Bombay High Court

Sahebrao vs The Collector on 29 October, 2010

Bench: R. M. Borde

                                      1




                                                                        
          IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                        BENCH AT AURANGABAD




                                                
                   WRIT PETITION NO. 8272 OF 2010




                                               
     1.     Sahebrao S/o Narayan Kharat,
            Age : 54 Years, Occu. : Business,
            R/o Maligalli, Ambad,
            Tq. Ambad, Dist. Jalna.




                                   
     2.
                      
            Bagwan Tamijabee Shaikh Ahmed,
            Age : 58 Years, Occu. : Household,
            R/o Bagwan Mohalla, Ambad,
                     
            Tq. Ambad, Dist. Jalna.

     3.     Shaikh Khurshid Ahemad Gulam Jilani,
      


            Age : 44 Years, Occu. : Business,
            R/o Ambad, Tq. Ambad,
   



            District Jalna.                   .. ..    Petitioners

                  Versus





     1.     The Collector, Jalna, Acting as
            Authority under the Maharashtra
            Local Authority Members





            Disqualification Act.

     2.     Suresh S/o Ramchandra Gude,
            Age : Major, Occu. : Business,
            R/o Babulal Gude Nagar, Ambad,
            Tq. Ambad, Dist. Jalna.




                                                ::: Downloaded on - 09/06/2013 16:35:51 :::
                                           2




                                                                            
     3.    Kailas S/o Kadajirao Bhore,
           Age : Major, Occu. : Business,




                                                   
           R/o Yeshwanti Colony, Ambad,
           Tq. Ambad, Dist. Jalna.




                                                  
     4.    Municipal Council, Ambad,
           Through Chief Officer,
           Municipal Council, Ambad,
           Tq. Ambad, Dist. Jalna.




                                      
     5.
                       
           Presiding Officer/Chief Officer,
           Municipal Council, Ambad,
           Tq. Ambad, Dist. Jalna.                  ..       ..    Respondents
                      
     Shri S. B. Deshpande and Shri S. B. Joshi, Advocate for 
     Petitioners.
      

     Shri K. J. Ghute Patil, A.G.P. for the Respondent No. 1.
     Shri V. S. Salunke and Shri S. S. Tope, Advocate for Respondent 
   



     Nos. 2 and 3.
     Shri S. S. Patunkar, Advocate for the Respondent No. 4.





                        CORAM : R. M. BORDE, J.


     Date on which the judgment reserved                     :        06/10/2010.
     Date on which the judgment pronounced :                          29/10/2010.





     JUDGMENT :

. Rule. Rule returnable forthwith. Heard by consent of

learned counsel for the parties at the stage of admission.

02. The petitioners who are the members of Municipal Council,

Ambad, are raising exception to the order passed by the District

Collector, Jalna, holding them disqualified to continue as the

members of Municipal Council, in view of the provisions of the

Maharashtra Local Authorities Members Disqualification Act

1987 (hereinafter referred to as the "Disqualification Act").

03.

The general elections of the municipal council were held in

the year 2006. The petitioners herein are the elected member of

municipal council belonging to Nationalist Congress Party.

Initially the President of the Municipal Council, Ambad, was

elected for a period of two and half years. The said period came

to an end in the year 2009 and the election for remaining term of

the Presidentship was held on 20.06.2009. At the elections, one

Mrs. Sulbha Kulkarni belonging to Congress Party as well as the

petitioner No. 3 were elected as President and Vice President

respectively. The respondent Nos. 2 and 3, who are also members

of the municipal council belonging to Nationalist Congress Party

presented a petition as contemplated U/Sections 3 of the

"Disqualification Act" read with Rule 6 of the Members

Disqualification Rules to the Collector, Jalna. It is contended by

the petitioners that, the petitioners have voted contrary to the

whip issued by the group leader as well as the District President

of the Nationalist Congress Party and as such, have incurred

disqualification within meaning of provisions of the

"Disqualification Act". It is stated in the petition that Mr.

Ankushrao Tope is the District President of the Nationalist

Congress Party. There are ten members belonging to Nationalist

Congress Party elected as the members of municipal council. All

the elected member of municipal council including the petitioners

herein are the members of municipal party formed and

registered in accordance with provisions of Act and rules. The

Nationalist Congress Party had declared the candidature of one

Smt. Jayshree Sodani and Sahebrao Narayan Kharat, the

petitioners herein for the post of President and Vice President

respectively. The respondent No. 2 being the group leader of the

municipal party was authorized to issue whip mandating the

members of the municipal party to vote at the elections in favour

of the party nominee. The whip was accepted by seven members,

however, as the petitioners herein were not found at their

respective houses and the family members of the petitioners

refused to accept the whip, the same was affixed on the front

door of the respective houses of the petitioners and panchanama

was recorded on 14.06.2009. It is also further contended that,

with a view to make the petitioners aware of the directives of the

party, the whip was also published in the daily news paper Sakal

on 20.06.2009. It is further contended in the petition that prior

to commencement of the meeting for election of President and

Vice President of the municipal council, the group leader,

respondent No. 2 herein tried to serve the whip on the

petitioners, however, they refused to accept and further stated

that they are not bound to obey the whip. This incident is stated

to have been video graphed. In the elections held for electing the

President and Vice President of the municipal council,

petitioners have voted contrary to the directives of the party and

disobeyed the whip, as a result of which the nominee of the

Nationalist Congress Party at the election has suffered defeat. It

is further stated in the petition that the lapse on the part of the

petitioners has not been condoned by the party and as such, they

have incurred disqualification within meaning of provisions of

the "Disqualification Act".

04. The petitioners herein, while opposing the application

tendered by the respondents herein to the Collector, have

disputed the status of Shri Ankushrao Tope as the District

President of the Nationalist Congress Party and respondent

No. 2-Suresh Ramchandra Gude as the group leader of the

Ambad Municipal Council party. It is contended that

respondent No. 2 is not elected as a group leader in accordance

with the provisions of Constitution of party and as such, he had

no authority to issue whip. The contention that the petitioners

have refused to accept the whip have been controverted by them.

It is contended that petitioner No. 1 had tendered his nomination

paper for the post of Vice President during the same period,

however, it is alleged by the applicants before the

Collector/respondents herein that, they were unavailable in

Ambad town at relavent time. Petitioner No. 1 was the nominee

for the post of Vice President on behalf of Nationalist Congress

Party and he tendered his nomination paper during the process

of election. In such circumstances, it would be difficult to digest

the contention that he was unavailable in the town during the

election period. The other petitioners have also adopted similar

stand. The petitioners have claimed ignorance in respect of

candidature of Mrs. Jayshree Sodani as the nominee for the post

of President on behalf of Nationalist Congress Party. The

petitioners have also seriously disputed the panchanama drawn

as token of affixing the whip at the respective residences of the

petitioners. The petitioners thus contend that, there is no

material to substantiate the contentions raised in the application

tendered by the respondents with the Collector seeking

disqualification of the petitioners and the application is not

legally sustainable.

05. On consideration of the pleadings of the parties, the

Collector framed charges for consideration and the parties were

directed to lead evidence. There were four witnesses examined

on behalf of the applicants before the Collector (respondents

herein), whereas, petitioners herein examined six witnesses on

their behalf. On consideration of evidence led by the parties, the

learned Collector, after providing an opportunity of hearing to

the parties, came to the conclusion that the applicants have

substantiated their contentions and as such by impugned order

passed on 30th August, 2010, held the petitioners herein

disqualified to continue as members of the municipal council.

06. The petitioners have raised following objections to the order

passed by the Collector :

I. The order passed by the Collector is cryptic and does

not disclose any reason in support of the findings recorded

therein. It is contended that, the Collector while passing

order, which has serious consequence of rendering an

elected representative of the municipal council disqualified,

is obliged to record reasons in support of his decision.

However, the order passed by the Collector, does not

disclose any reason to support the conclusion drawn by him

in the judgment.

II.

It is contended that the applicants before the

Collector have neither proved that Mr. Tope is the District

President of Nationalist Congress Party or that Mr. Gude is

elected as group leader of the Nationalist Congress Party

and that he was authorized to issue a whip.

III. It is seriously disputed that the petitioners were

properly served with the alleged whip. There is no proper

finding recorded by the Collector in respect of service of

whip on the petitioners.

IV. There is no material placed on record to reach a

conclusion that Mrs. Sodani was the official candidate of

the Nationalist Congress Party and this fact was made

known to the petitioners and inspite of knowledge, they

have voted contrary to the party directives.

07. The learned counsel appearing for the respondents have

supported the order passed by the Collector and contended that

the Collector has passed a well reasoned order and there is

sufficient material placed on record to substantiate the

contentions raised by the applicants.

08. Certain provisions of the Disqualification Act and Rules,

which are necessary to be considered for determination of

controversy, are quoted as below :

THE MAHARASHTRA LOCAL AUTHORITY MEMBERS DISQUALIFICATION ACT, 1987

1. .............

2. In this act, unless the context otherwise requires,-

(a) "aghadi" or "front" means a group of persons who have

formed themselves into party for the purpose of setting up

candidates for election to a local authority;

     (b)    .......................
     (c)    .......................
     (d)    .......................
     (e)    .......................
     (f)    .......................
     (g)    .......................
     (h)    .......................
     (i)    "municipal party", in relation to the Councillor belonging to

any political party or aghadi or front in accordance with the

Explanation to Section 3 means-

(i) in the case of a councillor of a Municipal Corporation,

the group consisting of all the councillors of the Municipal

Corporation for the time being belonging to that political

party or aghadi or front in accordance with the said

Explanation.

(ii) in the case of a councillor of a Municipal Council, the

group consisting of all the councillors of the Municipal

Corporation for the time being belonging to that political

party or aghadi or front in accordance with the said

Explanation.

(j) "original political party", in relation to a councillor or a

member, means the political party to which he belongs for the

purposes of sub-section (1) of Section 3;

Sec. 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 councillor or a member-

(a) if he has voluntarily given up his membership of such political party or aghadi or front ; or

(b) if he votes or abstains from voting in any

meeting of the Municipal Corporation, Municipal Council, Zilla

Parishad or, as the case may be, Panchayat Samiti contrary to

any direction issued by the political party or aghadi or front to

which he belongs or by any person or authority authorized by any

of them in this behalf, without obtaining, in either case, the prior

permission of such political party or aghadi or front, person or

authority and such voting or abstention has not been condoned

by such political party or aghadi or front, person or authority

within fifteen days from the date of such voting or abstention:

Provided that, such voting or abstention without prior

permission from such party or aghadi or front, at election of any

office, authority or committee under any relevant municipal law

or the Maharashtra Zilla Parishads and Panchayat Samitis Act,

1961 shall not be condoned under this clause.

6. ....................

7. If any question arises as to whether-

(a) a councillor of a Municipal Corporation;

           (b)    a councillor of a Municipal Council; or

           (c)    a councillor of a Zilla Parishad; or

           (d)    a member of a Panchayat Samiti,

has become subject to disqualification under this Act, the

question shall be referred-

(i) in the case of a councillor of a Municipal Corporation

to the Commissioner, and

(ii) in the case of any other councillor or member, to the

Collector;

and the decision of the Commissioner, or as the case may be

Collector, shall be final.

THE MAHARASHTRA LOCAL AUTHORITY MEMBERS DISQUALIFICATION RULES, 1987

1. ...................

2. ...................

3. (1) The leader of each municipal party or a Zilla

Parishad in relation to a councillor and the leader of Panchayat

Samiti in relation to a member (other than a municipal party or

a Zilla Parishad party or a Panchayat Samiti party consisting of

only one member) shall, within thirty days from the date of

commencement of these rules or, where such party is formed

after such date, within thirty days from the date of its formation,

or in either case, within such further period as the

Commissioner, in the case of a councillor of the Municipal

Corporation, or the Collector, in the case of any other Councillor

or member may for sufficient reason allow, furnish the following

information to the Commissioner, or, as the case may be, to the

Collector, namely :-

(a) a statement in writing containing the name 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, Collector for the purposes of these rules:

(b) 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 of the Panchayat Samiti party

concerned, as the case may be; and

regulations (whether known as such or as constitution or/by any

other name) also a copy of such rules and regulations.

           3.     (2)    ...........

           3.     (3)    ...........










                                                                              
            3.     (4)    ...........

3. "(5) Where a councillor in relation to a municipal

party or a Zilla Parishad party and a member in relation to a

Panchayat Samiti party votes or abstains from voting in any of

the meetings of the Municipal Corporation, Municipal Council,

Zilla Parishad or, as the case may be, Panchayat Samiti

contrary to any direction issued by the political party or aghadi

or front to which he belongs or by any person or authority

authorised by it in this behalf, without obtaining in either case,

the prior permission of such party, person or authority, the

leader of such municipal party or Zilla Parishad party or as the

case may be, Panchayat Samiti party, or where such Councillor

or member is the leader or, as the case may be, the sole member

of such municipal party, Zilla Parishad party or Panchayat

Samiti party, such councillor or, as the case may be, member,

shall as soon as may be thereafter and in any case within thirty

days from the date of such voting or abstention, inform the

Commissioner or, as the case may be, the Collector in Form II

whether such voting or abstention has or has not been condoned

by such party, person or authority."

4. [(1) (a) Every Councillor in relation to a municipal

party or Zilla Parishad party and a member in relation to

a Panchayat Samiti party who is holding office as such on

the commence of the Act in the Municipal Corporation,

Municipal Council, Zilla Parishad or, as the case may be,

Panchayat Samiti shall furnish to the Collector within

thirty days from the date of commence of these rules or

within such further period as the Commissioner or, as the

case may be, the Collector may for sufficient reason allow

statement of particulars and declaration in Form III.

(b) Every Councillor in relation to a

municipal party or a Zilla Parishad party and a member

in relation to a Panchayat Samiti party after the commence

of the Act who is elected to the Municipal Corporation,

Municipal Council, Zilla Parishad or, as the case may be,

Panchayat Samiti before taking his seat, shall be furnished

to the Commissioner, or, as the case may be, the Collector

within thirty days from the date of the declaration of the

election results or within such further period as the

Commissioner or, as the case may be, the Collector may for

sufficient reasons allow a statement of particulars and

declaration in Form III.

09. In order to held a member of municipal council disqualified

on the ground of defection, it is required to be proved that :

(i) the said member of municipal council is a member

belonging to any political party or aghadi or front and that he

either votes or abstained from voting in the meeting of municipal

council contrary to the directions issued by the political party or

aghadi or front to which he belongs and that such voting or

abstention has not been condoned by the political party or aghadi

or front. What is required to be proved is that, there is a political

party or aghadi or front within the meaning of provisions of the

Disqualification Act.

(ii) the group leader of the political party or aghadi or front

who was authorized to issue a whip or directives, who issued the

whip and the same was served on the concerned member and

(iii) the concerned member or the member of municipal

council has voted contrary to the directives.

10. In the instant matter, petitioners have disputed status

of respondent No. 2 as a group leader of the municipal party.

Petitioners have also disputed status of Shri Ankushrao Tope, as

District President of Nationalist Congress Party. The

Constitution of the municipal party which is alleged to be

tendered to the Collector, defines party leader as "the member of

municipal council elected amongst the members belonging to

Nationalist Congress Party and approved by the President".

Clause 3 of the Constitution provides that, the group leader

would be elected from amongst the members of the municipal

council, belonging to Nationalist Congress Party in a meeting

convened by the District President. The group leader is

authorized to issue a whip in accordance with all the written

directions of the District President. It is contented by the

petitioners that, the respondent No. 2 was not elected as a group

leader in accordance with the Constitution, nor it has been

proved that Mr. Ankushrao Tope is the District President of the

Nationalist Congress Party.

11. In order to rebut the contentions raised by the petitioners,

there is evidence led by the respondents herein (the applicants

before the Collector). Shri Ankushrao Tope has examined himself

and stated before the Collector that he is District President of the

Nationalist Congress Party and in a meeting convened in

accordance with the provisions of the Constitution, the

respondent No. 2 herein is elected as a group leader. The

petitioners herein, however, have pointed out certain

discrepancies in the evidence of the witnesses and have

contended that the respondent No. 2 herein is not elected as a

group leader, but is appointed by Shri Ankushrao Tope. It is a

matter of appreciation of evidence, as to whether the respondent

No. 2 herein is elected as a group leader and his election as a

group leader was communicated to the Collector as contemplated

by Rules. There is also evidence placed on record to substantiate

that the Constitution of the municipal party was tendered to the

Collector and the Collector was also informed about the election

of the group leader as contemplated by Rules.

12. The another disputed question raised in the petition is in

respect of service of whip. It is contended by the petitioners that,

it is highly improbable to draw an inference that petitioner No. 1,

who had tendered his nomination paper for the post of Vice

President, can be stated to be away from Ambad during the

relevant period. The contentions raised by the applicants before

the Collector (respondents herein) that, the petitioners were

away from Ambad and were not available in Ambad town and the

family members of the concerned petitioners refused to accept

the whip, as such, it was affixed on the respective houses of the

concerned members/petitioners herein, is seriously disputed.

The panchanamas drawn in respect of affixing party

directives/whip at the respective houses of the petitioner,

according to them, is fabricated and not worth placing reliance.

On the contrary the respondents contend that, the petitioners

herein had made up their mind to disobey the party directives.

The petitioner No. 1, although, was a party nominee for the post

of Vice President, voted contrary to the directives of the party.

Even at the election of the Vice President, the act of indisciplined

on the part of the petitioner No. 1 is of such high degree that he

did not cast vote at the election of Vice President for himself,

although, he was a party nominee. It is contended that the whip

was also published apart from the alternate mode of service, in

the news paper Daily Sakal. It was tried to be served prior to the

commencement of the meeting, but petitioners refused to accept

the same. All these aspects go to show that the petitioners were

determined to disobey the party directives. The factum of the

petitioners having voted to a candidate belonging to Congress

Party at the election of President of Municipal Council has not

been disputed by them. What was required to be proved by the

applicants before the Collector (respondents herein) that, the

respondent No. 2 is the group leader and he issued directives as

per the instructions of the District President and that the

directives (whip) was properly served on the petitioners.

13. Now turning to the judgment delivered by the District

Collector, it appears that, the Collector has framed four points for

consideration :

(i) Whether there existed a municipal party in

accordance with the provisions of the "Disqualification Act" ?

(ii) Whether a whip was issued in respect of elections of President and Vice President in the meeting

convened on 20.06.2009 by the competent person ?

(iii) Whether the whip issued was served on the concerned members (petitioners herein) ?

(iv) Whether they have recorded evidence contrary to

the directives issued by the party and whether the said act has not been condoned by the political party or any

person authorized in that behalf within 30 days and whether such communication is issued in Form No. II to the Collector ?

So far as point No. 4 is concerned, there is no dispute that the

petitioners have cast their vote in favour of a member other than

party member and the said act has not been condoned by the

political party. There is also ample evidence in respect of

formation and registration of the municipal party. The only

thing that is disputable is in respect of the authority to issue

whip having been vested with the respondent No. 2 herein and

the factum of service of whip on the petitioners herein.

14. The learned Collector, in his judgment has recorded the

details of evidence of each of the witnesses and at the end of the

discussion, has reproduced the points framed for determination

and thereafter proceeded to record reasons. On perusal of

reasons recorded by the Collector, it does appear that, there is

absolutely no discussion of the evidence, nor the Collector has

recorded his reasoning in support of his findings on the relevant

issues. In the initial part of the judgment, the Collector proceeds

to record in verbatim the oral evidence tendered by the

witnesses. However, while recording findings on the issues, the

Collector has failed to substantiate the reasons to support the

findings recorded by him. What was expected of the Collector is

to discuss the evidence of both the parties and record his reasons

for accepting or rejecting the contentions of either of the parties.

He is also expected to make reference to the relevant

documentary evidence while recording findings on the issues.

The judgment delivered by the Collector and the findings

recorded by him are not supported by satisfactory reasons. The

petitioners as well as the respondents, while arguing the matter,

adverted to the evidence recorded by the Collector as well as

brought to my notice the documentary evidence placed before

him. However, in exercise of extraordinary jurisdiction under

Article 227 of the Constitution of India, it would not be

appropriate for this Court to appreciate the evidence and record

findings. It is in fact, responsibility of the Collector to appreciate

the evidence in detail and record his conclusion based on such

appreciation. The Collector is expected to weigh the evidence led

by both the parties, documentary as well as oral, and record his

findings, as regards acceptability of the evidence tendered by

either of the parties and base his conclusion on proper

appreciation of evidence. In the instant matter, I am of the view

that, Collector has not at all recorded proper reasons. The mere

recording details of the oral evidence recorded by him cannot be

equated with the appreciation of evidence for the purposes of

recording findings in the matter. The objection raised by the

petitioners, that the judgment delivered by the Collector does not

disclose any reasons to support the findings recorded by him, is

acceptable.

15. Although, the petitioners as well as respondents have

invited my attention to the oral evidence recorded in the matter

and have also made submissions in reference to the documentary

evidence, as I am expecting the Collector to deal with the matter

afresh and record proper reasons, it would not be desirable to

make comments touching the merits of the controversy.

16. It would be appropriate to advert to the observations of the

Supreme Court in the matter of Sadashiv H. Patil v. Vithal D.

Teke and others reported in 2000 (Supplementary) Bom. C.

R. 829 equivalent to 2000(8) SCC page 82. In para 9, 14 and 15

of the judgment, it has been observed thus :

09. 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 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 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 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.

17. Reference also can be made to a judgment of the Division

Bench of this Court in the matter of Narsing G. Patil and

others Vs. Arun Gujrathi Speaker and others reported in

2003(1) Bom. C. R. 363, it has been observed thus :

51. The avowed object of the Tenth Schedule is to discourage unprincipled defections which is political

and social evil. The interpreting the Tenth Schedule, we should bear in mind the principles in

Haydon's case as applied in (Bengal Immunity Company Ltd. V. State of Bihar), AIR 1955 S.C. 661 : (at page 674):

"(22) It is a sound rule of construction of a statue firmly established in England as far back as 1584 when (Heydon's), case

1584(3) Co. Reb 7A(V) was decided that :

"..................for the sure and true interpretation of all sttutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered :

1st: What was the common law before the

making of the Act.

2nd: What was the mischief and defect for

which the common law did not provide. 3rd: What remedy the Parliament hath resolved and appointed to cure the

disease of the common wealth, and 4th: The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall

suppress the mischief, and advance the

remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and 'pro privato

commodo' and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, 'pro bono

publico'."

51-A. It is clear that the evil which was sought to be remedied by the Parliament was the one resulting from widespread practice of unprincipled

floor crossing by the legislators. This evil was sought to be remedied by inserting the Tench Schedule in the Constitution. The anti-defection law must be so interpreted as to eliminate the mischief

rather than to promote it. If interpretation of para 2(1)(a) of the Tench Schedule as suggested by the petitioners Counsel is accepted it would virtually defeat the very object of the Tench Schedule."

18. As I have recorded above, I find that the Collector, while

dealing with the matter, has not recorded reasons in support of

the findings on the material issues. The Collector dealing with

the matter is supposed to record findings of facts based on

appreciation of evidence and has failed to do so. The concerned

parties have already led sufficient evidence before the Collector,

but the Collector has not discussed the same. It would not be

appropriate and proper for this Court to record any finding on

appreciation of evidence for the first time in absence of there

being any reasoned order supporting the findings recorded by the

Collector. It would be appropriate to remand the matter back to

the Collector for deciding the same afresh and record proper

findings supported by reasons. The Collector is expected to hear

the parties and pass the reasoned order. The Collector while

deciding the matter would obviously bear in mind the

observations of the Apex Court in the matter of Sadashiv H.

Patil v. Vithal D. Teke and others as well as the Division

Bench of this Court in the matter of Narsing G. Patil Vs. Arjun

Gujrathi Speaker and others.

19. Reliance can be placed on the judgment in the matter of

Laxman Tukaram Choudhari and others Vs. State of

Maharashtra reported in 2003 (Supplementary) Bom. C. R.

page 567. In the reported matter, the Collector has carelessly

and light heartedly dealt with the question, and that his order

did not indicate application of judicious mind to the points raised

or conscious application of mind. This Court was compelled to

remit the matter back to the Collector. In paragraph 15 and 16 of

the judgment it is observed thus :

15. The object of judicial review under Article 226 of the Constitution of India by the High Court either

of administrative action or of the judgment/orders passed by quasi judicial authority the Court has to

ascertain whether the decision given in consonance with the law governing field and whether the authority committed any error of law that means the decision making authority must understood it

correctly. The law which regulates decision making authority while doing so, the order must disclose

conscious application of mind and the decision making authority has applied the law to the fact brought before it correctly. In present case, these

requirements are absent. The scope of judicial review, is concerned, with the reviewing not the merit of the decision in support of which the petition is filed, but the decision making process by the

authority while dealing with, the impugned order this Court is not acting as an appellate authority by appreciating the evidence on record. Therefore, the decision taken is to be judged from above referred principles.

16. Applying the well known principle of judicial

review, in my judgment, the Collector should have, with all seriousness, considered rival contentions

applied the law to the facts brought on record and then passed a speaking order. As there is no reasoned order, nor proper findings are recorded on

the basis of the record produced and submissions made before him, it is very difficult for this Court to ascertain as to which are the facts which warranted the Collector to overrule/reject the objection

petitions. As there is no well reasoned and merited

order, it will not be possible for me to accept the contention of the learned Senior Advocate for the contesting respondents.

In the instant matter also, as the order passed by the Collector

does not disclose any reasons in support of the findings recorded

by him, there is no alternative except to remit the matter back to

the Collector for fresh disposal in accordance with law.

20. It also cannot be lost sight of the fact that the legislative

intent in bringing about anti-defection law is to curb the practice

of unprincipled floor of crossing by the elected members, however,

the evil is required to be remedied by putting proper

interpretations to the provisions of law with a view to advance

the intent of legislature in bringing about anti-defection law.

The observations of the Division Bench of this Court in the

matter of Narsing Patil also cannot be overlooked. The Anti-