Case: SAU. SANGEETA W/O SUNIL SHINDE Vs. THE STATE OF MAHARASHTRA  AND ORS

3. The facts, in brief, giving rise to the present appeal are as under:The appellant along with respondent Nos. 3, 4 and 5 were elected as members of the Panchayat Samiti, Shrirampur in the elections, which were held in the year 2017. It is not in dispute that all four of them had contested the election to the Panchayat Samiti on the authorisation of the Indian National Congress Party (hereinafter referred to as INC Party). As such, the appellant and respondent Nos. 3, 4 and 5 formed a Panchayat Samiti Party in the name of INCPS Party.The first meeting of the INCPS Party was held on 1.3.2017. The said meeting was presided over by Shri Jayantrao Sasane, the then President of the Ahmednagar District INC Party. As per the resolution passed in the said meeting, it was resolved to select the appellant as Gatneta (Party Leader/Party Whip) of INCPS Party. It was further resolved to authorise the appellant to prepare proposals by making rules and regulations and submit the same to the District Collector, Ahmednagar. In the said meeting, it was further resolved that in the event it was decided to change the Party Leader/Party Whip, Mr. Jayantrao Sasane, the then District President of INC Party will have all the powers, so also the power, to submit a proposal to the DistrictCollector in accordance with the rules.Accordingly, the necessary information was submitted by the appellant to the District Collector on 7.3.2017, informing about the formation of INCPS Party so also she being elected as the leader of the said Party. The District Collector, Ahmednagar vide order dated 8.3.2017 recorded in Form (4) as per Rule 5(1) of the Maharashtra Local Authorities Members Disqualification Rules, 1987 (hereinafter referred to as the said Rules) about the registration of the Aghadi; the name of the members; and the name of the Party Leader.A complaint dated 19.12.2019 came to be filed by respondent Nos. 3 to 5 against the appellant before the District President, Ahmednagar District INC Party alleging therein that the appellant during her tenure of two and half years had neither taken the members of INCPS Party into confidence nor had convened any meeting of INCPS Party.According to the contesting respondents, a notice of meeting convened on 4.1.2020 came to be served upon the appellant for change of Gatneta on 26.12.2019.In the meeting held on 4.1.2020 under the Chairmanship of Ahmednagar District INC Party President Mr. Balasaheb Salunke, which was attended by respondent Nos. 3 to 5, a unanimous resolution was passed for removing the appellant from the post of Party Leader of INCPS Party. Vide another resolution passed in the said meeting, it was resolved to appoint respondent No.3 as Party Leader/Party Whip of INCPS Party and she was also authorised for issuing whips. Respondent No.3 was also authorised to submit a proposal to the District Collector, Ahmednagar regarding change of Party Leader/Party Whip.Respondent No.3 submitted a proposal on 6.1.2020, which came to be approved by the District Collector vide order of the same date.It further appears that the election to the post of Chairman and Vice-Chairman of the Shrirampur Panchayat Samiti was held on 7.1.2020. In the said election, the appellant came to be elected as Chairman of the Panchayat Samiti.It is pertinent to note that prior to the said election, two conflicting whips came to be issued insofar as INCPS Party is concerned. One whip came to be issued by respondent No.3 directing therein that in the election for the post of Chairman, she was given candidature by the INCPS Party whereas for the post of Vice-Chairman, respondent No.4 was given candidature by the INCPS Party. It was therefore directed that all the members of the INCPS Party should remain present in the election of the Chairman and the Vice-Chairman on 7.1.2020 and vote in favour of the aforesaid two candidates. It was further directed that in the event of failure to comply with the same, it would be treated as defection/anti-party activity and necessary action would be taken in accordance with law.Another whip came to be issued by the appellant directing the members of the INCPS Party stating therein that the INCPS Party had given candidature to the appellant herself and all the members should cast vote in her favour. It also contained a similar direction, that on account of non- compliance with the same, the members will face action for disqualification under the provisions of the said Rules.Subsequent to the election, disqualification proceedings being Disqualification Petition No.1 of 2020 came to be filed by the appellant against respondent Nos.3 to 5, whereas Disqualification Petition No.2 of 2020 came to be filed by respondent No.3 against the appellant.It is pertinent to note that in the election for the post of Chairman (Sabhapati) that was held on 7.1.2020, except the appellant, all the members of the INCPS Party voted against the appellant. However, on account of the support of the members belonging to other Parties, the appellant came to be elected in the said election.The appellant thereafter approached the Division Bench of the High Court of Judicature at Bombay, bench at Aurangabad, by way of Writ Petition No.1853 of 2020 challenging the decision of the District Collector, Ahmednagar dated 6.1.2020 approving the appointment of respondent No.3 as Gatneta. Vide order dated 31.1.2020, a notice came to be issued in the said writ petition and by way of interim measure the disqualification proceedings filed by both the parties were stayed. Vide the impugned judgment, the High Court dismissed the said writ petition. Being aggrieved thereby, the present appeal by way of special leave.

Reasoning: 14. Perusal of sub-rule (1) of Rule 3 of the said Rules would reveal that 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 is required to give requisite information within thirty days of formation of a party. The said information includes a statement in writing containing the names of members of such party together with other relevant particulars regarding such members as prescribed in Form I, and the names and designations of the members of such party who have been authorised by it for communicating with the Commissioner or, as the case may be, the Collector. The leader is also required to supply a copy of the rules and regulations (whether known as such or a constitution or/by any other name), of the municipal party, Zilla Parishad party or the Panchayat Samiti party concerned, as the case may be. Where such party has any separate set of rules and regulations (whether known as such or as constitution or/by any other name), a copy of such rules and regulations is also required to be submitted.15. Sub-rule (4) of Rule 3 of the said Rules provides that whenever any change takes place in the information furnished by the leader of a municipal party or a Zilla Parishad party, in relation to a Councillor or by the leader of a Panchayat Samiti party in relation to a member under sub-rule (1) or by a member under sub-rule (2), the information with respect to such change has to be communicated in writing to the Commissioner or, as the case may be, Collector.18. It could thus be seen that the very appointment of the appellant as Gatneta (Party Leader) is on the basis of the resolution of the meeting chaired by the President of the Ahmednagar District INC Party. The decision to remove the appellant from the post of Gatneta/Party Leader of the INCPS Party and to appoint respondent No.3 as Gatneta/Party Leader is also taken in a meeting which was presided over by the President of Ahmednagar District INC Party.19. It is pertinent to note that in the meeting dated 1.3.2017 itself, the authority to take steps with regard to change of leader was given to the President of the District INC Party. The appellant therefore cannot be heard to make grievance with regard to the procedure which was followed while removing her inasmuch as the entry of the appellant as Gatneta/Party Leader is by following the very same procedure.20. The so-called reference to rules and regulations under Rule 3(1)(b) of the said Rules cannot be stretched to be on par with the rules and regulations framed on the basis of any statutory power. The said rules are not happily worded. It appears from the record that the appellant has been the sole draftsman of the so-called rules and regulations referable to Rule 3(1)(b) of the said Rules. The source to submit the said Rules is on the basis of the resolution of the first INCPS Party meeting held on 1.3.2017. The resolution also contains that in the event of change of Party Leader, the President of Ahmednagar District INC Party will have the sole power and was also authorised to take steps in that regard. The appellant conveniently framed the rules giving effect to some part of the resolution while ignoring other part thereof. We are therefore of the view that the so-called reliance placed on the said Rules would not be of any assistance to the case of the appellant.21. It will be relevant to refer to the following observations of this Court in the case of Sunil Haribhau Kale v. Avinash Gulabrao Mardikar and others (2015) 11 SCC 403 10. The definition of the term leader very clearly shows that where a munici- pal party is an aghadi, its leader has to be chosen by the aghadi or front. Neces- sarily, any change in the leader of the municipal party is to be effected by the aghadi and not by any outsider. Once the Rules provide for the election of the Group Leader, it has to be done in that manner only and not in any other manner, even when there is change of the leader. The change of leader has to be in the same democratic process of in- duction, in the absence of any other method prescribed under the Rules con- cerned.11. Once an aghadi (group) is formed and duly recognised by the Divisional Commis- sioner, it becomes a municipal party in terms of Section 2(i) of the Act. Once origi- nal political parties form a municipal party by way of an aghadi, for all purposes, the Group Leader is chosen by the municipal party (aghadi) only. The Rules do not pro- vide for nomination of Group Leader. Similarly, the Group Leader of the aghadi can be changed only by the group and not by one of the political parties, big or small, belonging to the aghadi. In a democracy, a leader is not imposed; leader is elected. Once the birth of a leader in a group is by way of election by the group, the Group Leader thus elected cannot be replaced other- wise than through the very same process of the election in the group, in the ab- sence of any rules to the contra. No doubt, Nationalist Congress Party has 17 members in the aghadi (group). That does not mean that the said party can impose a Group Leader in the aghadi. Imposition of a Group Leader otherwise than by the demo- cratic process cuts at the roots of the democracy and certainly it is in violation of the Rules. It is always open to the original political parties to have their respective leaders in the aghadi. However, as far as Group Leader is concerned, he has to be elected by the aghadi (group).22. It could thus be seen that this Court has clearly held that the leader of a municipal party has to be chosen by aghadi or front and not by any outsider. It has been held by this Court that the change of leader has to be in the same democratic process of induction, in the absence of any other method prescribed under the Rules concerned. It has further been held that once the birth of a leader in a group is by way of election by the group, the Group Leader thus elected cannot be replaced otherwise than through the very same process of the election in the group, in the absence of any rules to the contra. It has been clearly held that imposition of a Group Leader otherwise than by the democratic process cuts at the roots of the democracy and certainly it is in violation of the Rules.23. Though it is sought to be urged by Shri Shekhar Naphade, learned Senior Counsel that the appellant has been removed and respondent No.3 has been appointed as Group Leader by an outsider i.e. the President of Ahmednagar District INC Party,we are unable to accept the said contention. The election of the appellant as Group Leader was under the resolution in the meeting attended by all the four elected members and the said meeting was only chaired by the President of the Ahmednagar District INC Party. Similarly, the removal of the appellant and appointment of respondent No.3 is by INCPS Party, however, consisting of three members since the appellant had chosen the different path.24. Somewhat similar observations have been made by this Court in the case of Bhanumati and others v. State of Uttar Pradesh and others (2010) 12 SCC 1 albeit with regard to the provisions of no confidence motion, which are as under:58. These institutions must run on demo- cratic principles. In democracy all persons heading public bodies can continue pro- vided they enjoy the confidence of the per- sons who comprise such bodies. This is the essence of democratic republicanism…..25. In the case of Usha Bharti v. State of Uttar Pradesh and others (2014) 7 SCC 663 , a challenge was made with regard to the validity of Section 28 of the U.P. Kshettra Panchayat mand Zilla Panchayats Act, 1961, which made a provision for no confidence against Chairperson of Zilla Panchayat to be not consistent with Part IX and, in particular, Article 243N of the Constitution of India. Negating the said contention/challenge, this Court in Usha Bharti (supra) observed thus:31. We also do not find any merit in the submission of Mr Bhushan that permitting the provision contained in Section 28 of the Act to remain on the statute book would enable the executive to deprive the elected representatives of their fundamental rights enshrined in Part III and Part IX of the Constitution of India. In our opinion, the ratio of the judgment in I.R. Coelho [(2007) 2 SCC 1]  relied upon by Mr Bhushan is wholly inapplicable in the facts and cir- cumstances of this case. There is no inter- ference whatsoever in the right of the elec- torate to choose. Rather Section 28 en- sures that an elected representative can only stay in power so long as such per- son enjoys the support of the majority of the elected members of the Zila Pan- chayat. In the present case, at the time of election, the petitioner was the cho- sen one, but, at the time when the mo- tion of no-confidence in the petitioner was passed, she was not wanted. There- fore, the right to choose of the elec- torate, is very much alive as a conse- quence of the provision contained in Section 28.26. This Court upheld the provisions of Section 28 which ensured that an elected representative can only stay in power so long as such person enjoys the support of the majority of the elected members of the Zila Panchayat. As soon as such a person loses the confidence of the majority, he becomes unwanted. In a democratic set up, the will of the majority has to prevail.27. The appellant was elected as Gatneta when she enjoyed the support of all the members of INCPS Party. However, after she decided to walk on a different path, she lost the support of majority of the INCPS Party and as such, could not have thrust her leadership on the majority. No doubt, that the said Act and the said Rules are in tune with the provisions contained in the Tenth Schedule of the Constitution of India, so as to prevent horse-trading and maintain purity in the political system but, at the same time, the provisions cannot be interpreted in a manner that one person in minority will thrust himself/herself upon the other members who are in absolute majority.28. We are amazed to hear the argument of horse- trading from the mouth of the appellant. It is the appellant who has acted contrary to the wishes of the Party and chose to contest the election of the Chairman of the Panchayat Samiti with the support of the rival group. It is for anybody to guess as to who has indulged in horse-trading.