Bombay High Court
Shah Faruq Shabbir And Ors vs Govindrao Ramu Vasave And Ors on 29 June, 2016
Bench: R.M. Borde
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.4323 OF 2011
01 Shah Faruq Shabir,
age: 45 years, Occ: Councillor,
R/o Navapur,
District Nandurbar.
02 Deepak Kalu Patil,
age: 50 years, Occ: Councillor,
R/o Navapur,
District Nandurbar.
03 Ashish Fattu Mavchi,
R/o Navapur,
District Nandurbar.
age: 40 years, Occ: Councillor,
04 Smt. Sushila Lalji Ahire,
age: 55 years, Occ: Councillor,
R/o Navapur,
District Nandurbar.
05 Smt.Alkaben Subhashchandra
Agrawal, age: 50 years,
Occ: Councillor, R/o Navapur,
District Nandurbar. Petitioners
Versus
01 Govindrao Ramu Vasave,
age: adult, Occ: Agril.,
R/o Navapur,
District Nandurbar.
02 Navapur Municipal Council,
Navapur, (C-Class Municipal
Council), District Nandurbar
through Chief Officer.
03 Collector,
Nandurbar, District Nandurbar. Respondents
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Shri P.M.Shah, Senior Counsel i/by Mr.S.P.Shah, advocate for
petitioners.
Shri Mukul Kulkarni, advocate for Respondent No.1.
Shri Umakant P. Giri, advocate for Respondent No.2.
Mr.A.B.Girase, Government Pleader for Respondent No.3.
CORAM : R.M.BORDE,
SUNIL P. DESHMUKH &
RAVINDRA V. GHUGE, JJJ.
Reserved on : 12th April, 2016
Pronounced on: 29th June, 2016.
JUDGMENT (Per R.M.Borde, J.):
1 The learned Single Judge, while dealing with the writ
petition, by an order dated 23.01.2012, was pleased to formulate
following two issues for consideration of the larger Bench:
I Whether the term aghadi or front as defined
U/Sec. 2(a) of the Disqualification Act of 1986 would
mean the party or aghadi on whose candidature the
councillor is elected or would also include the aghadi
of two or more municipal parties coming into existence
after the elections are held?
II Whether the term original political party or
aghadi appearing in Sec. 5 would mean the party at its
National level or would mean a municipal party?
2 We have heard arguments advanced by Shri P.M.Shah,
learned Senior Counsel i/by Mr.S.P.Shah, advocate for petitioners,
Shri Mukul Kulkarni, learned advocate for Respondent No.1, Shri
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Umakant P. Giri, learned advocate for Respondent No.2 and
Mr.A.B.Girase, learned Government Pleader for Respondent No.3.
3 The facts in nutshell, giving rise to the reference, are
as under:
Petitioners are the elected councillors of Municipal
Council, Navapur. General elections to the Municipal Council took
place to elect total 19 councillors and candidature of petitioners
was set up by Nationalist Congress Party (NCP). The post election
aghadi came to be formed consisting of 09 councillors belonging to
Nationalist Congress Party (NCP), 02 councillors set up by Bhartiya
Janata Party (BJP) and 01 councillor set up by Shivsena, on 1 st
December, 2007. Respondent No.1 - Govindrao Ramu Vasave was
chosen as a leader of the aghadi. An application came to be
presented to the Collector for registration of aghadi on 02.12.2007.
Respondent No.1 informed the Collector that he is elected as leader
of NCP municipal party as also of aghadi. Respondent No.1 came
to be elected as President of the Municipal Council for the term of
two and half year on 24.12.2007 with the support of councillors of
aghadi.
4 On 18.06.2010, an application came to be presented by
petitioners along with Shri Nilesh Prajapat and Smt. Lalita Gavit to
the Collector seeking approval to a separate group. A whip was
issued by Respondent No.1 on 18.06.2010 and also by the
President of the Nandurbar District Nationalist Congress Party on
21.06.2010, calling upon members of the aghadi and members set
up by NCP to cast vote in favour of Respondent No.1 during the
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election to the post of President which was scheduled to be held on
23.06.2010. Petitioners violated the whip and a candidate viz.
Mr.Damu Vana Birhade, belonging to Indian National Congress
(Congress I), was elected as the President and petitioner no.1 came
to be elected as Vice President. Petitioners were sought to be
disqualified in view of provisions of Section 3(1)(a) and 3(1)(b) of the
Maharashtra Local Authority Members' Disqualification Act, 1986
(hereinafter referred to as the "Disqualification Act"). The Collector
allowed the disqualification petition and held petitioners
disqualified under Section 3(1)(a) and 3(1)(b) of the Disqualification
Act. The said judgment is assailed in the writ petition.
5 During the course of hearing, it has been urged by
petitioners that there is no concept of post-poll aghadi after
elections, under the Disqualification Act. Section 2(a) defines
"aghadi" or "front" to mean a group of persons who have formed
themselves into a party for the purpose of setting up candidates for
election to a local authority.
6 It has been contended that there is no scope in law to
recognize any post-poll aghadi on consideration of definition of
"aghadi" along with definition of "municipal party", "original
political party"; and explanation to Section 3(1) of the
Disqualification Act. It has been contended that the three parties
coming together after election can, at the most, be said to have
formed coalition and same does not have legal existence and as
such, there is no leader of such coalition who is empowered to
issue whip/direction. Respondent No.1, who claims to have elected
as leader of the aghadi, has no legal existence.
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7 It has been further pointed out that the merger, as
contemplated under Section 5(1) of the Disqualification Act, is
merger of original political parties and not merely merger at
municipal level. It is contended that merger of municipal parties,
without there being any merger at National level or original
political parties, is unknown to the Disqualification Act. Reliance
is placed on the judgment in the matter of Kedar Shashikant
Deshpande & others Vs. Bhor Municipal Council and others,
reported in (2011) 2 SCC 654 and the judgment of learned Single
Judge in the matter of Sunil Supadu Mahajan Vs. Manoj
Dayaram Choudhari & another, reported in 2011 (4) Mh.L.J. 630.
Reliance is also placed on the judgment in the matter of Jagjit
Singh Vs. State of Haryana and others, reported in (2006) 11
SCC 1 and Rajendra Singh Rana and others Vs. Swami Prasad
Maurya and others, reported in (2007) 4 SCC 270.
8 Respondents contended before the learned Single
Judge that the formation of 'aghadi' is an undisputed fact. The
Division Bench of this Court, in the case of Parshuram Prabhakar
Uparkar Vs. Tukaram Bhagwan Barde and others, reported in
2006 (5) Mh.L.J. 598, has held that the expression "original party"
will necessarily mean "Zilla Parishad party" in the House of Zilla
Parishad, or Municipal Party in the "Municipal Council", as the
case may be.
9 Reliance is also placed on the judgment of the Division
Bench of this Court, in the matter of Pandurang Dagadu Parte Vs.
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Ramchandra Baburao Hirve & others, reported in 1997 (2)
Mh.L.J. 759, to contend that , "aghadi" or front, as is defined in
Section 2(a) of the Disqualification Act, includes not only "aghadi"
or front, which is formed prior to the elections, but also includes
the group of persons which has been formed after the elections are
over. Placing reliance on the judgment in the matter of Umesh
Shrikant Shetye Vs. Collector, Ratnagiri and others, reported in
2009 (6) Mh.L.J. 209, it has been contended that even successive
mergers are also permissible. The learned Single Judge, noticing
conflict of views, felt it necessary that the matter requires to be
dealt with more advantageously by the larger Bench.
Statement of Objects and Reasons:
10 The Maharashtra Local Authority Members'
Disqualification Act, 1986, is modelled on Tenth Schedule of the
Constitution of India with certain modifications since the law
governs the aspect of disqualification concerning local authorities.
The statement of objects and reasons recorded in the Bill, are set
out as below:
"With a view to eradicating the evil of
political defection in the Parliament on the
National level and in the State Legislatures on
the State Level, the Parliament has amended
the Constitution of India by the Constitution
(Fifty second Amendment) Act, 1985. At the
level of district, Taluka, city and town, different
local authorities are charged with the
administration of functions relating to Local
Government. These local authorities are, in the
main elective. The field of Local Government
constitutes a training ground for the State and
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National Government. Many of our ablest
statesmen and legislators have received their
earliest training to the sphere of Local
Government. The local authorities may become
the pioneers in various fields of political
activity. This evil of political defections is also
present in the local authorities which is the
base of our democratic institutions. It is,
therefore, expedient to prevent political
defections in certain local authorities also in
the State."
11 High-lighting the importance of report of the
Commissions, the Enquiry Committees and the objects and
reasons preceding the introduction of the Bill as an external aid to
construction of statute, in the matter of Mahadeo Nathuji Patil
Vs. Surjabai Khushalchand Lakkad & others, reported in 1994
(2) Mh.L.J. 1145, the Full Bench of this Court, in paragraph 29 of
the judgment, has observed thus:
"29 It is now well-settled that the report of
the Commissions, the Enquiry Committees and
the objects and reasons preceding the
introduction of the Bill can also be referred to
for finding out the setting in which the Statute
is enacted i.e. for understanding the
background, the antecedent state of affairs, the
surrounding circumstances in relation to the
Statute and the evil which the Statute was
sought to remedy. As regards the use of
Statement of Objects and Reasons as an
external aid to construction, the rule is also
settled by catena of Judgments of the Supreme
Court in that regard. See for instance:
State of West Bengal Vs. Suhodh Gopal Bose,
AIR 1954 SC 92, Utkal Contractors and
Refinery Private Ltd. Vs. State of Orissa, AIR
1987 SC 2310, Taong Shang Vs. Commander
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S.D. Baijal, AIR 1988 SC 603 pages 607 and
608."
12 The object of introducing (Fifty-second) amendment bill
for inclusion of 10th Schedule in the Constitution is primarily to
curb political defection which has been a matter of national
concern.
13 The essence of defection is disloyalty, abandonment of
duty or principle. The defector is disloyal not only to the party on
whose ticket he or she has been elected but also commits a breach
of faith with the electorate whose votes were secured on the basis
of his or her electoral affiliation and promises. Concerned over the
malaise of political defections in national life, the Lok Sabha has
adopted a non-official resolution on 8 th December, 1967 urging
appointment of a high level committee. In pursuance thereof, the
committee of constitutional experts and representatives of political
parties was set up in March, 1968, under the Chairmanship of the
then Home Minister Shri Y.B.Chavan, to consider the problem of
legislators changing their allegiance from one party to another and
their frequent crossing of the floor, in all its aspects and to make
recommendations in that regard. The report of the Committee was
laid on the table of Lok Sabha on 28th February, 1969. It would not
be necessary to consider the chequered history of legislation.
However, after the General Elections in the year 1984, the
Constitution, (Fifty-second Amendment) Bill was presented in Lok
Sabha on 24th January, 1985. The Statement of Objects and
Reasons appended to the Bill stated thus:
1 The evil of political defections has been a
matter of national concern. If it is not
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combated, it is likely to undermine the very
foundations of our democracy and the
principles which sustain it. With this object, an
assurance was given in the Address by the
President to Parliament that the Government
intended to introduce in the current session of
Parliament an anti-defection Bill. The Bill is
meant for out-lawing defections and fulfilling
the above assurance.
2 The Bill seeks to amend the Constitution
provide that an elected member of Parliament
or a State Legislature, who has been elected as
a candidate set up by a political party and a
nominated member of Parliament or a State
Legislature, who is a member of a political party
at the time he takes his seat or who becomes a
member of a political party within six months
after he takes his seat would be disqualified on
the ground of defection if he voluntarily
relinquishes his membership of such political
party or abstains from voting in such House
contrary to any direction of such party or is
expelled from such party. An independent
member of Parliament or a State Legislature
shall also be disqualified if he joins any political
party after his election. A nominated member
of Parliament or a State Legislature who is not a
member of a political party at the time of his
nomination and who has not become a member
of any political party before the expiry of six
months from the date on which he takes his
seats shall be disqualified if he joins any
political party after the expiry of the said period
of six months. The Bill also makes suitable
provisions with respect to splits in, and mergers
of, political parties. A special provision has
been included in the Bill to enable a person
who has been elected as a presiding officer of a
House to sever his connection with his political
party. The question as to whether a member of
a House of Parliament or State Legislature has
become subject to the proposed disqualification
will be determined by the presiding officer of
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the House; where the question is with reference
to the presiding officer himself, it will be
decided by a member of the House elected by
the House in that behalf.
3 The Bill seeks to achieve the above
objects."
14 The Statement of Objects and Reasons clearly leads
one to conclude that defection is antithetical to democracy. It
betrays the fundamental promise of loyalty to a party and to its
philosophy. The elected councillor is supposed to implement the
ideologies and the philosophy of the political party by which his
candidature was set up. The remedy proposed under the
Constitution (Fifty-second Amendment) Act is to disqualify the
member of either House of the Parliament or the State Legislature
who has been elected as a candidate set up by a political party, on
the ground of defection. The Hon'ble Supreme Court, in the matter
of Kihoto Hollohan Vs. Zachillhu and others, reported in 1992
Supp (2) SCC 651, in paragraph no.13 of the judgment, has
observed thus:
"13 These provisions in the Tenth Schedule
give recognition to the role of political parties in
the political process. A political party goes
before the electorate with a particular
programme and it sets up candidates at the
election on the basis of such programme. A
person who gets elected as a candidate set up
by a political party is so elected on the basis of
the programme of that political party. The
provisions of Paragraph 2(1)(a) proceed on the
premise that political propriety and morality
demand that if such a person, after the
election, changes his affiliation and leaves the
political party which had set him up as a
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candidate at the election, then he should give
up his membership of the legislature and go
back before the electorate. The same yardstick
is applied to a person who is elected as an
Independent candidate and wishes to join a
political party after the election."
It would also be appropriate to refer to paragraphs
no.42, 43 and 44 of the judgment, which read thus:
42 Democracy is a basic feature of the
Constitution. Whether any particular brand or
system of government by itself, has this attribute
of a basic feature, as long as the essential
characteristics that entitle a system of
government to be called democratic are
otherwise satisfied is not necessary to be gone
into. Election conducted at regular, prescribed
intervals is essential to the democratic system
envisaged in the Constitution. So is the need to
protect and sustain the purity of the electoral
process. That may take within it the quality,
efficacy and adequacy of the machinery for
resolution of electoral disputes. From that it
does not necessarily follow that the rights and
immunities under sub-article (2) or Article 105
of the Constitution, are elevated into
fundamental rights and that the Tenth Schedule
would have to be struck down for its
inconsistency with Article 105(2) as urged by
Shri Sharma.
43 Parliamentary democracy envisages that
matters involving implementation of policies of
the government should be discussed by the
elected representatives of the people. Debate,
discussion and persuasion are, therefore, the
means and essence of the democratic process.
During the debates the Members put forward
different points of view. Members belonging to
the same political party may also have, and may
give expression to, differences of opinion on a
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matter. Not unoften the views expressed by the
Members in the House have resulted in
substantial modification, and even the
withdrawal, of the proposals under
consideration. Debate and expression of
different points of view, thus, serve an essential
and healthy purpose in the functioning of
Parliamentary democracy. At times such an
expression of views during the debate in the
House may lead to voting or abstinence from
voting in the House otherwise than on party
lines.
44 But a political party functions on the
strength of shared beliefs. Its own political
stability and social utility depends on such
shared beliefs and concerted action of its
Members in furtherance of those commonly held
principles. Any freedom of its Members to vote
as they please independently of the political
party's declared policies will not only embarrass
its public image and popularity but also
undermine public confidence in it which, in the
ultimate analysis, is its source of sustenance -
nay, indeed, its very survival. Intra-party
debates are of course a different thing. But a
public image of disparate stands by Members of
the same political party is not looked upon, in
political tradition, as a desirable state of things.
Griffith and Ryle on Parliament Functions,
Practice and Procedure (1989 edn., p. 119) say :
"Loyalty to party is the norm,
being based on shared beliefs. A
divided party is looked on with
suspicion by the electorate. It is
natural for Members to accept the
opinion of their Leaders and
Spokesmen on the wide variety of
matters on which those Members
have no specialized knowledge.
Generally Members will accept
majority decisions in the party even
when they disagree. It is
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understandable therefore that a
Member who rejects the party whip
even on a single occasion will attract
attention and more criticism than
sympathy. To abstain from voting
when required by party to vote is to
suggest a degree of unreliability. To
vote against party is disloyalty. To
join with others in abstention or
voting with the other side smacks of
conspiracy."
Clause (b) of sub-para (1) of Paragraph 2 of the
Tenth Schedule gives effect to this principle and
sentiment by imposing a disqualification on a
Member who votes or abstains from voting
contrary to "any directions" issued by the
political party. The provision, however,
recognises two exceptions: one when the
Member obtains from the political party prior
permission to vote or abstain from voting and
the other when the Member has voted without
obtaining such permission but his action has
been condoned by the political party. This
provision itself accommodates the possibility
that there may be occasions when a Member
may vote or abstain from voting contrary to the
direction of the party to which he belongs. This,
in itself again, may provide a clue to the proper
understanding and construction of the
expression "any direction" in clause (b) of
Paragraph 2(1)- whether really all directions or
whips from the party entail the statutory
consequences or whether having regard to the
extraordinary nature and sweep of the power
and the very serious consequences that flow
including the extreme penalty of disqualification
the expression should be given a meaning
confining its operation to the contexts indicated
by the objects and purposes of the Tenth
Schedule. We shall deal with this aspect
separately.
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15 Considering the object behind incorporation of Tenth
Schedule in the Constitution of India and the object and reasons
enacting Disqualification Act governing local authorities in the
State, as well as observations of the Hon'ble Supreme Court,
referred to above, in the matter of Kihoto Hollohan (supra), the
provisions of Disqualification Act, need to be interpreted.
Disqualification Act:
16 It would be appropriate to refer to certain provisions of
the Disqualification Act.
Section 2. In this Act, unless the context
otherwise requires-,
(a) "aghadi" or "front" means a group of
persons who have formed themselves into a party
for the purpose of setting up candidates for
election to a local authority;
(e) "local authority" means -
(i) a Municipal Corporation
(ii) a Municipal Council,
(iii) a Zilla Parishad, or
(iv) a Panchayat Samiti :
(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 councillors of the Municipal Corporation for
the time being belonging to that political party or
aghadi or front in accordance with the said
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Explanation ;
(ii) in the case of a councillor of a
Municipal Council, the group consisting of all the
councillors of the Municipal Council 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;
(l) "Panchayat Samiti party", in relation to a
member 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 Panchayat
Samiti for the time being belonging to that
political party or aghadi or front in accordance
with the said Explanation;
(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.
Section 3. (1) Subject to the provisions of
[section 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
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meeting of a 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 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 ;
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 ;
(b) a nominated [councillor] shall -
(i) where he is a member of any political party or
aghadi or front on the date of his nomination be
deemed to belong to such political party or
aghadi or front,
(ii) in any other case, be deemed to belong to the
political party or aghadi or front of which he
becomes, or as the case may be, first becomes a
member of such party or aghadi or front before
the expiry of six months from the date on which
he is nominated;
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( c) **** **** **** **** (deleted)
(2) An elected councillor, or as the case may
be, member who has been elected as such
otherwise than a candidate set up by any
political party or aghadi or front shall be
disqualified for being a councillor, or as the case
may be, a member if he joins any political party
or aghadi or front after such election.
(3) **** **** **** **** (deleted)
(4) Notwithstanding anything contained in the
foregoing provisions of this section a person who
on the commencement of this Act, is a councillor,
or as the case may be, a member (whether
elected or nominated as such councillor or
member ) shall -
(a) where he was a member of a political party
or aghadi or front immediately before such
commencement, be deemed, for the purposes of
sub-section (1), to have been elected as a
councillor, or as the case may be, a member as a
candidate set up by such political party or
aghadi or front;
(b) in any other case, be deemed to be an
elected councillor, or as the case may be,
member who has been elected as such otherwise
than a candidate set up by any political party or
aghadi or front for the purpose of sub-section (2).
Section 4. **** **** **** **** (deleted)
Section 5. (1) A councillor or a member shall
not be disqualified under sub-section (1) of
section 3 where his original political party or
aghadi or front merges with another political
party or aghadi or front and he claims that he
and any other member of his original political
party or aghadi or front -
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(a) have become members of such other
political party, or aghadi or front or as the case
may be, of a new political party formed by such
merger; or
(b) have not accepted the merger and opted to
function as a separate group, and from the time
of such merger, such other political party or new
political party or aghadi or front or group, as the
case may be, shall be deemed to be the political
party or aghadi or front to which he belongs for
the purpose of sub-section (1) of section 3 and to
be original political party or aghadi or front for
the purpose of this sub-section.
For the purposes of sub-section (1), the
merger of the original political party or aghadi or
front of a councillor, or as the case may be, a
member shall be deemed to have taken place if,
and only if, not less than two-thirds of the
members of municipal party, Zilla Parishad party,
or as the case may be, Panchayat Samiti party,
concerned, have agreed to such merger.
Section 6. .... .... .... ..... .....
Section 7. .... .... .... ..... .....
Section 8. .... .... .... ..... .....
Section 9. .... .... .... ..... ......
Section 10. (1) The provisions of this Act
and the rules shall have effect notwithstanding
anything inconsistent therewith contained in any
other law for the time being in force.
(2) Subject to the provisions of sub-section (1),
the provisions of this Act shall be in addition to
and shall not, save as expressly provided
hereinbefore, be in derogation of the provisions of
any law relating to Municipal Corporation,
Municipal Council or other local authority
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concerned.
(3) Notwithstanding anything contained in the
foregoing provisions of this section nothing in
this Act shall apply when a Government servant
is nominated as a Councillor of a Municipal
Council for a Municipal Area specified in Part II
or Part III of Schedule I to the Maharashtra
Municipalities Act, 1965, or to any person who
holds the office as a member of a Panchayat
Samiti by virtue of his being a Government
servant and appointed as Administrator of a co-
operative society.
17 The provisions of the Disqualification Act, as stated
earlier, are in essence derived from Tenth Schedule of the
Constitution of India and needs comparison. Collation would show:
Sr.No Tenth Schedule to the Disqualification Act,
Constitution 1986
1 (Paragraph) 1(b) : Legislature Section 2(i) : Municipal
Party Party;
Section 2 (l) : Panchayat
Samiti Party;
Section 2 (p) : Zilla
Parishad Party.
2 (Paragraph) 1(c) : Original Section 2(j) : original
political party political party.
3 (Paragraph) 2 : Disqualification Section 3 :
on ground of defection. Disqualification on ground
of defection.
4 (Paragraph) 4 : Disqualification Section 5 :
on ground of defection not to Disqualification on
apply in case of merger. ground of defection not to
apply in case of merger.
{20}
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18 The Disqualification Act is modelled on the Tenth
Schedule of the Constitution of India. The object underlying the
Tenth Schedule is to curb the evil or mischief of political defections
motivated by the lure of office or other considerations. The remedy
proposed is to disqualify the member of either House of the
Parliament or State Legislature, who has been elected as well as
nominated member of Parliament or a State Legislature set up by a
political party on the ground of defection.
19 The Disqualification Act is enacted with the same
object. The object is to curb political immorality. Keeping in mind
the object underlying the provisions of the Disqualification Act,
the issues raised in the matter concerning interpretation of the
term "aghadi" or "front" needs to be answered.
20 Section 2(a) of the Disqualification Act defines
"aghadi" or "front" to mean a group of persons who have formed
themselves into a party for the purpose of setting up candidates for
election to a local authority. The plain reading of the above
provision leads to an inference that formation of "aghadi" or "front"
is contemplated for the purposes of setting up a candidate for
election to local authority which necessarily shall have to come
into existence prior to reaching the stage of setting up candidates
for election to local authority. "Municipal party" is defined in
Section 2(i) or "Panchayat Samiti Party" within meaning of Section
2(l) or "Zilla Parishad party" within meaning of Section 2(p) in
relation to a Councillor of Municipal Council or Member of
Panchayat Samiti or Zilla Parishad, belonging to any political party,
aghadi or front in accordance with explanation to Section 3, means
{21}
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the group consisting of all the members of Municipal Council or
Municipal Corporation or Panchayat Samiti or Zilla Parishad for the
time being belonging to that political party or aghadi or front. The
explanation to Section 3, referred to in the concerned provision
quoted above, reads thus:
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.
21 The explanation (a) to Section 3, referred to in the
definition of municipal party, Panchayat Samiti party or Zilla
Parishad party, contained in Section 2 (i), 2(l) and 2(p) respectively,
specifically refers to group consisting of all the councillors or
members of the Municipal Corporation, Municipal Council,
Panchayat Samiti or Zilla Parishad, as the case may be, for the time
being belonging to that political party, aghadi or front, by which he
or she was set up as a candidate for election as such councillor or
member. The explanation (a) to Section 3(1), which is referred to in
the definition clause of the municipal party, Panchayat Samiti
party and Zilla Parishad party is a pointer to that, the person
elected as a councillor, or member, as the case may be, shall mean
a member belonging to a political party or aghadi or front, if any,
by which he was set up as a candidate for election as such
councillor or member. The plain meaning of the provisions,
referred to above, leads us to an irresistible conclusion that the
aghadi or front, referred to under the provisions of Disqualification
{22}
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Act, more particularly Section 2(a) shall be a pre-poll aghadi and
there is little scope to draw a different conclusion, within the
meaning of provisions of Disqualification Act, that such aghadi or
front is accommodative of a group of persons forming themselves
into a party after holding of elections.
22 The term "original political party", as defined in
Section 2(j) of the Act in relation to a councillor or member means
the political party to which he belongs, for the purposes of Section
3(1). Sub-section (1) of Section 3 relates to disqualification on the
ground of defection. Section 3(1)(a) prescribes that a councillor or
member shall incur disqualification if he voluntarily gives up
membership of such political party or aghadi or front. The term
referred to in sub-section (1)(a) of Section 3 is "political party or
aghadi or front" and not the original political party. So also, sub-
section (1) (b) of Section 3 also refers to "political party" and not
"original political party". It has to be analysed as to whether
reference to political party in sub-sections (1)(a) and (b) of Section
3 is referrable to original political party, aghadi or front within the
meaning of Section 2(a).
23 A reference is made to the judgment of the Apex Court
in the case of Kedar Shashikant Deshpande & others Vs. Bhor
Municipal Council & others, reported in (2011) 2 SCC 654, to
contend that the original political party is distinct from municipal
party and merger has to be of the original political party. The
merger of municipal party, without there being any merger at the
National level of the original political party is unknown to the
Disqualification Act.
{23}
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24 The facts giving rise to the decision in Kedar
Deshpande's case (supra) can be set out as under:
25 The general elections for Bhor Municipal Council,
District Pune, which consists of 17 councillors were held on
22.06.2008. At the election, 8 councillors of NCP party, 8
councillors of Indian National Congress party and one independent
candidate were declared elected. The independent candidate joined
NCP immediately on declaration of results. One Mr.Yashawant
Baburao Dal was appointed as Gatneta (group leader) of NCP. He
presented information in form I under the provisions of the
Maharashtra Local Authority Members' Disqualification Rules,
1987 (hereinafter referred to as "Disqualification Rules"). The
candidate belonging to NCP party, one Mr.Shinde was elected as
President with 9 : 8 majority, whereas, Mr.Ganesh Pawar was
elected as Vice President of the Municipal Council. On 21.12.2009,
Mr.Yashawant Dal resigned from the post of Pratod/Gatneta (group
leader) of NCP. On 22.12.2009, six councillors left NCP and formed
Bhor Shahar Vikas Swabhimani Sanghatana (for short,
"Sanghatana") and nominated Mrs. Jayashree Shinde as Party
Pratod of the said Sanghatana. A separate group was formed and
information was submitted in Form I as per Rule 3(1)(a) of the
Disqualification Rules. On 29.12.2009, six councillors of
Sanghatana and 8 councillors of Indian National Congress
submitted a requisition to the Collector for moving no confidence
motion against the President. The new Pratod Mr.Ganesh Pawar of
NCP and one another councillor filed Disqualification Petition
against six councillors who had formed "Sanghatana", for a
{24}
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declaration that they have separated themselves from NCP and
incurred disqualification under Section 3(1)(a) of the
Disqualification Act. The Additional Collector, Pune, passed a final
order on 21.01.2010 and disqualified six councillors / appellants
before the Supreme Court. The said order was confirmed by the
Division Bench of this Court. The judgment of the Division Bench
of this Court was a matter of challenge before the Supreme Court.
It was argued that the appellants before the Supreme Court, who
had formed a separate group and who originally belong to NCP
political party and formed a separate group, have merged with
another political party namely Congress (I). It is observed by the
Hon'ble Supreme Court in paragraph 35 of the judgment that, the
plea of merger has not been specifically raised apart from the fact
that there is no mention of split in NCP or appellants joining
Congress (I) party. The provision relating to split in the
Disqualification Act has been deleted and is no longer available as
defence in the matter of disqualification. The original political
party of the appellants was NCP and it has not been contended
that the original political party has merged with another political
party at any point of time. In paragraph no.65 of the judgment,
the conclusion is recorded, which reads thus:
"65 As noticed earlier the case of
Respondents 4 and 5 was that by voluntarily
giving up membership of NCP the appellants
had incurred disqualification as Councillors
under Section 3(1)(a) of the Act. Section 5 is an
exception to Section 3 which deals with merger
of an original political party or aghadi or front
with any political party or aghadi or front and
provides that in case of such merger Councillor
or a member should not be disqualified under
sub-section (1) of Section 3 of the Act. It was
{25}
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never the case of Respondents 4 and 5 that the
appellants had formed a party and that party
had merged into Congress (I) Party and had
therefore, incurred disqualification. Section 5
speaks of merger of original political party. It is
not the case of Respondents 4 and 5 that
original political party of the appellants,
namely, NCP had merged with any other
political party. Therefore, there was nothing to
be decided as preliminary issue for the purpose
of ascertaining whether the disqualification
petition filed by Respondents 4 and 5 was
maintainable."
26 Placing reliance on the judgment of the Division Bench
of this Court in the matter of Pandurang Dagadu Parte Vs.
Ramchandra Baburao Hirve & others, reported in 1997 (2)
Mh.L.J. 759, which judgment of the High Court has been
confirmed by the Supreme Court in the matter of Dattatraya
Maruti Bawalekar and others Vs. Pandurang Dagadu Parte and
others, reported in (1998) SCC 431, it is canvassed that the term
"aghadi" defined in Section 2(a) would bring within its fold even
the post poll aghadi or formation of a front. The facts giving rise
the controversy in the aforesaid matter can be summarised as
below:
27 Petitioner Pandurang Parte before the High Court and
Respondents 1 to 9 were elected as independent councillors of
Mahabaleshwar Municipal Council. They came together and
formed aghadi / front with the name Mahabaleshwar Giristhan
Nagar Parishad Shahar Vikas Aghadi. On formation of aghadi,
necessary information was furnished to the Collector, which was
published in the official Gazette. The elections to the post of
{26}
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President were held on 31.12.1996. The aghadi sponsored
Respondent No.4, before the High Court, as its candidate. The
leader of the aghadi issued a whip to its councillors to vote in
favour of the aghadi candidate. In the meeting held on 31.12.1996,
Respondent No.4 was declared elected as President for the year
1997-98 having secured 9 votes as against 8 votes secured by the
defeated candidate. Petitioner Pandurang presented an application
to the Collector seeking disqualification of Respondents No.1 to 9
before the High Court as the councillors on the ground that after
being elected as independent councillors they joined aghadi and
thereby incurred disqualification. The question, that arose, in the
matter is, as to whether Respondents No.1 to 9 before the High
Court, who were elected as independent councillors have incurred
disqualification by joining aghadi within the meaning of Section
3(2) of the Disqualification Act. While dealing with the issue, the
High Court took a view that the independent councillors, after
getting elected, if join any political party, aghadi or front after such
election, incurred disqualification. The parallel has been drawn in
respect of a councillor or member who has been elected as member
of the political party, aghadi or front if gives up membership of
such political party, aghadi or front and joins any other political
party, aghadi or front incurs disqualification. In similar fashion, if
a councillor elected as an independent joins any political party,
aghadi or front also incurs disqualification within the meaning of
Section 3(2) of the Disqualification Act. In paragraphs no.20, 25
and 30 of the judgment, the the Division Bench of this Court has
observed thus:
"20 Reliance is also placed on the case of
Lt.Col. Prithi Pal Singh Bedi Vs. Union of India
{27}
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and others, AIR 1982 SC 1413, wherein it is
observed by the Supreme Court, as under:
"The dominant purpose in construing a
statute is to ascertain the intention of the
Parliament. One of the well recognised
canons of construction is that the
legislature speaks its mind by use of
correct expression and unless there is
any ambiguity in the language of the
provision the Court should adopt literal
construction if it does not lead to an
absurdity. The first question to be posed
is whether there is any ambiguity in the
language used in the provision. If there is
none, it would mean the language used,
speaks the mind of Parliament and there
is no need to look somewhere else to
discover the intention or meaning. If the
literal construction leads to an absurdity,
external aids to construction can be
resorted to. To ascertain the literal
meaning it is equally necessary first to
ascertain the juxtaposition in which the
rule is placed, the purpose for which it is
enacted and the object which it is
required to observe and the authority by
which the rule is framed.
25 The term 'Aghadi' or 'front', we have
seen, has been defined in Section 2(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. Section 3
provides for disqualification on ground of
defection. The same makes it clear that
'Aghadi' or 'front' has been given the same
status as that of a political party. Just as
a councillor or member belonging to a
political party incurs a disqualification by
voluntarily giving up his membership to
such political party, similarly a councilor
{28}
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or a member belonging to an Aghadi or
front incurs a similar disqualification if
he gives up his membership of such
Aghadi or front. Provisions of sub-section
(2) of Section 3 are crucial. The same
provides that a Councillor or a member
who has been elected as an independent
candidate shall be disqualified for being a
councillor or a member if he joins any
political party or Aghadi or front after
such election. Hence, just as a Councillor
or a member, who has been elected as a
member of a political party, aghadi or
front incurs a disqualification if he gives
up his membership of such political
party, aghadi or front, similarly an
independent Councillor or member incurs
a similar disqualification in case he
ceases to be an independent Councillor or
member and joins a political party,
Aghadi or front.
30 The object and reasons for enacting
the Constitution (Fifty-second
Amendment) Act, 1985 and The
Maharashtra Local Authority Members'
Disqualification Act, 1986 are clear. The
same seeks to prevent defection. The
same further prevents independent
members from losing their character as
such and prohibits them from joining a
political party, aghadi or front. If one has
regard to the object that is sought to be
achieved by the above enactments, the
Constitution of an Aghadi by Respondent
Nos.1 to 9 and their joining the same
after abandoning their character of
independent Councillors, in which
capacity they were elected, would
tantamount to their joining the Aghadi
and would squarely fall within the
mischief of section 3(2) of the Act. For
the very same reasons, we are inclined to
hold that the term 'Aghadi' or 'front'
{29}
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would not only include Aghadi or fronts
which had been formed prior to the
holding of elections but would also
include Aghadi or front which has been
formed after the holding of elections.
This interpretation is the only
interpretation which will further the aim
and object of the enactment and will
prevent the mischief sought to be
avoided."
28 The High Court, while dealing with the question
relating to disqualification of independent councillor by application
of provisions of Section 3(2) of the Disqualification Act, took a view
and rightly so, that an independent candidate is required to
maintain his political status as an independent candidate and if he
joins any political party, aghadi or front, such action would attract
penal provisions of Section 3(2) of the Disqualification Act. While
dealing with the issue, in paragraph no.30 of the judgment, the
Division Bench has observed that the term 'Aghadi' or 'front' would
also include post-poll aghadi or front. The view adopted by the
Division Bench shall have to be appreciated in the context of facts
appearing before the Court.
29 The matter was taken further to the Supreme Court by
the Respondents and the Hon'ble Supreme Court has confirmed
the view taken by the Division Bench in respect of interpretation
put to Section 3(2) of the Disqualification Act. The Supreme Court
has observed that:
" ...... A Councillor or a member who has been
elected otherwise than as a candidate set up by
a political party or aghadi or front, such a
candidate or such Councillor or member shall
{30}
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be disqualified for being a Councillor if he joins
any political party or aghadi or front after such
election. The section specifically provides that
an independent candidate not set up by a
political party or front incurs disqualification
on his joining any political party after such
election."
30 Referring to its earlier judgment in the matter of
Kihoto Hollohan Vs. Zachillhu (supra), the Hon'ble Supreme
Court has observed that:
".... While dealing with the effect of the
provisions of the Tenth Schedule to the
Constitution noticed that the same yardstick
has to be applied to a person who is elected as
an independent candidate and wishes to join a
political party after the election as is done with
reference to a person who has been elected on a
political plank. Therefore, no distinction could
be made between a person belonging to a
political party and a person who is elected as
an independent and such distinction has not
been made by the Act in question."
In paragraph no.8 of the judgment in the matter of
Dattatraya Maruti Bawalekar (supra), the Supreme Court has
observed thus:
"8 If what we have stated is the correct legal
position then the counter-affidavit filed by
Bawalekar who is Leader of the Aghadi in
question which we have extracted extensively
earlier will indicate that the appellants were
forming an aghadi as a new party and the same
has to be registered under the provisions of the
Act. When they form a new party the position
is clear that a person elected as an independent
would cease to be an independent and becomes
{31}
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a member of a political party or a front. His
status as an independent will come to an end
on becoming a member of a front or a group, he
loses such status and is subject to the whip of
the party to which we have referred to earlier. If
elected councillors could become members of
such aghadi it is made clear that the aghadi
would be bound by the provisions of the Act in
question and is also authorised to issue a whip.
These facts would make it clear that the
appellants who could act independently prior to
the election or immediately on the election
became subject to the discipline of the party or
front on becoming members thereof. Such
party (sic) whether would amount to formation
of party or became (sic) members of such party
is immaterial. We do not wish to be guided by
or controlled by any etymological terminology
but the substance of the matter. Therefore, in
our view the High Court was justified in holding
that the appellants have incurred
disqualification."
31 It is, thus, clear on consideration of judgment of the
Hon'ble Supreme Court that a candidate elected otherwise than as
a candidate set up by a political party, if he subjects himself to the
discipline of a political party, aghadi or front, his status as an
independent candidate will come to an end, which is prohibited
under the provisions of the Disqualification Act. The Hon'ble
Supreme Court has refused to express any opinion in respect of
etymological terminology, but has looked into substance of the
matter.
32 If facts giving rise to the instant matter are considered,
it must be noticed that the elected councillors belonging to three
different political parties i.e. 9 councillors belonging to NCP party,
2 councilors belonging to BJP and 1 Councillor belonging to
{32}
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Shivsena came together and formed post-poll aghadi / alliance
with a view to set up candidates for election to the posts of
President and Vice President. In terms of definition of Section 2(a),
each of the individual member, who is set up as candidate by a
political party, maintains his allegiance to the said political party.
It is not a case that the candidates were set up for election to a
local authority by the aghadi or front, which, in the instant case, is
a post-poll formation of coalition. What Section 2(a) contemplates
is formation of aghadi or front for setting up candidates for election
to local authority. The term "municipal party" or "Panchayat
Samiti party" or "Zilla Parishad party", as the case may be, refers to
a group consisting of all councillors or members, as the case may
be, for the time being belonging to that political party or aghadi or
front in accordance with the explanation. The explanation
referred to in Section 2(i), 2(l) and 2(p) is explanation to Section 3
of the Act. Section 3 relates to disqualification on the ground of
defection and sub-section (1)(a) of Section 3 records a ground of
voluntarily giving up membership of such political party or aghadi
or front, as a ground for disqualification. The explanation to
Section 3 provides that 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 a
candidate for election as such councillor or member. The reference
to the "elected councillor" or "member" in explanation (a) to Section
3(1) of the Disqualification Act, is to a member belonging to
political party, aghadi or front by which he was set up as a
candidate for election. The councillor or a member belonging to a
municipal party or panchayat samiti party or Zilla Parishad party
shall be deemed to be belonging to political party, aghadi or front,
{33}
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which has set up his or her candidature for such election. The
definition of "aghadi" or "front" recorded in Section 2(a) shall,
therefore, necessarily be read in the context of Section 2(i), 2(l) and
2(p) as well as in reference to explanation (a) to Section 3(1), which
refers to "aghadi" or "front".
33 It must be noticed that the Disqualification Act, more
particularly Section 3 prescribes penal consequences for the acts
or the grounds concerning indiscipline specified in the said Section
and as such, are in the nature of penal provisions. The provisions,
which prescribe a penalty, shall have to be strictly construed to
logical interpretation of the provisions of the Act. There is little
scope to hold that the term "aghadi" or "front", specified in
Section 2(a) would include a post-poll "aghadi" or "front". As has
been recorded above, a distinction will have to be drawn in respect
of political adjustments drawn by political parties coming together
for smooth functioning of the local authority or for carrying out
business of the local authority and the act of indiscipline of
abandonment of the party or aghadi or front which has set up a
candidate at election. As has been held in the matter of
Pandurang Parte (supra) or Dattatraya Bawalekar (supra), that
even an independent candidate is bound to maintain his
independent status and if he subjects himself to a discipline of a
party or aghadi or front, the said act comes within the mischief of
Section 3(2) and penal consequences follow.
34 In the case of Jagjit Singh vs. State of Haryana and
others reported in (2006) 11 SCC 1, petitioner questioned the
order of disqualification passed by the Speaker of the Legislative
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Assembly. Petitioner contested election as a candidate of
Nationalist Congress Party and was the only elected member of the
party in the Assembly. According to petitioner, due to
organisational defficulties and differences with the central
leadership of NCP, the workers and leaders of NCP at Haryana
decided to cause split by passing unanimous resolution. On split,
a new political party namely "Democratic Dal of Haryana" was
formed. Petitioner tendered an application to the Speaker
informing the factum of split and formation of new party.
Respondent no. 3 presented a complaint to the Speaker seeking
disqualification of the petitioner on the ground that he had
voluntarily defected from NCP and joined Democratic Dal of
Haryana. The Speaker allowed the disqualification application.
While dealing with the issue of split, the Supreme Court observed
that in terms of paragraph no.3 of the Schedule X, two conditions
must be complied with : (a) a split in the original political party
giving rise to a faction; and (b) faction is represented by a group
of MLAs in the House which consists of not less than one-third of
the members of such legislature party. The Supreme Court ruled
that the requirement is not the split of local or State wing of the
original political party, or State Legislature party, but is of the split
of the original political party as defined in paragraph 1(c) of
Schedule X read with the Explanation (a) to paragraph 2(1) to the
effect that an elected member of a House shall be deemed to belong
to the political party, if any, by which he was set up as a candidate
for election as such member. The Supreme Court has observed in
paragraph no. 72 of the judgment that in terms of explanation as
given in paragraph 2(1) and from bare reading thereof, it is clear
that the elected member belongs to the political party by which he
{35}
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is set up as a candidate for election as such Member. From the
plain language of these provisions, it cannot be held that for the
purposes of the split, it is the State Legislature party in which split
is to be seen. If a Member is set up by a national party, it would be
no answer to say that events at national level have no concern to
decide whether there is a split or not. In case a member is put up
by a national political party, it is split in that party which is
relevant consideration and not a split of that political party at the
State level.
It would be apt to refer to the judgment of Rajendra
Singh Rana and others Vs. Swami Prasad Maurya and others
reported in (2007) 4 Supreme Court Cases 270. Reiterating the
principles laid down in the matter of Jagjit Singh and Ravi Naik,
the Supreme Court observed that, it is not enough in case of a
split to state that there is split in the original party, in addition to
showing that one third of the members of Legislative party have
also joined together and further, it shall be necessary to prove it
atleast prima facie. Those who have left the party will have prima
facie to show by relevant material that there has been split in the
original party. In paragraph no. 38 of the judgment it is observed
thus :
"Acceptance of the argument that the
legislators are wearing two hats, one as
members of the original political party and
the other as members of the legislature and
it would be sufficient to show that one-third
of the legislators have formed a separate
group to infer a split or to postulate a split in
the original party, would militate against the
specific terms of para 3. That paragraph
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speaks of two requirements, one, a split in
the original party and two, a group
comprising of one-third of the legislators
separating from the legislature party. By
acceding to the two hat theory one of the
limbs of para 3 would be made redundant or
otiose. An interpretation of that nature has
to be avoided to the extent possible. Such an
interpretation is not warranted by the
context. It is also not permissible to assume
that Parliament has used words that are
redundant or meaningless. We, therefore,
overrule the plea that a split in the original
political party need not separately be
established if a split in the legislature party
is shown.
36 Scheme of section 5 of the Disqualification Act which
relates to merger is analogous to scheme of section 4 of said Act
(since deleted). Analysis in regard to section 4 applies to section 5.
As has been recorded earlier the principles laid down in the
judgment relating to the pari materia provisions of Schedule X can
be equally made applicable for providing interpretation on/of the
provisions of the Disqualification Act. In case of split, the
development takes place entirely outside the House. It is
independent of action by the members of the Municipal party
concerned. The merger of a political party outside the House
becomes dependent on the agreement of not less than two third
majority in its municipal party. Section 5 of the Act carves out an
exception to penal consequences provided under section 3 where
the original political party or aghadi or front which the member or
councilor represents, merges with another political party or aghadi
or front and such member or councilor claims that he and any
other member of his political party or aghadi or front or as the
case may be, of a new political party formed by such merger have
{37}
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not accepted the merger and opted to function as separate group
and from the time of such merger, such other political party or new
political party or aghadi or front or group as the case may be shall
be deemed to be political party or aghadi or front to which he
belongs for the purpose of section 3(1). The principles laid down
by the Supreme Court in the matter of Jagjit Singh as well as
Rajendra Singh Rana concerning split essentially apply in case of
merger also. As has been laid down, there cannot be a split only at
the level of Legislative Assembly or the Parliament or the local
party but it is to be atleast prima facie demonstrated that there is
split in the original political party. In similar fashion, the merger
cannot be only at the level of Municipal Party, Panchayat Samiti
Party or Zilla Parishad Party, however, it is to be demonstrated that
there is merger in relation to the original political party or aghadi
or front and a new political party has been formed by such merger
or that the members have not accepted the merger and opted to
function as a separate group. Section 5(2) makes it clear that for
the purpose of sub-section 1, the merger of original political party
or aghadi or front of a councilor or as the case may be, a member,
shall be deemed to have taken place if and only if not less than two
third of the members of the Municipal Party or Zilla Parishad Party
or as the case may be, Panchayat Samiti Party, concerned have
agreed to such merger. On bare reading of section 5(2) it is clear
that merger of original political party or aghadi or front is within
contemplation and further agreement of not less than two third of
the members of the Municipal Party, Zilla Parishad Party or as the
case may be, Panchayat Samiti party, is essential. The term
'original political party' shall have to be construed as defined in
section 2(j) of the Disqualification Act to mean the political party
{38}
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which has proposed candidature of such member or the councillor.
Section 2(j) which defines "original political party" makes reference
to section 3(1). Original political party, with reference to section
3(1), is the political party which has set up candidature of the
councillor or the member, as the case may be. Such interpretation
emerges on consideration of explanation (a) to section 3(1).
Explanation to section 3(1) which lays down that a person elected
as a councilor 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 a candidate for election as such councilor or
member.
37 At this juncture, it would be convenient to refer to the
provisions relating to "split" and "merger". The provision
concerning "split" in Section 4 of the Disqualification Act has been
deleted by Maharashtra Act No.50 of 2006. Section 5 of the
Disqualification Act carves out "merger" of the original political
party, aghadi or front with another political party, aghadi or front,
as an exception to Section 3 prescribing penal consequences of
disqualification on the ground of defection. Section 4 defined the
term "split" prior to its deletion and Section 4 of the
Disqualification Act, 1986, read thus:
Section 4.(1)
Where a councillor, or as the
case may be, a member makes a claim that he
and any other member of the municipal party,
Zilla Parishad party, or as the case may be, the
Panchayat SamIiti party, constitute the group
representing a faction which has arisen as a
result of a split in his original political party or
aghadi or front and where the total strength of
the councillors or, as the case may be,
{39}
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members--
(A) does not exceed twenty and such group
consists of one-half, or
(B) exceeds twenty and such group consists
of one-third,
of the councillors of such municipal party,
Zilla Parishad party, or as the case may be, the
members of such Panchayat Samiti party--
(a) he shall not be disqualified under sub-
section (1) of section 3 on the ground--
(i)
that he has voluntarily given up
membership of his original political party or
aghadi or front or;
(ii) that he has voted or abstained from
voting in the meeting of such Municipal
Corporation, Municipal Council, Zilla Parishad
or as the case may be, Panchayat Samiti,
contrary to any direction issued by such party
or aghadi or front or by any person or authority
authorised by any of them in that behalf
without obtaining the prior permission of such
party, aghadi, front, person or authority and
such voting or abstention has not been
condoned by such party, aghadi, front, person
or authority within fifteen days from the date of
such voting or abstention; and
(b) from the time of such split, such faction
shall be deemed to be the political party or
aghadi or front to which, he belongs for the
purposes of sub-section (1) of section 3 and to
be his original political party or aghadi or front
for the purposes of this section.
(2) Notwithstanding anything contained in
sub-section (1), a councillor or, as the case may
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be, member shall be precluded from making
such a claim as referred to in sub-section (1) for
more than once during his term of office under
the relevant municipal law or, as the case may
be, the Maharashtra Zilla Parishads and
Panchayat Samitis Act, 1961.
38 Relying on the judgment in the matter of Parshuram
(supra), it is contended by Respondents that the reference to
"original political party" in Section 4 (prior to its deletion) 'shall
necessarily mean, "municipal party" "panchayat samiti party" or
"zilla parishad party", as the case may be'. In the matter of
Parshuram (supra), it is laid down that, a split in the original
political party cannot be stretched to mean split in the political
party at any other level. However, the expression "original political
party" would necessarily mean "Zilla Parishad party" in the House
of Zilla Parishad, or its Council, as the case may be. The Division
Bench, in paragraph nos.9 and 13 of the judgment, has observed
thus:
"9 The connotation of expression "a group"
representing a faction which has arisen as a
result of a split in his "original party" cannot be
interpreted to refer vertical split of the original
party on national level. We are of the opinion
that such an interpretation of sub-clause (1) is
likely to lead to anomalous position. It will be
absurd to expect vertical split of the party on
national level for the purpose of giving
recognition to a faction which has segregated
itself from the original political party at a Zilla
Parishad of a District. We cannot ignore
intention of the legislature while drafting sub-
clause (1) of section 4 of the Disqualification
Act. The State Legislature cannot determine
question of disqualification having impact on
national level, which will amount to enactment
{41}
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pertaining to extra territorial jurisdiction and
may result into anomaly. For example, in one
State such a faction may not incur
disqualification in spite of split in the original
party at national level as per the local law
prevailing in that State yet disqualification may
be incurred by similarly placed members of
group in another State like Maharashtra. The
expression "as a result of split in his original
political party" will have to be interpreted in
such a way that the sub-clause (1) is made
workable. In our considered opinion, this
expression in its proper connotation will have to
mean as a split in the original political party at
the Zilla Parishad level and it cannot be
stretched to mean split in the political party at
any other level. The expression "original party"
will necessarily mean "Zilla Parishad party" in
the House of Zilla Parishad, or its Council, as
the case may be. We are inclined, therefore, to
reject contention of the learned Counsel for
petitioners in this context.
13 Relying upon certain observations in case
of Mayawati Vs. Markandeya Chand and others
(1998) 7 SCC 517, it is vehemently argued that
for recognition to the group of respondent Nos.
1 to 28 as a separate faction, it is necessary to
satisfy the following requirements:
(I) A split in the original political party giving
rise to a faction.,
(II) The faction is represented by a group of
the elected Zilla Parishad members in the
House.,
(III) Such group consists of not less than one
third of the members of the legislature party to
which they belong.
The Apex Court has observed:
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"For the purpose of that para, (para 3 of the
Tenth Schedule), all the three conditions must
be fulfilled. It is not sufficient if more than
1/3rd members of a legislature party form a
separate group and give to themselves a
different name without there being a split in the
original political party. Thus the factum of split
in the original party and the number of
members in the "group" exceeding 1/3rd of the
members of the legislature party are the
conditions to be proved."
As stated hereinbefore the connotation "original
party" means "Zilla Parishad Party" under the
Local Laws. In the present case, there is a split
in the original political party, namely, Shivsena
party in Zilla Parishad which gave rise to
separation of a group and hence faction of the
respondent Nos.1 to 28 came into existence.
This faction is represented in the House of Zilla
Parishad and respondent No.14 their leader.
They formed more than 1/3rd of the total
number of election members in the Zilla
Parishad. We do not find that the authority in
the case of Mayawati (supra) is of any
assistance to the case in hand. On the other
hand, it has been observed:
"When the Tenth Schedule has expressly
constituted the Speaker or the Chairman as the
case may be to decide the question of
disqualification and attach finality thereto, it is
not for this Court to consider the facts and
decide the said question by substituting itself in
the place of the Speaker. If the order of the
Speaker is set aside on any of the grounds
mentioned in the Hollohan by exercising the
power of limited judicial review, the
consequential course to be adopted is to leave
the matter to the Speaker to decide afresh in
accordance with law."
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39 Although the Division Bench has referred to a
judgment in the matter of Mayawati Vs. Markandeya Chand &
others, reported in (1998) 7 SCC 517, it is observed that the said
judgment is of little assistance to the case in hand. The Division
Bench appears to have misappreciated the decision of the Supreme
Court in the case of Mayawati (supra). The facts giving rise to the
decision of the Supreme Court, in the matter of Mayawati (supra),
can be stated in nutshell, thus:
40 Elections were held to the Uttar Pradesh Vidhan Sabha
(Legislative Assembly) in the year 1996 resulting in hung
Assembly, as no political party secured absolute majority. The
appellant, with the support of MLAs belonging to Bhartiya Janata
Party, became the Chief Minister of the State. However, she
demitted the office on 29.09.1997. On the next day, leader of BJP
Legislative party became the Chief Minister on the assumption that
Bahujan Samaj Party (BSP) would support him. But, contrary to
the said assumption, BSP withdrew the support to Kalyan Singh
Government on 17.10.1997. Mr. Kalyan Singh was, therefore,
directed by the Hon'ble Governor to prove that he enjoys support of
the majority MLAs in the Assembly. The appellant Ms. Mayawati
issued a whip to all the MLAs of her party on 20.10.1997, directing
them to remain present in the session of the U.P. Legislative
Assembly on 21.10.1997 and to vote against the motion of
confidence moved by the BJP Government. It further transpires
that on 21.10.1997, twelve BSP MLAs crossed the floor of the House
in the Legislative Assembly of the State and voted in favour of the
motion of confidence. Soon thereafter all those twelve MLAs were
made Ministers in the State Cabinet headed by Chief Minister
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Mr.Kalyan Singh. The appellant, who is the leader of the BSP
Legislature Party, filed a petition before the Speaker that the twelve
MLAs had incurred disqualification for membership of the
Assembly. The Speaker of the Assembly exonerated the twelve
MLAs from the tentacles of disqualification envisaged in the Tenth
Schedule to the Constitution of India. A defence was raised by the
twelve MLAs in respect of split in the BSP party on 21.10.1997 that
they, along with some other MLAs, formed a group representing
faction consisting of 1/3rd of the members of the legislature party.
The Hon'ble Supreme Court, at the conclusion of the hearing,
ruled that the finding of the Speaker that a split arose in the BSP,
is vitiated by perversity. The corollary of it is that the twelve
respondents (MLAs), who had defected their party (BSP) on the
said date, cannot escape consequences of Paragraph 6(1) of the
Tenth Schedule of the Constitution. While dealing with the
argument that the expression "political party" in sub-para (b) of
para (2) means, "political party in the House" i.e. Legislature party,
runs counter to the definition contained in Para 1(c) of the Tenth
Schedule. The Hon'ble Supreme Court has observed that, "original
political party" in relation to a member of a House, means the
political party to which he belongs for the purpose of sub-para (1)
of para 2 i.e. the political party, which has set up his candidature
at the elections. The observations of the Supreme Court, in
paragraphs no.70 to 72 are relevant for consideration. Those read
as under:
70 The argument of the appellant is that
the expression "political party" in sub-para (b)
means "political party in the House", in other
words, the "legislature party". This argument
runs counter to the definition contained in
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Para 1(c). According to that definition,
"original political party" in relation to a
member of a House, means the political party
to which he belongs for the purposes of sub-
para (1) of Para 2. The expression "original
political party" is used in Para 3 only. Para 2
does not at all use the expression "original
political party" in Para 2(1). The definition
clause in Para 1(c) does not make any
distinction between sub-para (a) and sub-para
(b) of Para 2. But the appellant's counsel
wants to make such a distinction. According
to him "political party" in sub-para (a) would
refer to "original political party" but the same
expression in sub-para (b) would refer only to
the "legislature party". The term "legislature
party" having been defined in Para 1(b) could
well have been used in Para 2(1)(b) instead of
the term "political party" if the intention of
Parliament was to refer only to the legislature
party.
71 There is another feature in Para 3(b)
which negatives the appellant's argument.
According to Para 3(b), from the time of the
split in the original political party such as the
one referred to in the first part of the para, the
faction referred to therein shall be deemed to
be the political party to which the member
concerned belongs for the purposes of sub-
para (1) of Para 2 and to be his original
political party for the purposes of Para 3. The
entire sub-para (1) of Para 2 is referred to
therein meaning thereby both clauses (a) and
(b) of sub-para (1) and no distinction is made
between the two clauses. Hence for the
purposes of clause (a) as well as clause (b), the
faction referred to in the first part of Para 3
shall be deemed to be the "political party"
mentioned in the sub-para and the same
faction shall be deemed to be the original
"political party" mentioned in Para 3. It is
thus clear that "political party" in clause (b) of
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sub-para (1) of para 2 is none other than
"original political party" mentioned in Para 3.
72 The argument that the context in Para
2(1)(b) requires to equate "political party" with
"legislature party" even though the definition
clause reads differently is not acceptable. A
reading of sub-para (b) and the explanation in
Para 2(1) places the matter beyond doubt that
the "political party" in sub-para (b) refers to
the "original political party" only and not to
the legislature party. According to the
explanation, for the purpose of the entire sub-
para, an elected member of the House shall be
deemed to belong to the political party, if any,
by which he was set up as a candidate for
election as such member. Certainly, the
legislature party could not have set up the
member concerned as a candidate for election.
41 In view of the decision of the Apex Court, in the matter
of Mayawati (supra), the view taken by the Division Bench in the
matter of Parshuram (supra) cannot be accepted as proposition of
law, providing interpretation of the term "municipal party",
"panchayat samiti" party or "zilla parishad" party, as the case may
be.
42 The Division Bench judgment in the matter of Umesh
Shrikant Shetye Vs. Collector, Ratnagiri and others, reported in
2009 (6) Mh.L.J. 209, has been relied upon, to contend that the
party, aghadi or front, after the merger becomes the original
political party and once it becomes the original political party, then
subject to section 5, the member would not stand disqualified
under section 3(1) and that the Legislature itself had intended in
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certain circumstances when a member of a Municipal Party, Zilla
Parishad party or Panchayat Samiti Party could not change political
horses twice. There is, however, a specific exclusion in section 5.
If the merger is in terms of section 5, then the new political party
or remainder of the political party, aghadi or front becomes the
original political party and the provisions of disqualification under
the Act will not apply to such merger. Therefore, there can be a
second merger subject to the provisions of Section 5(2) of the
Disqualification Act.
The judgment of the Division Bench has to be tested on
the touchstone of the principles laid down by the Supreme Court
in the matter of Jagjit Singh Vs. State of Haryana and others,
reported in (2006) 11 SCC 1 and in the matter of Rajendra Singh
Rana and others Vs. Swami Prasad Maurya and others, reported
in (2007) 4 SCC 270. Although aforesaid judgments relate to split,
the principle, referrable to split, equally applies to merger. Tested
on the touchstone the principle laid down by the Supreme Court in
the above referred two judgments, reliance placed on the judgment
of Umesh (supra), to contend that original political party, referred
to in Section 5 is the municipal party or panchayat samiti party or
zilla parishad party, is not acceptable.
44 In the matter of Kedar Shashikant Deshpande &
others Vs. Bhor Municipal Council and others, reported in
(2011) 2 SCC 654, also, the Hon'ble Supreme Court, in paragraph
65 of the judgment, has observed thus:
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"Section 5 speaks of merger of original political
party and the natural corollary thereof is that
merger of municipal party or panchayat samiti
or zilla parishad party is not within
contemplation of Section 5 of the
Disqualification Act."
Section 63(2B) of the Municipalities Act:
45 It is argued on behalf of respondents, by referring to
Section 63 (2B) of the Maharashtra Municipal Councils, Nagar
Panchayats & Industrial Townships Act, 1965 (hereinafter referred
to as 'the Municipalities Act'), that formation of post-poll aghadi is
permissible and if such aghadi is formed within the period
stipulated under the second proviso to Section 63(2B) i.e. within
the period of one month from the date of notification of the election
results and on its registration, provisions of the said Act i.e.
Disqualification Act shall apply to the members of such aghadi or
front as if it is a pre-poll aghadi or front. Section 63(2B) of the
Municipalities Act, reads thus:
Section 63. Constitution of Subjects
Committees of 'A' and 'B' Class Councils
[(2B) In nominating the Councilors, the
Collector shall take into account the relative
strength of recognised parties or registered
parties or registered parties or groups and
nominate members, as nearly as may be, in
proportion to the strength of such parties or
groups in the Council after consulting the
leader of each such party or group:
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[Provided that, the relative strength of
the recognised parties or registered parties or
groups or aghadi or front shall be calculated
by first dividing the the total number of
Councillors by the total strength of members
of the Committee. The number of Councillors
of the recognised parties or registered parties
or groups or aghadi or front shall be further
divided by the quotient of this division. The
figures so arrived at shall be the relative
strength of the respective recognised parties or
registered parties or groups or aghadi or front.
The seats shall be allotted to the recognised
parties or registered parties or groups or
aghadi or front by first considering the whole
number of their respective relative strength so
ascertained. After allotting the seats in this
manner, if one or more seats remain to be
allotted, the same shall be allotted one each to
the recognised parties or registered parties or
groups or aghadi or front in the descending
order of the fraction number in the respective
relative strength starting from the highest
fraction number in the relative strength, till all
the seats are allotted:].
Provided further that, for the purpose of
deciding the relative strength of the recognised
parties or registered parties or groups, under
this sub-section, the recognised parties or
registered parties or groups, or elected
Councillor not belonging to any such party or
group may, notwithstanding anything
contained, in the Maharashtra Local Authority
Members' Disqualification Act, 1966 (Mah. XX
of 1987), within a period of not more than one
month from the date of notification of election
results, form the aghadi or front and, on its
registration, the provisions of the said Act
shall apply to the members of such aghadi or
front, as if it is a pre-poll aghadi or front.
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46 The provisions of Section 63(2B) are pari materia to
Section 31A(2) of the Bombay Provincial Municipal Corporations
Act. Section 63 of the Municipalities Act is included in Chapter III
which relates to duties and functions of the Council and the
Municipal Executive. Part (4) of Chapter III refers to 'Committees'
which includes Sections 62 to 73. Section 63 relates to
constitution of Subjects Committees of 'A' and 'B' Class Councils.
Whereas, sub-section (2B) of Section 63 prescribes procedure for
nominating councillors. It is laid down that in nominating
councillors, the Collector shall take into account the relative
strength of recognised parties or registered parties or groups and
nominate members, as nearly as may be, in proportion to the
strength of such parties or groups in the Council after consulting
the leader of each such party or group. The methodology of
calculating relative strength of the parties is provided in first
proviso, whereas, second proviso provides relaxation to the
recognised parties or registered parties or groups, or elected
councillor not belonging to any such party or group may,
notwithstanding anything contained in the Disqualification Act, to
form aghadi or front within one month from the date of notification
of election results and, on its registration as aghadi or front, the
provisions of the Disqualification Act shall apply to the members of
such aghadi or front, as if it is a pre-poll aghadi or front.
47 It has been argued, placing reliance on the second
proviso to sub-section (2B) of Section 63 that in spite of definition
recorded in Section 2(a) of the Disqualification Act, contemplating
pre-poll aghadi or front, there is liberty available to the elected
members set up by the recognised parties or registered parties or
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groups not belonging to any such party or group to come together
and form aghadi or front within one month from the date of
declaration of results. It is further argued that the registration of
such group or aghadi is also permissible and on such registration,
provisions of Disqualification Act are made applicable as if the
aghadi or front is pre-poll aghadi or front. It is also contended
that the non obstante clause contained in the second proviso shall
have to be read in such manner that the provisions contained in
the second proviso shall prevail over the provisions of the
Disqualification Act.
Sub-section (2B) of Section 63 relates to nomination of
councillors on the Committees and the Collector is required to take
into account the relative strength of recognised parties or
registered parties or groups and nominate the members. It can,
thus, be safely stated that the purpose of the proviso which
provides for formation of aghadi or front within one month after
the date of declaration of result of elections is to secure proper
representation on the Sub-Committees. The object of making
provision for formation of aghadi or front of the recognised parties
or registered parties or groups is only for securing proper
representation to the Committees.
49 An identical provision finds place in Section 31A of the
Bombay Provincial Municipal Corporation Act, 1949, which has
fallen for interpretation in the matter of Vasant Nivrutti Gite &
another Vs. Municipal Corporation of City of Nashik, 2007 (4) )
MhLJ 871. The statement appended to the Ordinance, which
provided for identical provision, is reproduced in para 5 of the
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judgment, which reads thus:
"3 To ensure that all the recognised parties
and groups in the Corporation are adequately
represented in the Committees constituted
under the Corporations Acts, the Government
considers it expedient to amend these Acts to
provide for the nomination of members of the
Committees in proportion to the strength of the
political parties of groups in the Corporation."
It is recorded by the Division Bench in para 5 of the
judgment thus,
"....... It is open to the recognised parties or
registered parties or independent councillors,
not belonging to any such party or group,
notwithstanding anything contained in the
Maharashtra Local Authority Members'
Disqualification Act, 1986 within a period of one
month from the date of notification of election
results to form an aghadi or front and on its
registration, the provision of the said Act shall
apply to the members of such aghadi or front,
as if it is a registered pre poll aghadi or front.
In other words, recognised or registered political
parties can also come together. They can also
come together with independents or
independents themselves can come together
and form aghadi or group as set out therein in
which event such Aghadi or group depending
upon their relative strength would also be
entitled to nominate councillors on the
committees. There can be different
permutations and combinations. It is therefore,
open to the various parties as well as
independents to come together.
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Opening words of the second proviso to Section 63 (2B)
read as under:
"for the purpose of deciding the relative
strength of the recognised parties or registered
parties or groups under this sub-section ..."
50 Thus, the scope and ambit of second proviso is limited
to the extent of and only for the purpose of nomination of
councillors on the Committees. These words in the second proviso
leave no room for doubt that it is only for the limited purpose of
enabling such aghadi to secure proper representation on various
categories of committees specified in Section 63. The formation of
aghadi or group in terms of Section 63(2B) is totally irrelevant and
inconsequential for the purposes of election of President under
Section 51 as also election of Vice President under Section 51A.
Schematically, section 63 is placed in Chapter III which comprises
the provisions of Sections 49 to 73. These provisions deal with
duties and functions of the Council and Municipal Executive.
Whereas, Part (4) of Chapter III is titled as 'Committees'. This Part
(4) is consisting of Sections 62 to 73. Section 62 enumerates
Statutory Committees i.e. Standing Committees and other six
Subjects Committees specified therein. The proviso to Section
63(2B) would not be able to travel beyond the scope of substantive
portion of Section 63 itself.
51 As has been stated above, the aghadi or front in terms
of second proviso to Section 63 (2B) is confined only to formation of
Subjects Committees and has no relevance in the context of
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election to the office of President and Vice President, since special
meeting is required to be convened for constitution of Subjects
Committees only after the elections to the office of President and
Vice President. The aghadi or front specified under Section 2(a) of
the Disqualification Act provides that "aghadi" or "front" means a
group of persons who have formed themselves into a party for the
purpose of setting up candidates for election to a local authority
i.e. a pre-poll aghadi and not post-poll aghadi. The elections to the
Council are outside the provisions of Section 63(2B) and elections
to the Subjects Committees are required to be held after elections
to the post of President and Vice President. The formation of such
aghadi, as specified within meaning of second proviso to Section
63(2B) has no relevance to the general elections or the elections to
the office of President and Vice President and is, thus, confined to
the elections of Subjects Committees. The section itself deals with
elections to the Subject Committees and considering language of
the proviso, it is difficult to accept that post-poll aghadi, as
permitted under Section 63 (2B) travels beyond the scope of the
section and has no relevance in respect of any other elections.
52 The Disqualification Act is enacted with an object for
providing disqualification of members on the ground of defection
and its structure is based on the Tenth Schedule of the
Constitution. The principle generalia specialibus non-derogant is
applicable in the present case. The municipal law is a general law
relating to administration of Municipalities, including Maharashtra
Municipalities Act, whereas, Disqualification Act, is a special law
dealing with the subject of disqualification of members of the local
authorities on the grounds specified therein. There are certain
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distinguishing features which can be serialised as below:
Distinguishing Features
The component original political parties or
formation of aghadi or front, as permitted under
the second proviso to Section 63(2B), the status
of members or councillors belonging to original
parties or independent councillors is not lost
and their original status do not merge with
aghadi or front nor such aghadi or front bring
into existence a new political party within
meaning of Section 2(a) of the Disqualification
Act.
Such aghadi within contemplation of
second proviso to Section 63(2B) does not
amount to merger of component parties or
individual members within meaning of Section
5 of the Disqualification Act.
The purpose of the second proviso to
Section 63(2B) is not to nullify or to dilute the
rigour and/or vigour of the substantive
legislation i.e. the Disqualification Act, 1986. It
is not intended to reduce the provisions of
Section 3 of Disqualification Act to a Dead
Letter.
53 At this juncture, a reference can be made to the
judgment in the matter of Jeevan Chandrabhan Idnani and
another Vs. Divisional Commissioner, Konkan Bhawan &
others, reported in (2012) 2 SCC 794. Placing reliance on the
judgment, it is contended by Respondents that once an aghadi is
registered, by a legal fiction created under the proviso, such an
aghadi is treated as if a pre-poll aghadi and the provisions of the
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Disqualification Act apply to the members of such post-poll
aghadi. The Supreme Court was concerned with the interpretation
of second proviso to Section 31-A(2) of the Bombay Provincial
Municipal Corporations Act, 1949, which is parimateria to the
second proviso to Section 63(2B) of the Municipalities Act. The
petitioner, before the Supreme Court, raised challenge to the
decision of the High Court dismissing a writ petition presented by
the petitioner questioning action of registration of post-poll aghadi
or front taking recourse to Section 31A of the Corporations Act.
Respondents No.6 to 13, before the Supreme Court, who earlier
joined hands with other councillors of Lok Bharti Party and formed
an aghadi immediately after election availing facility under the
provisions of second proviso to Section 31A of the Municipal
Corporations Act, decided to quit the aghadi and formed a
"Swatantar Aghadi" and addressed a letter on 23.02.2011 to the
Divisional Commissioner requesting for recording the change. Two
of the councillors objected to the communication accepting request
made by Respondents No.6 to 13 by the Divisional Commissioner
by presenting writ petition to the High Court, which came to be
dismissed. While dealing with the challenge, the Supreme Court
considered provisions of the Disqualification Act vis-a-vis the
provision contained in Section 31-A(2) of the Municipal
Corporations Act. It is observed in paragraphs no.26 and 27 of the
judgment, thus:
"26 The second proviso to sub-section (2) of
Section 31-A enables the formation of an aghadi
or front within a period of one month from the
date of notification of the election results. Such
an aghadi or front can be formed by various
possible combinations of Councillors belonging
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to either two or more registered parties or
recognised parties or independent Councillors.
The proviso categorically stipulates that such a
formation of an "aghadi" or "front" is possible
notwithstanding anything contained in the
Disqualification Act. Because as "aghadi" or
"front" as defined under the Disqualification
Act, clearly, can only be the combination of a
group of persons forming themselves into a
party prior to the election for setting up
candidates at an election to a local authority
but not a combination of political parties or
political parties and individuals."
27 Therefore, the second proviso to Section
31-A(2) of the Municipal Corporations Act
which is a later expression of the will of the
sovereign, in contrast to the stipulation as
contained under Sections 2(a) and 3(2) of the
Disqualification Act, would enable the
formation of post-electoral aghadis or fronts.
However, such a formation is only meant for a
limited purpose of enabling such aghadis to
secure better representation in the various
categories of the Committees specified under
Section 31-A. The component parties or
individual independent Councillors, as the case
may be, in the case of a given front/aghadi do
not lose their political identity and merge into
the aghadi/front or bring into existence a new
political party. There is no merger such as the
one contemplated under Section 5 of the
Disqualification Act. It is further apparent from
the language of the second proviso that on the
formation of such an aghadi or front, the same
is required to be registered. The procedure for
such registration is contained in the
Maharashtra Local Authority Members'
Disqualification Rules, 1987."
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54 In paragraph no.28 of the judgment, although the
Supreme Court has observed that once such an aghadi is
registered under Section 31-A (2) by a legal fiction created under
the proviso, such an aghadi is treated as if it were a pre-poll
aghadi or front and the provisions of Disqualification Act apply to
the members of such post-poll aghadi. However, the Supreme
Court has refused to examine legal consequences of such a
declaration.
55 On conjoint reading of paragraphs no.26 and 27 of the
judgment in Jeevan Idnani's matter (supra), an irresistible
conclusion has to be drawn that the formation of an aghadi under
the provisions of second proviso to Section 31-A(2) is only for the
limited purpose of enabling such aghadis to secure better
representation in the various categories of the Committees
specified under Section 31-A. The component parties or
independent councillors, as the case may be, in the case of a given
front/aghadi do not lose their political identity and merge into
aghadi or front or bring into existence a new political party. There
is no merger, as contemplated under Section 5 of the
Disqualification Act. It is, thus, clear that formation of such an
aghadi or front is for the purposes of securing better
representation in the various categories of the Committees
specified therein and it cannot be equated with an aghadi or front
under Section 2(a) for the purposes of invocation of the provisions
of the Disqualification Act.
56 Reference needs to be made to sub-sections (1) and (2)
of Section 10 of the Disqualification Act, which provide thus:
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10(1) The provisions of this Act and the rules
shall have effect notwithstanding anything
inconsistent therewith contained in any other
law for the time being in force.
(2) Subject to the provisions of sub-section
(1), the provisions of this Act shall be in
addition to and shall not, save as expressly
provided hereinbefore, be in derogation of the
provisions of any law relating to Municipal
Corporation, Municipal Council or other local
authority concerned.
It is strenuously contended by the Respondents that
second proviso to Section 63 (2B) of the Municipalities Act will have
a precedence since it specifically prescribes that the provision shall
have an effect notwithstanding contained in the Disqualification
Act, 1986 (Mah. XX of 1987).
Interpretation of Statute:
58 It shall be noted that there is no inconsistency or
repugnancy in the provisions of Disqualification Act as against
provisions of second proviso to Section 63(2B) of the Municipalities
Act. Both the provisos operate in different field. Even otherwise,
Disqualification Act is a special enactment governing the field of
Disqualification of elected representatives of the local authority.
Whereas, the Municipalities Act is a general law providing for the
constitution, administration and powers of Municipalities. It also
shall be taken note of that apart from provisions of the
Disqualification Act, the Municipal Act itself provides for
Disqualification under Section 63(1), 44 and 45. Thus, provisions
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of the Disqualification Act are in addition and not in derogation of
Municipalities Act. Disqualification Act is structured on the lines
of Tenth Schedule of the Constitution by 52 nd Amendment, 1985
and occupies a limited field concerning defection of the elected
representatives and provides for remedial measures and penalties.
The immunity under second proviso is an immunity for limited
purpose providing for stability to the aghadi/front or else it would
have resulted in creating instability on account of defection. It
shall also have to be considered that when the field is occupied by
a special legislation enacted by a competent legislature and the
same legislature subsequently enacts another law which is of a
general nature, the general legislation cannot be taken to have
displaced the special law which is in operation unless there is a
specific provision made in the subsequent general law to that
effect. In such a situation, the special law which occupies the field
does not get displaced merely by implication. The legislature, being
the same, would be aware while enacting the subsequent general
legislation, that it has already enacted a special law and it is that
law which occupies the field, therefore, if its intention is to displace
that special law, it would specifically say so. In this respect,
reference can be made to a judgment in the case of Narendra
Kantilal Shah Vs. Joint Registrar Co-operative Societies
(Appeal) Bombay and others, reported in 2004(1) Mh.L.J. 704.
In paragraph no.31 of the judgment, it is observed thus:
"31 Now, so far as the provisions of section
84 of the 2002 Act are concerned, it is clear
from what has been observed above that when
the 1993 Act was enacted as also in 1999
when that Act became operative in the region
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with which we are concerned, though 1984
Multi-State Co-operative Societies Act was in
force, section 74 of that Act which provided
remedy was inoperative having been stayed by
this Court, therefore the provisions of the 1993
Act will occupy the field and therefore when
the 2002 Act was enacted by the Parliament.
The 2002 Act being essentially a general
statute as compared to the 1993 Act, unless
the 2002 Act makes a special exception, the
provisions of section 84 of the 2002 Act will
not operate to oust the 1993 Act from the field
which is occupied by it. It may be,
incidentally, mentioned here that so far sub-
section (1) of section 84 of the 2002 Act is
concerned, it is identical to sub-section (1) of
section 74 of the 1984 Act. Had section 74 of
the 1984 Act been in force in 1999, it is 1993
Act which would have operated being a special
law. In our opinion, therefore, the enactment
of section 84 in the 2002 Act will not make any
material difference. When the field is occupied
by a special legislation enacted by a competent
legislature and the same legislature
subsequently enacts another law which is of
general nature, the general legislation cannot
be taken to have displaced the special law
which is in operation unless there is a specific
provision made in the subsequent general law
to that effect. In such a situation, the special
law which occupies the field does not get
displaced merely by implication. The
legislature being the same would be aware,
while enacting the subsequent general
legislation that it has already enacted a special
law and it is that law which occupies the field,
therefore, if it is its intention to displace that
special law it would specifically say so. In
these circumstances, therefore, in our opinion,
in the absence of any specific provision in the
2002 Act, excluding the operation of the 1993
Act which was in operation, in relation to Bank
registered under the 2002 Act, it is the 1993
Act and not the 2002 Act which would
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operate."
59 A reference can also be made to the judgment of the
Apex Court in the matter of Union of India and others Vs. Dileep
Kumar Singh, reported in (2015) 4 Supreme Court Cases 421. In
paragraph no.16 of the judgment, the Apex Court has observed
thus:
"16 It is well settled that the provisions of a
statute must be read harmoniously together.
However, if this is not possible then it is settled
law that where there is a conflict between two
sections, and you cannot reconcile the two,
you have to determine which is the leading
provision and which the subordinate provision,
and which must give way to the other. This
statement of the law is to be found in Institute
of Patent Agents v. Lockwood, AC at p. 360.
Lord Herschell, L.C., stated this, as follows:
"... Well, there is a conflict
sometimes between two sections to be
found in the same Act. You have to try
and reconcile them as best you may. If
you cannot, you have to determine which
is the leading provision and which the
subordinate provision, and which must
give way to the other."
60 Firstly, there is no conflict between the provisions of
the Disqualification Act and the Municipalities Act. Even
otherwise, since the field relating to Disqualification concerning
disqualification of members of the local authorities is occupied by
the special legislation, the general law i.e. the Municipalities Act
shall give way to the special law. It also must be stated that
provisions of the Disqualification Act are in addition to and not in
derogation to the provisions of other law i.e. Municipalities Act.
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61 A statute must be interpreted having regard to the
purport and object of the Act. The doctrine of purposive
construction must be resorted to. It would not be permissible for
the Court to construe the provisions in such a manner which
would destroy the very purpose for which the same was enacted.
The principles in regard to the approach of the Court in
interpreting the provisions of a statute with the change in the
societal condition must also be borne in mind. The rules of
purposive construction have to be resorted to which would require
the construction of the Act in such a manner so as to see that the
object of the Act is fulfilled.
62 It would be appropriate to refer to the observations of
the Supreme Court in the matter of Yakub Abdul Razak Memon
Vs. State of Maharashtra, reported in (2013) 13 SCC 1. The Apex
Court, in paragraphs no.1518 and 1520, has observed thus:
"1518 The principle that the latter Act
would prevail the earlier Act has consistently
been held to be subject to the exception that a
general provision does not derogate from a
special one. It means that where the literal
meaning of the general enactment covers a
situation for which specific provision is made by
another enactment contained in the earlier Act,
it would be presumed that the situation was
intended to continue to be dealt with by the
specific provision rather than the later general
one.
1520 It is a settled legal proposition that
while passing a special Act, the legislature
devotes its entire consideration to a peculiar
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subject. Therefore, when a general Act is
subsequently passed, it is logical to presume
that the legislature has not repealed or modified
the former special Act unless an inference may
be drawn from the language of the special Act
itself."
63 While interpreting second proviso to Section 63(2B) of
the Municipalities Act, the principle that, the normal function of a
proviso is generally, to provide for an exception i.e. exception of
something that is outside the ambit of the usual intention of the
enactment, or to qualify something enacted therein, which, but for
the proviso would be within the purview of such enactment, has to
be borne in mind. Usually, a proviso cannot be interpreted as a
general rule that has been provided for. Nor it can be interpreted in
a manner that would nullify the enactment, or take away in
entirety, a right that has been conferred by the statute. In case, the
language of the main enactment is clear and unambiguous, a
proviso can have no repercussion on the interpretation of the main
enactment, so as to exclude by implication, what clearly falls
within its express terms. If, upon plain and fair construction, the
main provision is clear, a proviso cannot expand or limit its ambit
and scope.
64 In the instant matter, Section 63 of the Municipalities
Act deals with the constitution of Subject Committees, so also the
second proviso to Section 63(2B) opens with the words, "provided
further that, for the purpose of deciding the relative strength of the
recognised parties or registered parties or groups, under this sub-
section" itself limits scope of the proviso. By application of
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principle of liberal interpretation, it would not be permissible to
expand ambit and scope of the proviso. The proviso to a
particular provision of a statute only embraces the field which is
covered by the main provision.
65 Referring to a judgment in the matter of
Commissioner of Income Tax, Mysore, Travancore, Cochin
and Coorg, Bangalore, Vs. Indo Mercantile Bank Limited,
reported in 1959 AIR (SC) 713 = 1959 DGLS (Soft.) 23, where it is
pointed out that the proper function of a proviso is that it qualifies
the generality of the main enactment, by providing an exception
and taking out as it were, from the main enactment, a portion
which, but for the proviso would fall within the main enactment.
Ordinarily it is foreign to the proper function of a proviso to read it
as providing something by way of an addendum or dealing with a
subject which is foreign to the main enactment. It is a
fundamental rule of construction that a proviso must be
considered with relation to the principal matter to which it stands
as proviso. Therefore it is to be construed harmoniously with the
main enactment. Similar proposition has been laid down by Lord
Macmillan in Madras & Southern Mahratta Railway Co. Vs.
Bezwada Municipality.
66 It would be apt to refer to the observations of the
Supreme Court in para 22 of the judgment in the matter of
Rohitash Kumar & others Vs. Om Prakash Sharma & others,
reported in 2013 AIR (SC) 30 = in 2012 DGLS (Soft) 546, which
reads as under:
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"22 The Court has to keep in mind the fact
that, while interpreting the provisions of a
Statute, it can neither add, nor subtract even a
single word. The legal maxim "A Verbis Legis
Non Est Recedendum" means "From the words
of law, there must be no departure". A section
is to be interpreted by reading all of its parts
together, and it is not permissible to omit any
part thereof. The Court cannot proceed with
the assumption that the legislature, while
enacting the Statute has committed a mistake;
it must proceed on the footing that the
legislature intended what it has said; even if
there is some defect in the phraseology used by
it in framing the statute, and it is not open to
the court to add and amend, or by
construction, make up for the deficiencies,
which has been left in the Act. The Court can
only iron out the creases but while doing so, it
must not alter the fabric, of which an Act is
woven. The Court, while interpreting statutory
provisions, cannot add words to a Statute, or
read words into it which are not part of it,
especially when a literal reading of the same
produces an intelligible result. (Vide
Nalinakhya Bysack v. Shyam Sunder Haldar &
Os., AIR 1953 SC 148; Sri Ram Ram Narain
Medhi v. State of Bombay, AIR 1959 SC 459; M.
Pentiah & Ors. v. Muddala Veeramallappa &
Ors., AIR 1961 SC 1107; The Balasinor Nagrik
Co-operative Bank Ltd. v. Babubhai Shankerlal
Pandya & Ors., AIR 1987 SC 849; and Dadi
Jagannadham v. jammulu Ramulu & Ors.,
(2001) 7 SCC 71)"
67 In the matter of Commissioner of Income Tax,
Calcutta Vs. National Taj Traders, reported in 1980 AIR (SC) 485
= 1979 DGLS (Soft.) 494, the Hon'ble Supreme Court in para 10 of
the judgment, observed thus:
"10 Two principles of construction - one
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relating to casus omissus and the other in
regard to reading the statute as a whole appear
to be well settled. In regard to the former the
following statement of law appears in Maxwell
on Interpretation of Statutes (12th Ed.) at page
33:
"Omissions not to be inferred - "It is a corollary
to the general rule of literal construction that
nothing is to be added to or taken from a
statute unless there are adequate grounds to
justify the inference that the legislature
intended something which it omitted to express.
Lord Morsay said; It is a strong thing to read
into an Act of parliament words which are not
there, and in the absence of clear necessity it is
a wrong thing to do. We are not entitled, said
Lord Loreburn L.C., to read words in an Act of
Parliament unless clear reason for it is to be
found within the four corners of the Act itself.
A case not provided for in a statute is not to be
dealt with merely because there seems no good
reason why it should have been omitted, and
the omission appears in consequence to have
been unintentional."
In regard to the latter principle the following
statement of law appears in Max-well at page
47:
"A statute is to be read as a whole - "It was
resolved in the case of Lincoln colleges case
(1595) 3 Co Rep. 58B, at page 59b that the good
expositor of an Act of Parliament should make
construction on all the parts together, and not
of one part only by itself. Every clause of a
statute is to be construed with reference to the
context and other clauses of the act, so as, as
far as possible, to make a consistent enactment
of the whole statute. (Per Lord Davey in Canada
Sugar Refining Co. Ltd. v. R. 1898 Act 735
(Canada)."
In other words, under the first principle a casus
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omissus cannot be supplied by the Court except
in the case of clear necessity and when reason
for it is found in the four corners of the statute
itself but at the same time a casus omissus
should not be readily inferred and for that
purpose all the parts of a statute or section
must be construed together and every clause of
a section should be construed with reference to
the context and other clauses thereof so that
the construction to be put on a particular
provision makes a consistent enactment of the
whole statute. This would be more so if literal
construction of a particular clause leads to
manifestly absurd or anomalous results which
could not have been intended by the
Legislature. "An intention to produce an
unreasonable result", said Danckwerts L.J. In
Artemiou v.Procopiou (1966) 1 QB 878), "is not
to be imputed to a statute if there is some other
construction available". Where to apply words
literally would "defeat the obvious intention of
the legislation and produce a wholly
unreasonable result" we must "do some violence
to the words" and so achieve that obvious
intention and produce a rational construction,
(per Lord Reid in Luke v. I.R.C., 1963 AC 557
where at p. 577 he also observed : "this is not a
new problem, though our standard of drafting
is such that it rarely emerges". In the light of
these principles we will have to construe sub-
sec. (2)(b) with reference to the context and
other clauses of S. 33-B."
68 The Constitution Bench, in the matter of Dwarka
Prasad Vs. Dwarka Das Saraf, reported in (1976) 1 SCC 128, while
analysing functions of proviso, has observed in paragraph 18 of the
judgment, thus:
"18 We may mention in fairness to Counsel
that the following, among other decisions, were
cited at the bar bearing on the uses of provisos
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in statutes: Commissioner of Income-tax v.
Indo-Mercantile Bank Ltd.; M/s Ram Narain
Sons Ltd. v. Asst. Commissioner of Sales Tax;
Thompson v. Dibdin; Rex v. Dibdin; and
Tahsildar Singh v. State of U.P. The law is trite.
A proviso must be limited to the subject matter
of the enacting clause. It is a settled rule of
construction that a proviso must prima facie be
read and considered in relation to the principal
matter to which it is a proviso. It is not a
separate or independent enactment. 'Words are
dependent on the principal enacting words, to
which they are tacked as a proviso. They
cannot be read as divorced from their context'
(1912 A.C. 544). If the rule of construction is
that prima facie a proviso should be limited in
its operation to the subject matter of the
enacting clause, the stand we have taken is
sound. To expand the 'enacting clause, inflated
by the proviso, sins against the fundamental
rule of construction that a proviso must be
considered in relation to the principal matter to
which it stands as a proviso. A proviso
ordinarily is but a proviso, although the golden
rule is to read the whole section, inclusive of the
proviso in such manner that they mutually
throw light on each other and result in a
harmonious construction.
"The proper course is to apply the broad
general rule of construction which is that a
section or enactment must be construed as a
whole each portion throwing light if need be on
the rest.
The true principle undoubtedly is, that
the sound interpretation and meaning of the
statute, on a view of the enacting clause, and
proviso, taken and construed together is to
prevail."
(Maxwell on Interpretation of Statues 10 Edn. P.
162)
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69 The main functions of the proviso can be described as
follows:
(I) To create an exception in respect of
certain matters which would otherwise fall
within the section;
(II) To qualify or restrict the operation of the
main part of the section;
(III) To exclude some possible misinterpretation
of the section;
A proviso, therefore, should never be used to extend
scope of the section.
70 As has been observed by the Supreme Court in the
matter of RBI Vs. Peerless General Finance and Investment Co.
Ltd., reported in (1987) 1 SCC 424, the textual interpretation that
matches the contextual is known to be best interpretation. It is
observed in paragraph 33 of the judgment, thus:
"33 Interpretation must depend on the text
and the context. They are the bases of
interpretation. One may well say if the text is
the texture, context is what gives the colour.
Neither can be ignored. Both are important.
That interpretation is best which makes the
textual interpretation match the contextual. A
statute is best interpreted when we know why it
was enacted. With this knowledge, the statute
must be read, first as a whole and then section
by section, clause by clause, phrase by phrase
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and word by word. If a statute is looked at, in
the context of its enactment, with the glasses of
the statute-maker, provided by such context, its
scheme, the sections, clauses, phrases and
words may take colour and appear different
than when the statute is looked at without the
glasses provided by the context. With these
glasses we must look at the Act as a whole and
discover what each section, each clause, each
phrase and each word is meant and designed to
say as to fit into the scheme of the entire Act.
No part of a statute and no word of a statute
can be construed in isolation. Statutes have to
be construed so that every word has a place
and everything is in its place. ....."
The law concerning disqualification is a law imposing
dis-entitlements. The law of election is a special branch of
statutory law and secondly the entitlement to contest as well the
matters of dis-entitlement in that regard are all specified matters
originating in the statute. They cannot have any other source
except the statute. The general principles of equity or other
common law doctrines would not be relevant nor operative nor
applicable in such a field expressly defined by the statute. Not
only the intendment but also its effects will have to be found in the
given law and not outside. This equally applies to the definition,
procedure jurisdiction and penalty attached to the stated act or
omissions. The rule of strict construction is the basic canon that
governs all matters of law concerning disqualification or dis-
entitlement of those who seek the election as candidates and those
who are chosen and are continuing to hold the elective offices, after
being so chosen.
72 It is essential while applying the principles of strict
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construction and strict compliance, to ascertain character of a
given statute. Generally speaking, Statutes are classified in four-
fold manner. Firstly, the statutes are remedial, secondly they are
declaratory, thirdly they are procedural and lastly they are penal or
disentitling. One has to find out the character of the statute as to
whether it is penal or not, so as to attract principle of strict
construction. Firstly, it requires an inquiry as to whether the
statute provides the imposition of penalty or enacts penal
consequences such as fine, forfeiture of rights, interests in
property, office or status or any such liability or disability.
Secondly, whether such statute contains the express terms of
sanctions by enacting prohibitions providing for penal effects
attached to the given set of circumstances, prohibitions depending
upon circumstances in specific form. Thirdly, even if the express
terms may not be there, the rules of construction permit importing
such sanction in favour of the commands or prohibitions contained
in the statute which might have the background or context of a
given system of accepted law such as common law or other enacted
laws or even customary law having social sanction.
Conclusion:
73 Considering the principles as recorded above, the
Disqualification Act of 1986 shall have to be characterised as penal
statute and the provisions of the enactment shall have to be
strictly construed.
74 Section 2(a) defines the term "aghadi" or "front" means
a group of persons who have formed themselves into a party for the
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purposes of setting up a candidate for election to a local authority.
Reading the provision as it is and on consideration of the reasons
set out in this judgment, it has to be inferred that the aghadi or
front contemplated under Section 2(a) of the Disqualification Act of
1986 is necessarily a pre-poll aghadi or front.
75 In the result,
(I) The answer to the first Issue, Whether the term
aghadi or front as defined U/Sec. 2(a) of the
Disqualification Act of 1986, would mean the party or
aghadi on whose candidature the councillor is elected
or would also include the aghadi of two or more
municipal parties coming into existence after the
elections are held, shall have to be recorded as the
party or aghadi on whose candidature the councillor is
elected, As a necessary consequence, the aghadi or
front, within contemplation to Section 2(a) of the
Disqualification Act of 1986, is a pre-poll aghadi or
front.
(II) Similarly, in view of the judgment of the Supreme
Court in the matter of of Mayawati Vs. Markandeya
Chand & others, reported in (1998) 7 SCC 517 (supra),
as well as in view of the reasons set out in this
judgment, it has to be concluded that that the term
"original political party" or "aghadi", appearing in
Section 5, would mean the party at its National level
and would not mean "municipal party". The Issue No.
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(II), referred for consideration is answered accordingly.
76 It has been brought to our notice by learned Counsel
appearing for both the parties that the elective term of the office of
Municipal Council has already come to an end and grievance set
out in this petition is merely rendered of academic interest.
In this view of the matter, instead of remitting the
matter back to the learned Single Judge for disposal, we deem it
appropriate to dispose of the writ petition.
Writ Petition is accordingly disposed of. No order as to
costs. Pending Civil Applications, if any, stand disposed of.
RAVINDRA V. GHUGE SUNIL P. DESHMUKH R.M.BORDE
JUDGE JUDGE JUDGE
adb/wp432311
