Mrs. Rajani W/O. Vijay Motghare ... vs The Collector, Bhandara And ...
2016 Latest Caselaw 4564 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH : NAGPUR
                             Writ Petition No.6992 of 2015




                                                 
     1.      Mrs. Rajani wife of Vijay Motghare,
             aged about 45 years,
             occupation - Household,




                                        
             resident of Shukrawari Ward,
             Paoni, Tq. Paoni,ig
             Distt. Bhandara.

     2.      Mr. Naresh son of Domdu Bawankar,
                            
             aged about 40 years,
             occupation - Agriculturist,
             resident of Shaniwari Ward,
             Paoni,
             Tq. Paoni, Distt. Bhandara.
      


     3.      Mr. Tulsidas son of Karuji Wanjari,
   



             aged about 37 years,
             occupation - Household,
             resident of Gautram Ward,
             Paoni, Tq. Paoni, Distt. Bhandara.





     4.      Ms. Heera daughter of Kewaji
             Manapure,
             aged about 48 years,
             occupation - Household,
             resident of Belghat,





             Paoni, Tq. Paoni,
             Distt. Bhandara.

     5.      Mrs. Surekha wife of Lalchand
             Deshmukh,
             aged about 35 years,
             occupation - Household,
             resident of Padma Ward,




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             Paoni, Tq. Paoni,
             Distt. Bhandara.

     6.      Mrs. Maya wife of Sharad




                                                 
             Khaparde,
             aged about 45 years,
             occupation - Household,
             resident of Mangalwari Ward,
             Paoni, Tq. Paoni,




                                    
             Distt. Bhandara.

     7.
                             
             Mrs. Avina wife of Balaram Mundale,
             aged about 33 years,
             occupation - Household,
             resident of Bajrang Ward,
                            
             Paoni,
             Tq. Paoni, Distt. Bhandara.   .....                   Petitioners.


                                    Versus
      
   



     1.     The Collector, Bhandara,
            Tq. & Distt. Bhandara.

     2.     Mr. Mohan Shrihari Surkar,





            aged about 41 years,
            occupation - Agriculturist,
            resident of Padma Ward,
            Paoni, Distt. Bhandara.                .....        Respondents.





                                     *****
     Mr. A.M. Ghare, Adv., for the petitioners.

     Mr. K.L. Dharmadhikari, Asstt. Govt. Pleader for respondent no.1.

     Mr. M.P. Khajanchi, Adv., for respondent no.2.

                                     *****




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                                            CORAM :            A.S. CHANDURKAR, J.

             Date on which arguments




                                                              
             were concluded          :                         05th July, 2016

             Date on which judgment
             is pronounced                             :       09th August, 2016




                                                
     J U D G M E N T:

01. Rule. Heard finally with consent of counsel for the parties.

02. The petitioners are aggrieved by the order dated 22nd

December, 2015 passed by the Collector, Bhandara, in the

Disqualification Petition preferred by the respondent no.2 under Section

3 (1) (b) of the Maharashtra Local Authority Members Disqualification

Act, 1986 [for short "the said Act"], read with Rule 6 of the

Maharashtra Local Authority Members Disqualification Rules, 1987 [for

short "the said Rules"]. By the said order, the petitioners have been

declared to have incurred disqualification under the provisions of

Section 3 (1) (b) of the said Act.

03. The facts giving rise to the challenges raised in the Writ

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Petition are that in the month of December, 2011, general elections to

Municipal Council, Paoni, were held. The petitioners as well as the

respondent no.2 were elected as councilors. They all belong to Shiv

Sena party. Thereafter, in the meeting of the councilors belonging to

the said party, that was held on 13th December, 2011, the respondent

no.2 was elected as the Group Leader of the political party. This

information was thereafter submitted to the respondent no.1 as

required under the said Rules. Thereafter, on 17th July, 2014, the

respondent no.1 issued a notice convening a special meeting of the

Municipal Council to elect the President of the Municipal Council. The

meeting was scheduled on 25th July, 2014. On that basis, the

respondent no.2 on 22nd July, 2014 convened a meeting of all the

councilors of the political party. The petitioners were stated to have

refused to accept the aforesaid notice. On 23rd July, 2014, the said

meeting was held in the presence of the District President of the

political party. It was resolved that all councilors would vote in favour

of one Smt. Vanita Katekhaye, who was to be the candidate of the

political party, for the post of President. The respondent no.2

accordingly issued a whip to all the councilors. The same was also

published in various local newspapers. In the election held on 25th

July, 2014, the petitioners did not obey the whip as issued, and,

instead, supported the candidature of the petitioner no.1 who was

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declared elected as President.

04. In this background, the respondent no.2 filed a

disqualification petition under Rule 6 of the said Rules seeking

disqualification of the petitioners under Section 3 (1) (b) of the said

Act, on the ground that the petitioners had defied the whip issued on

behalf of the political party. In response to the disqualification petition,

the petitioners filed their Written Statement. They denied the holding

of meeting on 23rd July, 2014, and they also denied service of any

whip upon them. It was further the case of the petitioners that though

the last date for withdrawal of nomination was 23rd July, 2014, the

party had never intimated the petitioner no.1 to withdraw her

nomination. On that basis, the petitioners sought dismissal of the

Disqualification Petition.

05. In the proceedings before the Collector, the petitioners

raised a preliminary objection, on the ground that the provisions of

Rule 6 of the said Rules had not been duly complied with and,

therefore, the disqualification petition was liable to be summarily

dismissed. By order dated 21st November, 2014, this preliminary

objection came to be rejected. The disqualification proceedings were

thereafter taken up for trial. The respondent no.2 examined himself

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and another witness by name Shri Manoj Malvi. The petitioners

examined the petitioner no.1 on their behalf. When the disqualification

petition was taken up for final arguments, the petitioners moved an

application for calling the opinion of a handwriting expert, on the

ground that the contents of the notice dated 22nd July, 2014 deserved

to be verified by an expert. The said application, however, was

rejected by order dated 3rd November, 2015. The Collector thereafter

heard both sides and recorded a finding that the respondent no.2 was

elected as the Group Leader of the political party, a meeting of the said

group was held on 23rd July, 2014 and a whip was issued on the basis

of a resolution passed therein. It was further held that the petitioners

had due knowledge about the contents of the whip. On that basis, it

was held that the petitioners having disobeyed the aforesaid whip,

were disqualified to continue as councilors in view of provisions of

Section 3 (1) (b) of the said Act. This order of disqualification is under

challenge.

06. Shri A.M. Ghare, the learned counsel for the petitioners,

submitted that the Collector was not justified in disqualifying the

petitioners under the provisions of Section 3 (1) (b) of the said Act. As

per the election programme, the date for filing nomination forms was

21st July, 2014, while the date for publishing the list of eligible

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candidates was 23rd July, 2014. The nomination forms were to be

withdrawn on 24th July, 2014 and the elections were to be held on 25th

July, 2014. He submitted that no meeting of the councilors belonging

to the political party was held on 23rd July, 2014. According to him, if

the nomination forms were to be submitted on 21st July, 2014, there

was no question of a meeting being convened on 23rd July, 2014 to

decide the candidate for the post of President. He then submitted that

the presence of the District President of the political party, namely Shri

R.H. Gadhave, was doubtful considering the fact that the said District

President had filed three different affidavits dated 21st October, 2014,

9th December, 2014 and 1st February, 2015, on record. He urged that

the respondent no.2 had no authority to issue the whip in question.

Even otherwise, the service of the said whip was doubtful and it was

shrouded with suspicious circumstances. The signatures of the

witnesses, who were alleged to have been present when the whip was

not accepted, were also doubtful. In absence of service of the whip,

there was no question of its disobedience. He further submitted that in

this background, the prayer made by the petitioners for obtaining a

report of a hand writing expert was justified and the same ought to

have been accepted by the Collector. He, therefore, submitted that the

petitioners could not have been disqualified under provisions of Section

3 (1) (b) of the said Act in these circumstances. In support of his

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submissions, the learned counsel placed reliance upon the Judgment of

the Hon'ble Supreme Court in Sadashiv H. Patil Vs. Vitthal D. Teke

& others [2001 (1) Mh.L.J. 312].

07. Shri M.P. Khajanchi, the learned counsel for the respondent

no.2, supported the impugned order. According to him, the respondent

no.2 had been elected as the Group Leader in the meeting held on

13th December, 2011. Necessary compliance of the relevant rules had

been made by giving an intimation in that regard to the office of the

Collector. The resolution dated 13th December, 2011 electing

respondent no.2 as the Group Leader was never challenged. According

to him, merely because the meeting of the party councilors was held

on 23rd July, 2014 after filing of the nomination forms, the same would

not be fatal to the case of the respondent no.2. At no point of time, did

the petitioners make any demand for holding a meeting to decide upon

the candidature of a particular councilor. He submitted that the

presence/absence of the District President, Shri R.H. Gadhave, was not

at all relevant on the aspect of the authority of the respondent no.2 to

issue a whip. On the contrary, the affidavits filed on behalf of the

petitioners on 14th December, 2011, to the effect that the directions

issued by the Group Leader would be binding on them ought to have

been followed by the petitioners. It was further not necessary that the

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whip should disclose the source of authority. He then referred to the

averments made in the reply filed on behalf of the petitioners, and

submitted that the authority of the respondent no.2 to issue the whip

had never been disputed. It was then urged that the observations

made in the order dated 21st November, 2014 while deciding the

preliminary objections had been initially challenged by filing Writ

Petition No. 6893 of 2014; but the petitioners were permitted to

challenge the same after the final order was passed. However, in the

present writ petition, no such challenge was raised. There was no

reason, whatsoever, to obtain the opinion of handwriting expert, as the

petitioners had not placed on record any other opinion in that regard.

It was, therefore, urged that the order of disqualification passed by the

Collector did not call for any interference in writ jurisdiction. In support

of his submissions, the learned counsel placed reliance upon the

Judgments in [a] Ashok Yashwantrao Patil & others Vs. District

Collector, Satara & others [1998 (3) Mh.L.J. 569], [b] Shilpa

Subhash Dhundur Vs. Ratnagiri Nagar Parishad, Ratnagiri &

others [1999 (1) Mh.L.J. 524], [c] Gajanan Subhashrao

Suryawanshi Vs. Sharad Namdeo Pawar & others [2013 (6)

Mh.L.J. 505], [d] Avinash Gulabrao Mardikar Vs. Divisional

Commissioner, Amravati & others [2014 (6) Mh.L.J. 720], and [e]

Sunil Haribhau Kale Vs. Avinash Gulabrao Mardikar & others

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[2015 (2) SCALE 610].

Shri K.L. Dharmadhikari, learned Asstt. Govt. Pleader,

appeared for the respondent no.1 and supported the impugned order.

08. I have heard the respective Counsel for the parties and

I have perused the documents placed on record. The relevant

facts that can be gathered from the documents placed on record

indicate that the petitioners as well as the respondent no.2 were

elected as Councillors of Municipal Council, Paoni. In the meeting

of the Councillors belonging to the political party that was held on

13-12-2011 the respondent no.2 was chosen as the group leader.

In the said meeting the petitioners were present. Pursuant

thereto when the relevant information was furnished to the office

of the respondent no.1, each petitioner submitted an affidavit

stating therein that the petitioner was a member of the said

political party and the directions issued by the group leader

would be binding on him/her. On the basis of these affidavits, the

necessary information was entered in the records that are

required to be maintained under the provisions of the said Rules.

With this factual background, the challenges as raised would

require consideration.

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09. The special meeting to hold elections for the post of

President of the Municipal Council was scheduled on 25-7-2014.

The nomination forms were to be submitted on 21-7-2014.

On 22-7-2014, the respondent no.2 in his capacity as group

leader convened a meeting of the Councillors belonging to the

political party. These notices were stated to have not been

accepted by the petitioners. In the meeting held on 23-7-2014

the candidature of Smt Vanita Katekhaye was approved for the

post of President. The respondent no.2 was directed to issue a

whip to all the Councillors of the political party. Such whip was

issued on 24-7-2014 by the respondent no.2. The same could not

be served upon the petitioners as they were not found present at

their residence. On 25-7-2014, this whip was published in four

local newspapers. In the special meeting held on 25-7-2014, the

petitioner no.1 contested the said election. The petitioner no.1

secured nine votes while Smt. Vanita Katekhaye secured eight

votes. The petitioner no.1 was declared elected as the President.

10. It is to be noted that the petitioners had participated in

the meeting that was held on 13-12-2011 in which the

respondent no.2 was elected as the group leader. After the

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notice of the special meeting was issued on 17-7-2014 for

electing the President, none of the petitioners demanded the

holding of any meeting to discuss about any probable candidate

in the said election. Such meeting was convened by the

respondent no.2 as group leader on 23-7-2014. The remarks

indicating refusal to accept said notice have been made with

signature of one Manoj Malvi. There are also signatures obtained

of two witnesses. The respondent no.2 examined said Shri Manoj

Malvi and it was suggested to him that the notice dated 22-7-

2014 as well as the whip dated 24-7-2014 were sought to be

served on the same day, but this was denied by the said witness.

Though the said witness was duly cross-examined, there is no

material therein to discredit his version. The Collector while

answering point no.2 has accepted the aforesaid evidence and

has recorded a finding that the meeting dated 23-7-2014 had

been duly held and this finding therefore being based on

evidence on record, there is no reason whatsoever not to accept

the said finding.

11. Merely because the meeting of the political party was

held on 23-7-2014 when, in fact, the nomination forms were

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already submitted on 21-7-2014 would not render the holding of

said meeting on 23-7-2014 doubtful. The said meeting was held

prior to withdrawal of the nominations which was on 24-7-2014.

Similarly, the dispute as regards the presence/absence of Shri

R.H. Gadhwe is not of much consequence especially when the

respondent no.2 as the group leader was present in the said

meeting. As noted above, the petitioners were party to the initial

resolution dated 13-12-2011 in which the respondent no.2 was

elected as the group leader and it was also resolved that all

Councillors would abide by his directions. Merely because the

District President of the party, Shri R. H. Gadhwe had filed three

affidavits on record making contrary statements, the same would

not affect the decision taken in the meeting held on 23-7-2014.

The submission in that regard made on behalf of the petitioners

cannot be accepted.

12. Before considering the aspect of issuance of whip by

the respondent no.2, it would be necessary to refer to the

decision of the Division Bench in Gajanan Subhashrao

Suryawanshi (supra). It was held by the Division Bench that in

absence of any Rules governing the working of a Municipal party,

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the procedure has to be governed by democratic principles. It has

then been observed that in absence of any demand for holding a

meeting the group leader would be competent to issue a whip on

his own. While holding so, the Division Bench relied upon the

judgment of the Hon'ble Supreme Court in Sadashiv H. Patil

(supra). Though it was submitted on behalf of the petitioners that

the observations of the Division Bench in para 46 of its judgment

do not properly reflect the dictum of the Hon'ble Supreme Court

in Sadashiv H. Patil (supra), the said submission cannot be

accepted. On a proper reading of the decision of Hon'ble

Supreme Court, it is not possible to accept the aforesaid

contention made on behalf of the petitioners.

13. In the light of aforesaid legal position, it will have to be

held that the respondent no.2 was fully empowered to issue the

whip dated 24-7-2014. After the same could not be served on the

petitioners, its copies were published in four daily newspapers on

the day when the special meeting was convened. The attempts

made to serve the copy of the whip on the petitioners along with

the endorsement thereon having been accepted by the

respondent no.1 as a fact finding authority, the said finding is not

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liable to be interfered with. Once the authority of the respondent

no.2 as a group leader stands duly established, his authority has

to issue the whip cannot be questioned. The observations of the

Division Bench in para 61 of its judgment in Gajanan Subhashrao

Suryawanshi (supra) indicate that the members of the political

party - Councillors are expected to be in touch with the political

party as regards any directions issued by it in this regard. In the

present case, publication of the whip in four daily newspapers

prior to the special meting indicates that all steps were taken by

the respondent no.2 to bring the said whip to the notice of the

petitioners. The evidence on record further indicates the

attempts made by the respondent no.2 to inform the petitioners

about the whip in the special meeting itself. However, the

petitioners voted in favour of the petitioner no.1 defying the

whip. It is not the case of the petitioners that any attempt as to

codonation of this defiance was ever made. Hence, the finding

recorded that the petitioners had voted contrary to the whip

stands established thereby attracting disqualification under

provisions of Section 3(1) (b) of the said Act.

14. In so far as the request for having the copy of notice

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dated 22-7-2015 being examined by the hand writing expert for

obtaining his opinion which application came to be rejected, I do

not find that any prejudice whatsoever was caused due to failure

to obtain such opinion. It is not the case that the petitioners had

themselves obtained opinion of some hand writing expert and

therefore, wanted to support such opinion. Much would not turn

on this aspect especially when the respondent no.2 as the group

leader in absence of any Rules and Regulations of the political

party had the authority to issue the whip.

Perusal of the impugned order passed by the Collector

indicates that he has taken into consideration all the relevant

aspects before recording the conclusion that the petitioners had

violated the whip due to which they had incurred disqualification

under Section 3(1)(b) of the said Act. The observations of the

Division Bench in Shilpa Subhash (supra) as well as the

observations in paragraph 7 of the judgment of the Division

Bench in Ashok Yeshwantrao Patil (supra) support the case of the

respondent no.2.

In view of aforesaid discussion, I do not find that any

case has been made out to interfere in exercise of extra ordinary

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jurisdiction. There is no jurisdictional error committed by the

Collector when he allowed the disqualification petition filed by

the respondent no.2. Accordingly, Rule stands discharged with no

order as to costs.

At this stage, the learned Counsel for the petitioners

seeks stay of this judgment for a period of six weeks. This

request is opposed by the learned Counsel for respondent no.2.

Considering the fact the order of interim relief has

been operating since 5-1-2016, the same shall continue to

operate for a period of four weeks from today and shall cease to

operate thereafter.

JUDGE

//MULEY//

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