Important Point
High Court was right in holding that appellants who were independents at the time of election formed a political party after election and by disobeying its whip the appellants have incurred disqualification, under Maharashtra Local Authority Members’ Disqualification Act, 1986.

Headnote:Maharashtra Local Authority Members’ Disqualification Act, 1986-Section 2(a)-Member of a political party, Aghadi or Front-Section 3(1) (b), 3(2)-Disqualification for defection-Appellants 1 to 9 fought Municipal election as independents-After winning election formed a party-In voting for President of Municipal Council, they violated whip of the party-Application for disqualification-Dismissed by Collector-In writ, High Court allowed-Whether High Court was right in holding that appellants have incurred disqualification? (Yes)-Appeal dismissed. (Para 10)
       Held : Section 3(2) to which we have adverted to earlier with reference to 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 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. This Court in Kihoto Hollohan v. Zachillhu 1992 Supp. (2) SCC 651 (688), while dealing with the effect of 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 blank. 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. On the other hand, it is made clear a councillor or a member has been elected not set up by a political party or front joins such political party subsequently would incur disqualification. (Para 9)
       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 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 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 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 discipline of the party or front on becoming members thereof. Such party whether would amount to formation of party or became 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. (Para 10)
       Consequently held : In the result, the appeal stands dismissed. No costs. (Para 11)

Judgment

Rajendra Babu, J.-The appellants in this batch of cases were elected as members of the Mahabaleshwar Devanstan Municipal Council in the elections held on 1st December, 1996. There are 17 wards in the council and 17 councillors were elected. At the time of election the councillors so elected did not associate with any political party or Aghadi or Front. They having contested as independent candidates on 2nd December, 1996 a meeting of these councillors was held and they formed themselves into an Aghadi Front with the name Mahabaleshwar Giristhan Nagar Parishad Shahar Vikas Aghadi. On 17.12.1996 the appellants informed respondent No. 3 that they have formed a Front as aforesaid. On 18.12.1996 the names of the appellants were published in the official gazette. On 23.12.1996 elections were proposed to be held to the post of President as per a notification issued on 23.12.1996 to be held on 31.12.1996. An application was filed by respondent No. 1 who is an elected councillor on 26.12.1996 intimating about the formation of the Front by the appellants and requesting the respondent No. 3 to disqualify the appellants on the ground of defection as set forth in Section 3(2) of the Maharashtra Local Authority Members’ Disqualification Act, 1986 (hereinafter referred to as “the Act” for brevity). An order was made by respondent No. 3 on 28.12.1996 rejecting the said application. A writ petition was preferred before the High Court challenging the decision of respondent No. 3 in rejecting the application filed by respondent No. 1.

2. On 23rd December, 1996, the Collector issued a notice convening a meeting to be held on 31st December, 1996 for electing the President of the council for which the Aghadi had sponsored appellant No. 4 as its candidate and respondent No. 1 had issued a whip to all its councillors to vote for the Aghadi candidate. In the meeting held on 31st December, 1996 respondent No. 4 was declared elected President for the year 1997-98. She secured 9 votes as against 8 votes secured by candidate who was defeated. In terms of Section 3(1) of the Act, the High Court took the view that councillors or members belonging to any political party, Aghadi shall be disqualified for being a councillor or a member if he voluntarily gives up his membership of such political party or Aghadi or front and, therefore, such Aghadi/ front is placed at par with any political party in the same manner as giving up membership of parties attracts disqualification, similarly voluntarily giving up membership of an Aghadi or front would be a disqualification. The High Court also noticed that under Section 3(1)(b) of the Act a member of a political party. Aghadi or front had to cast votes at the meetings of local authorities as per the directions of the party. If a member or a councillor fails to comply with the party directions, he would incur disqualification. In particular it noticed Clause (a) of the Explanation that a person elected as a councillor shall be deemed to belong to the party, Aghadi or front, if any, by which he was set up as a candidate for election and the High Court concluded on that basis that each of the appellants 1 to 9 having contested as independent candidates and on being so elected they formed themselves into an Aghadi and, therefore, they ceased to be independent councillors. Before electing the President, formed themselves into an Aghadi and having chosen their leader and office bearers nominated a candidate for the presidential elections by issuing a whip calling upon its members to vote for that person and none else. They were covered by definition of Section 2(a) of the Act. The High Court was also of the view that appellants 1 to 9 are a group of persons who had formed themselves into a party, and the election of a President is also an election to the local authority. The High Court considered the argument advanced on behalf of the appellants that formation of Aghadi is not a case of joining a p

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Judicial Analysis

SupremeToday

1998 Supreme(SC) 557

Important PointHigh Court was right in holding that appellants who were independents at the time of election formed a political party after election and by disobeying its whip the appellants have incurred disqualification, under Maharashtra Local Authority Members’ Disqualification Act, 1986.

Judicial Analysis

Important Point
High Court was right in holding that appellants who were independents at the time of election formed a political party after election and by disobeying its whip the appellants have incurred disqualification, under Maharashtra Local Authority Members’ Disqualification Act, 1986.