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2002 Supreme(Bom) 1362
IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
Naik A.B., J.
Mirza Kadir Baig Rasul Baig .... Petitioner.
Versus
District Collector others.... Respondents.
Writ Petition No. 3898 of 2002, decided on 19-12-2002.
Advocates appeared :
V.J. Dixit, for petitioner.
V.M. Humbe, for respondent No. 4.
S.P. Sonpawale, for respondent No. 2.
N.L. Jadhav, A.G.P., for respondent No. 1 3.
Headnote:Maharashtra Local Authority Members Disqualification Act, 1986 - Section 7 - Whip issued - Violation of whip - Petition against dis- qualification due to violation of whip - Contention - Petition not filed property - Collector could not act judicially - Held - Shortcomings as shown are glaring on face of record - Disqualification is a serious matter - Proper followings of rules necessary. - It is to be noted that disqualification of an elected councillor is a drastic step, for which, requires strict compliance of the procedure required under law. The rules, being mandatory in nature and strict compliance is always required and insisted. As there is non-compliance of statutory requirement, the petition so filed was required to be dismissed by the Collector at the threshold. The disqualification petition is not a petition in eye of law and therefore, order passed by the Collector cannot stand to any reason because the Collector has not embarked upon any enquiry and applied her mind to the statutory requirements, to find out whether the petition strictly complies the statutory, mandatory compliance, which are supposed to be followed by the Collector, under the said rules. Therefore, in the judgment, there is an error apparent on the face of record in passing order of disqualifying the petitioner.
Maharashtra Local Authority Members Disqualification Rules, 1982 - Rules 3(1)(a) and 6 - Violation of whip - Resulting in disqualifi- cation of members - Contention - Petition not filed properly - Not verified properly - Held - Lapses as shown are glaring ones - Necessary rules and procedures are to be followed in spirit - Enquiry should be conducted after following all necessary statutory requirements. - It is to be noted that disqualification of an elected councillor is a drastic step, for which, requires strict compliance of the procedure required under law. The rules, being mandatory in nature and strict compliance is always required and insisted. As there is non-compliance of statutory requirement, the petition so filed was required to be dismissed by the Collector at the threshold. The disqualification petition is not a petition in eye of law and therefore, order passed by the Collector cannot stand to any reason because the Collector has not embarked upon any enquiry and applied her mind to the statutory requirements, to find out whether the petition strictly complies the statutory, mandatory compliance, which are supposed to be followed by the Collector, under the said rules. Therefore, in the judgment, there is an error apparent on the face of record in passing order of disqualifying the petitioner.
I. Substantial Compliance of Reference Petition with Rule 6
- The reference petition clearly outlined three specific instances of whip violation on 17-12-2001 (co-opting councillor) and 23-12-2001 (Standing Committee) (!) (!) (!) (!)
- It specified the petitioner's voting for Nationalist Congress Party candidates against the Congress (I) whip directing abstention or support for party nominees (!) (!)
- Thirteen documents were listed and relied upon, including party leader intimation dated 5-1-2002 (!) (!)
- Verification requirements under CPC Order 6 Rule 15 are directory; minor defects do not render the petition non-est (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
- Petitioner filed detailed reply denying violations without seeking pre-inquiry rejection, indicating no fatal defect (!) (!)
II. Proper Scrutiny and Exercise of Powers under Rule 7(1)-(2)
- Collector issued notices post-receipt on 8-1-2002, affording opportunity and aligning with natural justice (!)
- Prima facie case under Sections 6 and 7 was disclosed, obviating mandatory dismissal (!) (!) (!) (!) (!)
- Objections in petitioner's reply (para 14) were considered; no recording of satisfaction required where compliance is substantial (!) (!) (!) (!) (!) (!)
- Preliminary dismissal not warranted as reference was entertainable under the Act (!) (!)
III. Adherence to Procedural Steps under Rule 7
- Steps like forwarding to leader, preliminary inquiry, framing charges, imputation statements, and document/witness lists are procedural aids, not inflexible preconditions (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
- Collector framed issues on party constitution, leadership, whip issuance, and violation after examining merits (!) (!)
- No issue on maintainability needed as defects were curable and non-jurisdictional (!) (!)
IV. Fairness of Inquiry Process and Use of Evidence
- Affidavits accepted in lieu of oral evidence suitable for documentary whip violation case (!) (!)
- Inquiry was merits-based, disqualifying solely on proven Vice President election violation (!) (!) (!) (!) [4000148340002][4000148340003]
- Petitioner's denial lacked counter-evidence; process ensured fairness (!) (!)
V. No Demonstrated Prejudice or Jurisdictional Error
- Petitioner participated fully without prejudice from alleged lapses (!) (!) (!) (!) (!)
- Disqualification under Section 3(1)(a) read with Rule 3(1)(a) achieved strict compliance in substance (!) (!) (!)
- Council composition (11 Congress (I), 10 NCP post 3-12-2001) highlighted whip relevance (!) (!) [4000148340001]
VI. Limited Scope of Interference under Article 226
2.The petitioner-Mirza Kadir Beg s/o Rasul Beg was elected from zone No. 7-C of Jintoor City as a councillor of Municipal Council, Jintoor (hereinafter referred to as Council). It is also not disputed that the petitioner was one of the candidates who was sponsored by the Indian National Congress (I) Party (hereinafter referred to as 'the party'), a recognized party at State and National level. The elections were declared under the provisions of Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965. In the said elections, apart from the party, other recognized parties such as Nationalist (Congress) Party, B.J.P. and Shivsena, etc. also sponsored their respective candidates. It is also not disputed that the Council consists of 21 members and on declaration of results of the said elections, which took place on 3-12-2001, 11 councillors sponsored by the party declared elected and ten from Nationalist Congress Party were declared elected. It is not disputed that candidates elected pursuant to the said elections are subjected to and covered by Maharashtra Local Authority Members Disqualification Act, 1986 (hereinafter referred to as the Act for short) and Maharashtra Local Authority Members (Disqualification) Rules, (hereinafter referred to as the Rules).
4.On completion of elections, there arose a question to elect Vice President of the Council and also members of the Standing Committee. A meeting for that purpose was held on 17-12-2001. It has come on record and it is alleged that in the said meeting, the petitioner, in defiance of a whip issued by the party leader, voted against the candidate sponsored by the Congress (I) Party. It has come on record that after election as per the Rules the name of councillor sponsored by the party, as required under Rule 3(1)(a) was intimated and the said intimation was issued on 5-1-2002 under signature of one Shri Bhambale Vijay Manikrao. It has come on record that in the election of Vice President, the candidate sponsored by the party, Mr. Deshmukh Pratap Vinayak was defeated and it was case of the petitioner i.e. respondent No. 4 herein that present petitioner has voted against the party candidate in the said election. The said election was held on 17-12-2001. Defiance of whip by the petitioner gave rise for the respondent No. 4 to approach the Collector by making a reference as provided under section 7 of the Act.
5.The procedure for filing a reference is contemplated under Rule 6 of the Rules. The respondent No. 4 filed a reference before the Collector, Prabhani, as the Collector, Parbhani is the designated competent authority to decide a question of disqualification, as referred in section 7. The application, inter alia, state the following aspect :---
"9. That, a meeting of the General Body of Municipal Council, Jintoor, was convened on 17-12-2001 for the purpose of co-opting councillor. There were three candidates who have filed the nomination for getting themselves elected as the co-opted councillor in the said Municipal Council. By disobeying the order of the petitioner, the non-petitioner has not voted in favour of a candidate who is sponsored by political party. But the non-petitioner has voted and casted his vote in favour of Subhash Mohanlal Sharma, who is one of the sponsored candidate from Rashtrawadi Congress and thereby the non-petitioner has contravened, neglected and disobeyed the order of the petitioner, who is the leader of the House of the Indian National Congress and thereby he is disqualified to continue as a councillor under the Maharashtra Local Authority Members Disqualification Rules, 1987.
10. That, on 17-12-2001, the meeting of the councillors
