Razia Begum Sayed Natiquoddin ... vs The District Collector, Akola And ...
2016 Latest Caselaw 3472 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH 




                                                                              
                              NAGPUR.




                                                     
                     WRIT    PETITION     NO.   5553     OF     2015




                                                    
    Razia Begum Syed Natiquoddin 
    Khatib President as well as 
    leader of Nagar Vikas Party Balapur,
    Distt. Akola as well as Councillor 
    of Municipal Council Balapur, aged 




                                          
    52 yrs. Occu.Agriculturist R/o 
    Sayyed Pura Balapur, Distt.Akola. 
                              ig                                   PETITIONER.
                            
                                         VERSUS


    1] The District Collector,Akola.
      


    2] Mohamad Zamir Sheikh
    Ibrahim, aged 48 yrs. Occu.
   



    Business, R/o Satranjipura,
    Shahar Balapur, Distt.Akola. 

    3] The Municipal Council 





    Balapur through its Chief 
    Officer, Municipal Council
    Balapur, Distt. Akola. 

    4] The Election Officer/Returning
    Officer, Municipal Council 





    General Election 2011 The Sub-
    Divisional Officer, Balapur,
    Distt. Akola. 

    5] The Presiding Officer for the
    Election of President and Vice
    President of the Municipal
    Council Balapur for the year
    2014, The Sub-Divisional Officer
    Balapur, Distt. Akola.                                         RESPONDENTS.

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Shri Akshay Naik, Advocate for the petitioner.

Shri K. L. Dharmadhikari, Assistant Government Pleader for respondent nos. 1, 4 & 5.

Shri S. D. Chopde, Advocate for respondent no. 2.

                                     CORAM:     A. S. CHANDURKAR  J.
                               




                                                               
                                      Dated    :   JUNE  29, 2016.

    ORAL JUDGMENT: 




                                                 
                   Rule.     Heard   finally   with   consent   of   learned   counsel   for   the 

    parties. 
                              
    2]             The petitioner is aggrieved by the order dated 08.09.2015 passed 
                             

by the respondent no.1 dismissing the disqualification petition that was filed

by the petitioner against the respondent no.2. It is not necessary to go into

detailed facts as after hearing the learned counsel for the parties it has been

found that the disqualification petition filed by the petitioner under Section

3 of the Maharashtra Local Authority Members Disqualification Act, 1986 (for

short, the said Act) has not been decided in the manner prescribed by the

Maharashtra Local Authority Members Disqualification Rules, 1987 (for

short, the said Rules).

3] After the disqualification petition was filed, the respondent no.2

filed his reply on record. Thereafter the articles of charge came to be framed

as per provisions of Rule 7(6) of the said Rules on 23.04.2015. After this

stage it was necessary on the part of the Collector to follow the procedure

prescribed by Rule 7(8) of the said Rules. Both the parties filed their

affidavits on record but without examining the deponents on oath or they

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being cross-examined, the respondent no.1 by considering the opinion of the

handwriting expert that was filed on record came to the conclusion that the

petitioner had condoned the act on the part of the respondent no.1 of

disobeying the whip in question. On that basis the disqualification petition

came to be dismissed.

4] After perusal of the records of the disqualification petition along

with Roznama it is not in dispute that the proceedings have not been decided

by following the procedure as prescribed by Rule 7(8) of the said Rules.

Moreover, as per the articles of charge there were four charges framed in the

proceedings. In the impugned order there is discussion only in respect of the

charge No. 2 and the disqualification petition has been thereafter dismissed.

This factual aspect is evident from the record.

5] Considering the fact that it was necessary on the part of the

respondent no.1 to have followed the procedure as stipulated by Rule 7 of the

said Rules, the impugned order passed without following the same is liable to

be set aside. Hence, on this short ground the order dated 08.09.2015 is liable

to be set aside.

6] In view of aforesaid the following order is passed:

a] The order dated 08.09.2015 passed by the respondent no. 1

dismissing the disqualification petition is quashed and set aside.

b] The disqualification petition is restored to file for being

decided in accordance with law. The Collector shall decide the proceedings

afresh from the stage as contemplated by Rules 7(8) of the Rules of 1987.

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c] The parties undertake to appear before the respondent no.1 on

11.07.2016. The respondent no.1 shall decide the said proceedings by the

end of 30.09.2016 in accordance with law and after considering the

submissions of the respective parties. Rule is made absolute in above terms

with no order as to costs.

JUDGE

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