Apex Court was dealing with the matter in respect of disqualification of a Member of Legislative Council. The objection raised before the Apex Court was that the Reference made to the Speaker of Assembly does not comply with the provisions of Rules 6 & 7 of Bihar Legislative Council Members (Disqualification on Ground of Defection) Rules, 1994, framed by the Speaker under Tenth Schedule of the Constitution. It was contended before the Apex Court that, as the petition presented to the Speaker does not comply with provisions of Rule 6 and that Rule 7 of the Rules provide for dismissal of the petition, which does not comply with requirement of Rule 6, the Chairman of Legislative Council ought to dismiss the Reference. In paragraph 16 of the judgment, the Apex Court has observed thus: “16 Ssub-rule (1) of Rule 6 says that no reference of any question as to whether a member has become subject to disqualification under the Tenth Schedule shall be made except by a petition in relation to such member made in accordance with the provisions of the said Rule and sub- rule (6) of the same Rule provides that every petition shall 15 be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings. The heading of Rule 7 is “PROCEDURE”. Sub-rule (1) of this Rule says that on receipt of petition under Rule 6, the Chairman shall consider whether the petition complies with the requirement of the said Rule and sub-rule (2) says that if the petition does not comply with the requirement of Rule 6, the Chairman shall dismiss the petition. These rules have been framed by the Chairman in exercise of power conferred by paragraph 8 of Tenth Schedule. The ppurpose and object of the Rules is to facilitate the job of the Chairman in discharging his duties and responsibilities conferred upon him by paragraph 6, namely, for resolving any dispute as to whether a member of the House has become subject to disqualification under the Tenth Schedule. The Rule being in the domain of procedure, are intended to facilitate the holding of inquiry and not to frustrate or obstruct the same by introduction of innumerable technicalities. Being subordinate legislation, the Rules cannot make any provision which may have the effect of curtailing the content and scope of the substantive provision, namely the Tenth Schedule. There is no provision in the Tenth Schedule to the effect that until a petition which is signed and verified in the manner laid down in the CPC for verification of pleadings is made to the Chairman or the Speaker of the House, he will not get the jurisdiction to give a decision as to whether a member of a House has become subject to disqualification under the Schedule. Paragraph 6 of the Schedule does not contemplate moving of a formal petition by any person for assumption of jurisdiction by the Chairman or the Speaker of the House. The purpose of Rules 6 and 7 is only this much that the necessary facts on account of which a member of the House becomes disqualified for being a member of the House under paragraph 2, may be brought to the notice of the Chairman. There is no lis between the person moving the petition and the member of the House who is alleged to have incurred a disqualification. It is not an adversarial kind of litigation where he may be required to lead evidence. Even if he withdraws the petition it will make no difference as the duty is cast upon the Chairman or the Speaker to carry out the mandate of the constitutional provision, viz. the Tenth Schedule. The object of Rule 6 which requires that every petition