Bombay High Court

Shri. Kumar Gorakhnath Shinde And ... vs The State Of Maharashtra And Ors on 6 July, 2023

Bench: G. S. Kulkarni, Madhav J. Jamdar, Jitendra Shantilal Jain

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                       CIVIL APPELLATE JURISDICTION

                      WRIT PETITION NO.11434 OF 2016

Shri. Kumar Ghorakhnath Shinde & Ors.               .. Petitioners
       Versus
The State of Maharashtra & Ors.                     .. Respondents

                                  AND
                      WRIT PETITION NO.11557 OF 2016

Shri. Prakash Ramchandra Patil                      .. Petitioner
       Versus
The State of Maharashtra & Ors.                     .. Respondents

                                  ---

Mr. Vijay Patil with Mr.Siddharth R. Karpe with Mr.Vishwajeet Mohite, for the Petitioners.

Mr. Rajan S. Pawar, AGP for the State /Respondent Nos.1 and 2.

Mr.Prathamesh Bhargude, for Respondent No.3.

Ms. Shraddha Pawar i/b. Mr.Dilip Bodake, for Respondent No.4.

---

CORAM : G. S. KULKARNI , MADHAV J. JAMDAR & JITENDRA JAIN, JJJ.

DATE : 6th JULY 2023

P.C.:-

1. In the proceedings of the present Writ Petitions, a learned Single

Judge of this Court [Mr.Justice R. M. Savant (as His Lordship then was)]

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was considering an issue in regard to disqualification of the petitioners as

members of Mahabaleshwar Municipal Council under the provisions of

the Maharashtra Local Authority Members' Disqualification Act, 1986 (for

short 'the Disqualification Act').

2. In the course of adjudication of such proceedings, one of the issue

which fell for consideration of the Court was the effect of Section 62(2B)

of the Maharashtra Municipal Council and Nagar Panchayats and

Industrial Townships Act, 1965 (for short 'the Municipalities Act') vis a

vis the provisions of Section 3(1)(a) of the Disqualification Act. The

petitioners had placed reliance on the decision of the Full Bench of this

Court in Shah Faruq Shabir and others vs. Govindrao Ramu Vasave and

others1 to contend that the Full Bench had interpreted the said provisions

and had taken a view that there was no inconsistency or repugnancy in the

provisions of the Disqualification Act as against the provisions of the

second proviso to Section 63(2-B) of the Municipalities Act, as both the

laws operated in different fields. It was also observed that the proviso to

Section 63(2-B) of the Municipalities Act cannot travel beyond the scope

of substantive portion of Section 63 itself. It was also observed by the Full

Bench that the said provision cannot be equated with an 'aghadi' or 'front'

1 2016(5) Mh.L.J. 436

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under Section 2(a) for the purposes of invocation of the provisions of the

Disqualification Act. It was also held that the term 'original political party'

or 'aghadi' appearing in Section 5 would mean the party at its national

level and would not mean a "municipal party." Considering the

enunciation of law in the decision of the Full Bench, the petitioners had

contended before the learned Single Judge that the impugned orders

disqualifying them as members of the Municipal Council was illegal

requiring them to be set aside.

3. On the other hand, on behalf of the complainants ( the contesting

respondents ) the correctness3 of the decision of the Full Bench in Shah

Faruq Shabir's case (supra) was questioned and more particularly, as

recorded in paragraph 12 of the order passed by the learned Single Judge,

which reads thus:-

12. Per contra, in so far as the said issue of applicability of the Disqualification Act to Post-Poll Aghadi formed under Section 63(2B) of the Municipalities Act is concerned, it was the submission of the Learned Senior Counsel Mr. A.V Anturkar appearing on behalf of the Respondent No. 3 that the judgment rendered by the Full Bench in Shah Faruq case (Supra) is in the facts of the case that was before the Full Bench. The Learned Senior Counsel would point out that before the Full Bench, there was a disobedience of the whip issued by the leader of the Post-

Poll Aghadi for the election to the President of the Municipal Council. It was the submission of the Learned Senior Counsel that in the said context the Full Bench has observed that the Post-Poll Aghadi has no relevance in so far as the elections to the post of President and Vice President are concerned. The Learned Senior Counsel sought to question the answer rendered by the

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Full Bench to the question No. 1 framed by it. The Learned Senior Counsel would contend that the effect of the legal fiction as contained in the proviso to Section 63(2B) of Municipalities Act has not been considered by the Full Bench in its proper perspective. In fact, it was the submission of the Learned Counsel that the judgment of the Full Bench is per-incurium since it has been rendered in ignorance of the law as propounded by the Apex Court in so far as legal fiction and its consequences are concerned. In support of the said proposition, the Learned Senior Counsel placed reliance on the following judgment of the Apex Court:

(2015)4 SCC 1 in the matter of K.P.Manu V. Chairman Scrutiny Committee for Verification for the Community Certificate."

4. Considering the above submissions as urged on behalf of the

respondents/complainants, the learned Single Judge in paragraph 28 of the

order in question has observed that reading of the judgment of the Full

Bench in Shah Faruq Shabir's case (supra) discloses that the consequences

of legal fiction comprised in a statutory provision has not been considered

by the Full Bench. It was observed that in such context, the well settled

principles of law as laid down in East End Dwelling Co.Ltd. Vs. Finsbury

Borough Council (1951) 2 All.E.R 587 as followed by the Supreme Court

in several decisions, has not been taken into consideration by the Full

Bench. The learned Single Judge observed that the judgment of the Full

Bench could be said to be per-incurium in view of the fact that the

decisions of the Supreme Court on the consequence, a legal fiction would

bring about to the statutory provision was not brought to the notice of the

Full Bench.

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5. The learned Single Judge also observed that a question had also

arisen, as to whether the conclusion arrived at by the Full Bench that a

Post-Poll Aghadi under Section 63(2B) cannot be equated with a Pre-Poll

Aghadi under Section 2(a) could at all be said to be well founded, in view

of the judgment of the Apex Court in the case Jeevan Chandrabhan Idnani

Vs. Divisional Commissioner, Konkan Bhavan & Ors. 2 in which the

Supreme Court in paragraph 26 observed that once an Aghadi is registered

by a legal fiction enacted under the proviso, such an Aghadi is treated as a

'Post-Poll Aghadi or Front', although the Apex Court did not dwell into

the effect of the declaration that once an 'Aghadi or Front' is registered, the

provisions of the Disqualification Act become applicable. It was hence

observed that in such context, finding of the Full Bench was contrary to

the observations of the Supreme Court in Jeevan Chandrabhan Idnani case

(supra).

6. Having formed such opinion, learned Single Judge made the

following order to place the proceedings before the Hon'ble the Chief

Justice for constitution of a Larger Bench to decide such issue:-

"35. For all the aforestated reasons, I am unable to persuade myself to accept the view of the Full Bench. I am conscious of the 2 (2012)2 SCC 794

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observations made by the Larger Bench in the case of State of Maharashtra V. Murar Rao's case (supra), however, I would be failing in my duty by not referring the matter to the Hon'ble Chief Justice for constituting a Larger Bench, considering the importance of the issue involved in the present day scenario where Post-Poll Aghadis or fronts are the order of the day. Hence without in any way being disrespectful to the judgment of the Full Bench, but purely with a view to give a quietus to a issue which this Court feels is of some public importance, I deem it appropriate to follow the course of action adopted by the Learned Single Judge in Second Appeal No. 411 of 1990 and accordingly by invoking Rule 7 of the Appellate Side Rules the matter is referred to the Hon'ble the Chief Justice for constitution of a Larger Bench to consider the implications of the legal fiction as comprised in the proviso to Section 63(2B) of the Municipalities Act. Hence the Registry may place the papers before the Hon'ble the Chief Justice to consider constituting a Larger Bench as the Hon'ble the Chief Justice deems appropriate to consider the said issue."

7. In pursuance of the above orders of the learned Single Judge, the

Registry had placed the proceedings before the Hon'ble the Chief Justice

for constitution of a larger Bench, by an order dated 19 November 2019

The Hon'ble the Chief Justice directed that the present proceedings be

placed before the Full Bench to consider whether the issue needs to be

referred to a 5 Judge Bench. By the subsequent order passed by the

Hon'ble the Acting Chief Justice dated 23 May 2023 the present Bench

has been constituted.

8. We have heard learned Counsel for the parties. Having considered

the issues as noted above, we are of the opinion that the proceedings are

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required to be heard by a Bench of five Judges. The reason being that the