JUDGMENT V.R. Kingaonkar, J.
Page 0178
1. This petition arises out of an order dated 1.2.2006 rendered by Collector, Jalna, holding that the petitioner herein is disqualified as member of Zilla Parishad, Aurangabad. The disqualification is said to have been incurred by the petitioner Under Section 3(2) of the Maharashtra Local Authority Members' Disqualification Act, 1986 (for short, M.L.A.M.D. Act).
2. The petitioner was elected as councillor of Zilla Parishad, Aurangabad from Andhaner Constituency of Kannad Taluka. He was fielded by Shivsana, as an official candidate of the political party, when he was so elected to work as a Zilla Parishad councillor, in February 2002. He continued to represent the Constituency in the house of Zilla Parishad as a councillor of Shivsena party. In September 2004, he contested election of the Maharashtra Legislative Assembly from Kannad Constituency as an "Independent Candidate". He was defeated in the said election of the Legislative Assembly. Thereafter, the Respondent No. 5 made reference Petition seeking declaration that the petitioner had incurred disqualification Under Section 3(1)(a) of the M.L.A.M.D. Act. The Respondent NO. 5 averred that when the petitioner had contested election for the Legislative Assembly as an independent candidate then he had voluntarily given up his membership of the Zilla Parishad party i.e. Shivsena political party. The Respondent No. 5 further averred that the petitioner had given interview to the Press Conference on 17.9.2004 and declared therein that he had voluntarily given up the membership of the Shivsena party. The petitioner by his statement in the Press Conference as well as by his conduct of contesting the election for Legislative Assembly, voluntarily gave up membership of the Shivsena party and thus the Zilla Parishad party as such, incurred disqualification. Page 0179 The Respondent No. 5 filed xerox copies of the three newspapers dated 18.9.2004 in which a news item was published regarding statement of the petitioner of his resignation of membership of Shivsena party. The Respondent No. 5 alleged that he is leader of Shivsena party in Aurangabad and as such was competent to make the reference. The reference was duly registered as required under Rule 6 of the M.L.A.M.D. Rules. A copy of the reference petition alongwith the copies of the news items were served on the petitioner. The petitioner was called upon to submit his reply to the reference petition. The petitioner admitted that he had contested election of the Legislative Assembly in September 2004 as an independent candidate from "Kannad Constituency" and was defeated. He denied, however, that he had voluntarily given up membership of Shivsena party in the Zilla Parishad. He questioned authority of the Respondent No. 5 to make a reference under the M.L.A.M.D. Act. He submitted that Shivsena political party was not registered as Zilla Parishad party or a political party with the Collector and due to non-registration thereof he could not be regarded as councillor of Shivsena political party and hence, did not incur any disqualification to remain as member of the House in Zilla Parishad. He further submitted that the Respondent No. 5 is not a party leader of Shivsena in Zilla Parishad and hence was incompetent to file the reference petition. He further submitted that he had not made any statement, whatsoever, in any Press Conference dt.17.9.2004 to the effect that he had voluntarily given up membership of Shivsena party in Zilla Parishad. He further filed a separate application and urged the Collector to frame preliminary issues regarding maintainability of the reference petition. He submitted that there was non-compliance of Rule 6 and 7 of the M.L.A.M.D. Rules. He sought dismissal of the reference petition on merits. The Collector, Aurangabad held that the application for framing of preliminary issues could be decided alongwith the main petition. The petitioner challenged the procedure adopted by the Collector, Aurangabad. The inquiry into the reference petition was, however, transferred to the Collector, Jalna in accordance with the statement made before this Court by the learned Additional Government Pleader. The said earlier writ petition No. 2428/2005 was disposed of by the Division Bench of this Court. The Collector, Jalna, issued afresh notices to the parties. The Collector heard the concerned parties and reached conclusion that the petitioner did incur disqualification Under Section 3(1)(a) of the M.L.A.M.D. Act. This order of the Collector, Jalna, is subject matter of challenge in the present writ petition.
3. Heard learned Counsel for the parties.
4. Mr. R.N. Dhorde, learned Counsel appearing for the petitioner would submit that the impugned order is perverse and wrong. He would submit that the petitioner could have lawfully contested the Legislative Assembly election as an independent candidate because there is no prohibition under the M.L.A.M.D. Act to do so. He further contended that "Zilla Parishad Party" and the "Political Party" and the "Shivsena Political Party" are two different concepts which are not properly appreciated by the Collector. He contended that strict compliance of Rules 6 and 7 of the M.L.A.M.D. Rules was not Page 0180 made. He would submit that the Collector failed to conduct preliminary inquiry as contemplated under Rule 7. He would further submit that the preliminary issues were not raised and the application, which was supposed to be decided alongwith the main reference petition was not considered at all. He submitted that the impugned order reflects total non-application of mind by the Collector. He contended that xerox copies of newspaper report could not have been read in evidence by the Collector. Hence, he urged to quash the impugned order. Per contra, learned Counsel for the Respondent No. 5, Mr. A.M. Karad, supported the impugned order. The learned Counsel and learned A.G.P., for the Respondents, would submit that very fact that the petitioner had contested Legislative Assembly election as an independent candidate is sufficient to infer that he had voluntarily given up membership of the Shivsena political party and thus the Zilla Parishad party. The learned Counsel for the Respondents would submit that there was no substantial reason to hold a detail inquiry when the petitioner, unequivocally, admitted that he was elected as councillor of the Zilla Parishad as candidate of Shivsena party and was working as councillor in the Zilla Parishad House, when in September 2004, he had contested the Legislative Assembly elections from Kannad Constituency as an independent candidate. They contended that in the given situation the disqualification ought to automatically follow and no much mincing of words was necessary during the inquiry made by the Collector.
5. Before I proceed to consider the rival submissions, it would be useful to consider the relevant provisions contained in M.L.A.M.D. Act, 1986 and the Rules framed thereunder. The material provision for the present purpose is Section 3(1)(a) of the said Act. It reads as follows:
Section 3. (1) Subject to the provisions of Sections 4 and 5, a councillor or a member belonging to any political party or aghadi or front shall be disqualified for being a councilqlor or a member-
3(1)(a) if he has voluntarily given up his membership of such political party or aghadi or front.
3(1)(b) xxxxx The definition of expression "Zilla Parishad party" as provided Under Section 2(p) is thus:
2(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.
This has correlation with the explanation appended below Section 3(1). The explanation reads as follows:
Explanation -For the purposes of this section-
(a) a person elected as a councillor, or as the case may be, a member shall be deemed to belong to the political party or aghadi or front, if any, by which he was set up as candidate for election as such councillor or member.
6. A bare perusal of the aforesaid provisions would make it manifest that where there is no aghadi or front comprising of different political party Page 0181 members or independents, as the case may, the membership of the political party by which a candidate was set up for election as a councillor is the same for his Zilla Parishad party. In other words, his membership of the political party and Zilla Parishad party would be on the same foundation because of his being a member of that political party, where there is no aghadi or front. In case of a coalition the original political party of a member may be different from his membership of the coalition party in the House. So far as the present case is concerned, there was no front or aghadi in the Zilla Parishad House at Aurangabad. Needless to say, the petitioner belonged to Shivsena party which was his Zilla Parishad party too for the purpose of membership in the House of Zilla Parishad. It necessarily follows that if by his express or implied act he had voluntarily given up membership of Shivsena political party then he became ineligible to continue the representation of his constituency. For, the voters of the constituency had elected him because of his candidature as a member of Shivsena party. He was backed up by the Shivsena political party in the Zilla Parishad elections of 2002 and, therefore, he could not have betrayed the said political party without incurring the disqualification.
7. Mr. Dhorde, learned Counsel heavily relied on Sadashiv H. Patil v. Vithal D.Teke and Ors. 2001 [1] Maharashtra Law Journal 312. The Apex Court held in the given case that a rigorous compliance with the provisions of the M.L.A.M.D. Act and the Rules must be shown to have taken place while dealing with a reference Under Section 7 of the said Act. That was a case which fell Under Section 3(1)(b) of the said Act. The penalty of disqualification on account of disobedience to the whip or directions of the political party in the House is covered by Section 3(1)(b). So, if a councillor or member votes or abstains from voting in any meeting of the Zilla Parishad, contrary to any direction issued by the political party then question of such disqualification may arise for consideration. In such a case the specific averments regarding non-compliance of the directions or whip, service of the whip on the member and other requirements under the Rules are supposed to be duly established. The Apex Court held that a finding as to disqualification has the effect of unseating a person from an elected office held by him pursuant to his victory at the polls in accordance with the democratic procedure of constituting a local authority. The Apex Court observed:
The consequences befall not only him as an individual but also the constituency represented by him which would cease to be 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 functions 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.
8. Mr. Dhorde, also heavily relies on Hariharrao Vishwanathrao Bhosikar v Datta Anandrao Pawar and Ors. 2005 [4] Maharashtra law Journal 211. Page 0182 A single Bench of this Court held that the petition to seek disqualification must be filed in the manner prescribed. The learned Single Bench held that it was duty of the Collector to determine the question of maintainability of petition in view of Sub-rule (4) of Rule 7 of the M.L.A.M.D. Rules, on making preliminary inquiry. The learned Single Judge further held that non-withdrawal of nomination in relation to the Legislative Assembly election could not be considered as disqualification of such member within the parameters of the said Act and Rules. That was a case in which the reference was made by a person who was not a member of the Zilla Parishad and hence the learned Single Judge came to the conclusion that such reference was not maintainable. In the given case the disqualification sought against the petitioners was on account of their failure to withdraw the nominations as per directions of the District Head of the Party Unit. The learned Single Judge held that such direction could not be called as "whip" or "direction" within the meaning of M.L.A.M.D. Act and that is why the non-compliance thereof could not have incurred any disqualification. The facts of the present case are on different footing. Here is a case in which the petitioner is alleged to have incurred the disqualification on account of his voluntarily giving up membership of Shivsena party. Therefore, this is not a case in which the disqualification is said to have been incurred due to non-compliance made by the petitioner in relation to any "whip" or "direction" so as to entail disqualification within the meaning of Section 3(1)(b).
9. Mr. Dhorde, further seeks to rely on Parshuram Prabhakar Uparkar v. Tukaram Bhagwan Barde and Ors. 2006 (5) Maharashtra Law Journal 598. A Division Bench of this Court, held that the expression "a group" representing a faction which has arisen out of the result of a split in "original party" does not mean a group of the original party on national level. The Division Bench held that the expression "original party" will necessarily mean "Zilla Parishad party" in the house of Zilla Parishad or its Council as the case may be. It is difficult to see as to how this authority which deals with interpretation of Section 4(1) of the M.L.A.M.D. Act is of any help to the present cause of the petition. There is no difficulty in holding that the expression "original party" will necessarily mean "Zilla Parishad party" in relation to the House of Zilla Parishad. That is why the petitioner stands in more precarious position. For, when he has indicated his inclination to give up the membership of Shivsena party at the time of contesting the Legislative Assembly election then it has to be gathered that he gave up membership of the Zilla Parishad party because he was member of Shivsena which is his original party. Mr. Dhorde, further seeks to rely on Laxmi Raj Shetty and Anr. v. State of Tamil Nadu . The Apex Court held that facts stated in the newspaper cannot be admitted in evidence. It is held that such a news item being in the nature of hearsay secondary evidence, it would not be admissible unless proved by evidence aliunde. This authority is sought to be relied upon in order to substantiate Page 0183 the contention that the petitioner had denied holding of a Press Conference on 17.9.2004. Mr. Dhorde, learned Counsel appearing for the petitioner, pointed out from the reference petition that names of the newspaper reporters were not stated therein at the initial stage. He further invited my attention to copy of letter (Exh.C - 1) dt.27.12.2004 issued by the Chief Executive Officer, Zilla Parishad, Aurangabad. The Chief Executive Officer had informed the Collector that the petitioner had not tendered his resignation Under Section 38 of the Maharashtra Zilla Parishad and Panchayat Samitis Act, 1961, of his membership as councillor of the Zilla Parishad. This communication is also of no much help to the petitioner. The resignation of the office as a member is different from his giving up of membership of the political party. For giving up membership of Shivsena party, the petitioner was not required to follow the procedure laid down Under Section 38 of the Maharashtra Zilla Parishad and Panchayat Samitis Act, 1961. The communication relied upon by the petitioner in this behalf is, therefore, of no much assistance to him. Faced with this difficulty, learned Counsel Mr. Dhorde, pointed out that the Collector, Jalna did not record adequate reasons in support of the impugned order. The learned Counsel Mr. Dhorde, would rely on The Siemens Engineering and Manufacturing Co. of India Ltd. v. The Union of India and Anr. in support of his proposition that order of quasi-judicial authority must be supported by reasons.
The Apex Court observed:
It is now well settled that where an authority makes an order in exercise of a quasi-judicial function, it must record its reasons in support of the order it makes. Every quasi-judicial order must be supported by reasons.
The Apex Court further held that such requirement is one of the basic principle of natural justice.
10. There cannot be duality of opinion that a quasi-judicial process has to be followed in keeping with principles of natural justice. The impugned order reveals that the Collector, Jalna failed to record adequate reasons in support of the impugned order. It appears that the only reason recorded by the Collector, Jalna is that the reports in the newspaper cuttings/clippings were justified by act of the petitioner in contesting election as an independent candidate against the official candidate of the same party on whose symbol he was elected as Zilla Parishad member. The Collector concluded therefore, that the petitioner had voluntarily left the membership of the political party.
11. The reasoning part of the impugned order may be extracted as below:
Further the argument that notices were not signed by Collector has no meaning, once the equal opportunity is being given to both the parties and case is being decided on its merits. In the citing of respondent most of them are for arguing that the newspaper cutting can not be taken as an evidence but against this also petitioner cited ruling 1999 (7) SSC 435 which says news item can be treated as proof as per Evidence Act.
Page 0184 After going through all these points I came to conclusion that the petitioner has clearly proved his point. The case decided is not based on the newspaper cutting or declaration in press conference only, but these cutting and declaration are further justified by contesting an election as independent candidate against the official candidate of the same party on whose symbol respondent was elected as Zilla Parishad Member. The ruling of Hon. Supreme Court vide AIR SC weekly 2004, 6278 clarified the above point. Finally this is concluded that respondent No. l has left the membership of political party voluntarily.
12. The impugned order reveals that the Collector, Jalna failed to appreciate basic legal principles in regard to requirement of "speaking order" which is part and parcel of the administrative and quasi-judicial functions of his post. I am at pains to note that the Collector, Jalna (Mr. Ranjit Singh Deol) has no proper understanding of the responsibility with which a quasi-judicial function is required to be discharged in such sensitive matters. How I wish, appropriate and effective training to quasi judicial functionaries needs to be imparted for better writing of quasi-judicial orders in keeping with the principles of natural justice. Still, however, I am not inclined to interfere with the impugned judgment inasmuch as the admitted factual position is that the petitioner had contested the Legislative Assembly election as an independent candidate in September 2004, while he was still a member of Shivsena political party in the Zilla Parishad House at Aurangabad and moreover, very soon the question of disqualification may become only academic because the elections of Zilla Parishad, Aurangabad, have been declared. It will be futile exercise, therefore, to remit the matter to the Collector, Jalna for afresh decision only due to certain lapses committed by him.
13. True, mere newspaper reports cannot be read in evidence. It appears, however, that the identities of the newspaper reporters were lateron located and they were examined during course of the inquiry. They supported the newspaper reports. Their versions go to show that petitioner had expressed his mind to give up his membership of Shivsena party in the Zilla Parishad when he was denied opportunity to contest the Legislative Assembly election from Kannad Constituency as an official candidate of the said party. It appears that he has made a statement to the effect that he had decided to contest the said election as an independent candidate and was inclined to give up membership of Shivsena party in the Zilla Parishad. The newspaper reports by themselves may not be treated as legal evidence. The versions of the scribe of such reports are, nodoubt, admissible in evidence and could be looked into by the Collector.
The petitioner had produced a letter communication in order to prove that the place of the Press Conference, namely, "Wani Mangal Karyalaya" was not in use at the relevant time. The letter communication reveals that "Wani Mangal Karyalaya" was then yet to be inaugurated. A formal inauguration may not have been done but the building was ready for use and could be so used for calling a few newspaper reporters to hold a small Press Conference. In the teeth of the statements of the independent media reporters, bare denial of the petitioner is of no much significance. His version is that of an interested party. The denial of the petitioner appears to be due to his convenience.
Page 0185
14. Learned Counsel for the Respondents rely on Bhila Gotu Sonwane and Ors. v. The State of Maharashtra and Ors. 2002 Marathwada Cases Reporter 161. A Single Bench of this Court held that voluntarily giving up membership of the political party by itself entails a disqualification Under Section 3 of the M.L.A.M.D. Act. The learned Single Judge held that provisions of Section 3 of the said Act are substantially in pari materia with paragraph 2 of the Tenth Schedule of the Constitution of India. So it was held that when the Zilla Parishad member evidently gave up the membership of his political party then it follows ipso facto that he would incur disqualification Under Section 3. Further, learned Counsel for the Respondents would rely on Dr. Mahachandra Prasad Singh v. Chairman, Bihar Legislative Council and Ors. 2004 AIR SCW 6278. In the given case, it is laid down that in the absence of a formal resignation from membership, an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs. In the said case, the scope of inquiry in such matters is set out. The relevant observations may be usefully quoted as follows:
15. It may be noticed that the nature and degree of inquiry required to be conducted for various contingencies contemplated by paragraph 2 of Tenth Schedule may be different. So far as Clause (a) of paragraph 2 (1) is concerned, the inquiry would be a limited one, namely as to whether a member of the house belonging to any political party has voluntarily given up his membership of such political party. The inquiry required for the purpose of Clause (b) of paragraph 2(1) may, at times, be more elaborate. For attracting Clause (b) it is necessary that the member of the House (i) either votes or abstains from voting (ii) contrary to any direction issued by the political party to which he belongs or by any person or authority authorized by it in this behalf, (iii) without obtaining the prior permission of such political party, person or authority; and (iv) such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention. Therefore, for the purpose of Clause (b), inquiry into several factual aspects has to be conducted. It may be noticed that Clause (b) does not say that the prior permission has to be in writing and, therefore, it can be oral as well.
15. As mentioned hereinbefore, provisions of Section 3 of the M.L.A.M.D.Act are in pari materia with paragraph 2 of the Tenth Schedule of the Constitution of India. Therefore, likewise Clause (a) of paragraph 2(1) the inquiry in relation to Sub-clause (a) of Section 3 of the M.L.A.M.D. Act would be a limited one. It will be necessary only to ascertain as to whether a member of the House belonging to any political party has voluntarily given up his membership of such political party. In case of Ravi S. Naik v. Union of India and Ors. , the Apex Court held that the expression "voluntarily given up his membership" is not synonymous with resignation. It is held that even in the absence of formal resignation from membership an inference can be drawn from the conduct Page 0186 of a member that he has voluntarily given up his membership of the political party to which he belongs. The conduct of the petitioner, in contesting Legislative Assembly election as an independent candidate is surely indicative of his state of mind. By his conduct, he impliedly declared that he had given membership of the Shivsena party. In case of Dr. Mahachandra Prasad Singh v. Chairman, Bihar Legislative Council and Ors. (supra) though, Dr. Mahachandra Prasad was elected to Legislative Council on ticket of Indian National Congress, yet had contested the Parliamentary election as an independent candidate. The Apex Court held that he thereby incurred disqualification within the meaning of paragraph 2(1)(a) of the Tenth Schedule of the Constitution of India. The Apex Court held further that non-supply of the copy of the letter of leader of Congress party to him would be of no consequence. The Apex Court further held that the procedure contemplated in Sub-rule (1) of Rule 6 pertaining to verification of the reference petition is of directory nature. It is held:
The Rules 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.
The procedural drawbacks pointed out by the learned Counsel for the petitioner cannot, therefore, make the impugned order unsustainable. It is true that the Collector, Jalna (Mr. Ranjit Singh Deol) failed to decide the application for framing of the preliminary issues. He further failed to conduct a preliminary inquiry. He did not specify the grounds in the form of Article of Charges and serve them on the petitioner. He didnot raise material points required for proper decision making process. The Collector, Jalna, only narrated the facts, reproduced arguments of the counsel for the parties and lastly in a single paragraph concluded that the petitioner had left membership of the political party i.e. Shivsena. The reasoning part of the impugned order is cryptic, improper and most dissatisfactory. It is expected that quasi-judicial authorities should avoid writing of such orders in respect of the reasoning part, since recording of reasons is the only way to indicate application of quasi judicial mind the controversial issues. As said earlier, it would be time consuming exercise to remand the matter and hence I have considered the material on record and have gone through the evidence recorded during the inquiry. The ultimate conclusion drawn by the Collector is quiet sustainable though the impugned order reflects deficiencies in the decision making process as such.
16. In case of Dattatraya Maruti Bawalekar and Ors. v. Pandurang Dagadu Parte and Ors. , the appellants had contested the election for members of Municipal Council as independent candidates and were elected as such. Thereafter, they formed an aghadi/front. Their names were published in the Official Gazette as members of the Page 0187 Aghadi. Lateron they were disqualified. The Apex Court held that immediately on the election, the appellants became subject to the discipline of the party or front on becoming members thereof and could not have flouted the direction of the leader of the Aghadi.
17. The very purpose of the anti defection laws is to ensure that the voters of the Constituency, which the elected member represents, shall not be duped by him. They cannot be taken for a ride due to change of the affiliation by such a member to another political party or due to giving up of his membership of the original political party. Considered from this angle, it will have to be said that the petitioner failed to keep his association and loyalty with the voters who had elected him from the Zilla Parishad Constituency, on account of his conduct of contesting the Legislative Assembly election as an independent candidate. Hence, the ultimate finding of the Collector, Jalna will have to be upheld. There is no merit in the petition.
18. In the result, the petition is dismissed with no order as to costs.