2005 Supreme(Bom) 819

IN THE HIGH COURT OF BOMBAY
HARIHARRAO VISHWANATHRAO BHOSIKAR
Versus
DATTA ANANDRAO PAWAR
Decided on 30.6.2005

Headnote:Maharashtra Local Authority Members (Disqualification) Act, 1987 - Section 3 - Disqualification of members - Grounds - Petitions members of Zilla Parishad - Nomination for election submitted - Issuance of whip/direction to withdraw nomination - No restriction imposed on sitting members to contest election of either Parliament or Assembly - Disqualification on grounds of non-withdrawal of nomination - Not sustainable further whip was not issued by authorised person. - All the writ petitions are filed against an order rejecting the applications filed by the present petitioners to decide the preliminary issues of maintainability but the Collector for no valid reasons, has rejected the prayers of the petitioners and opined that the preliminary objection/issue will be considered at the time of final disposal, such action is impermissible under the Act. On going through the files which are produced, it shows that the Collector has not performed his statutory duties with due diligence, the Court may not get any other occasion in future to comment adversely and reprimand the Collector/s who are entrusted the onerous duty to judge and to disqualify an elected candidate. Therefore, even though the petitions are filed against the orders on an application filed by the petitioners requesting the Collector to decide maintainability of the DPs as preliminary issue, all DPs are required to be dismissed as such, as those are not in conformity with Rule 6 of the Rules. Accordingly, all DPs filed against the present petitioners stand rejected as these are not in conformity with Rule 6 of the Rules. Point Nos. 3 and 4 answered accordingly. Having gone through minutely to the provision of Rules 6 and 7, the Collector has no authority or jurisdiction to give direction to the complainants to add the parties to the DPs, this action of the Collector is per se illegal, unauthentic and arbitrary sounds absurdity. Hence that action also has to be declared illegal. This point also answered accordingly.

       Maharashtra Local Authority Members (Disqualification) Act, 1987 - Section 9 - Maharashtra Local Authority Members (Disqualification) Rules, 1997 - Rule 3 - Issuance of whip or direction - Members directed to withdraw nominations - No record showing complainant were elected as leader - A cause given to seek disqualification to withdraw nomination cannot be said to be a whip or direction. - It is nowhere stated by the complainants that they were elected as Leader of the party i.e. "Zilla Parishad Party’’ as defined under the Act. Therefore, the cause given by the complainants to seek disqualification of the present petitioners to withdraw the nomination cannot be called a "whip" or "direction" as contemplated under the Act; and even if it is held that such a whip was there but was issued from unconcerned person and that cannot be called as whip for any reason as the complainants who have lodged the petitions before the Collector were not competent to issue such a whip. Therefore, the point No. 4 is answered in the negative.

       Maharashtra Local Authority Members (Disqualification) Act, 1987 - Section 9 - Maharashtra Local Authority Members (Disqualification) Rules, 1997 - Rule 6 - Necessity of compliance of Rule 6 - A mandatory provision - Petition against disqualification of a member - Annexure not as per Rule 6(4) - Production of documentary evidence not to make petition as valid. - Sub-rule (4) of Rule 6 requires that every petition and annexures thereto shall be sent by the petitioner and verified in the manner laid down in the CPC for verification of the pleadings. A bare glance to (alleged) annexures contained in the original file, it is evident that there is no verification as required by sub-rule (4) of Rule 6. As Rule 6 is in mandatory form, the petition has to be filed in the manner prescribed and there is no power or authority vested with the Collector to accept the petition which does not comply with the requirement. It is very difficult to accept the contention of S/Shri. Patil and Deshpande, Advocate s for respondents in concerned petition, that as the certified copies of the documents were annexed, it was not necessary to verify those documents. If such contention is accepted, then there will be total violation of sub-rule (4) of Rule 6. When a statute requires that a particular thing should be done in a particular manner, it has to be done in the manner alone unless the contrary indication is to be found in the statute. Therefore, bare perusal of the record produced in all these petitions, the petitions filed are not at all petitions as contemplated under the Act and the Rules. Therefore, the contention advanced by all the Advocates for the petitioners has to be accepted, as being valid one.

       Maharashtra Local Authority Members (Disqualification) Act, 1987 - Section 9 - Maharashtra Local Authority Members (Disqualification) Rules, 1997 - Rule 7 - Taking cognizance on disqualification petition - Collector’s entitlement to take cognizance - Petition filed in casual manner - Rules not followed - Cognizance taken wrongly, without any jurisdiction. - Once it, is accepted and found that the petitions were not filed strictly in accordance with Rule 6, now, Court has to find out what duties are cast upon the Collector under the Rules on receipt of the petition. Rule 7 requires the Collector to consider whether the petition complies with the requirements laid down in Rule 7. If the Collector finds that the petition does not comply with the requirements, he has no other option than to dismiss the petition and intimate the same to the petitioner. On receipt of the petitions, the Collector did not bother to exercise his power and jurisdiction conferred on him by Rule 7; but it appears that somebody else from his Office has gone through the petitions and put up a note for direction of issuing notice to other side. Such action or act on the part of the Collector and, for that purpose, the Officer concerned is in utter defiance of the dictate of the statute. If one reads sub-rule (4) of Rule 7 it was bounden duty of the Collector to determine the question of maintainability on making preliminary enquiry. Thus, taking cognizance of the petitions by the Collector and that too on the notes presented to him either by his subordinates or by someone else discloses non-application of mind and dereliction of duty. Therefore, the Collector Nanded has exercised his jurisdiction which is not vested in him in ordering notices to be issued to the respondents therein. Therefore, the result is that DPs filed under the Act and the Rules require to be dismissed or rejected as not maintainable. All the DPs has to be dismissed. Therefore, the Point No. 1 framed is answered in favour of the petitioners.

       Maharashtra Local Authorities Members’ Disqualification Act, 1987 - Section 3 - Disqualification of members of Zilla Parishad. - Any person being not a member of Zilla Parishad, not competent to file disqualification petitions against members of Zilla Parishad. - The persons who have filed the complaints were not members of Zilla Parishad nor the act alleged against the petitioners can be called as disqualification under the Act, because, there was no question of voting or abstaining from voting in attending the meeting or voting against the direction of the meeting of the Zilla Parishad. But what is alleged by them is their cause of the not withdrawing the nomination forms. Such action by the petitioners at the most can be called as indicipline in the party and for that purpose that political party or Aghadi has to take appropriate action at that party level. But so far as seeking disqualification of sitting member or Councillor of Zilla Parishad the action has to be taken under the Act and the Rules and that too, by those who are members of Zilla Parishad. Undisputedly all the complainants who have filed their Disqualification Petitions were not members of the Zilla Parishad either elected or nominated but they claim themselves to be the Heads of the District Units of respective parties. Therefore, such persons are not authorized or competent to file Disqualification Petitions under the Act. Therefore, on this ground also, the petitions should have been dismissed by the Collector.

       Maharashtra Local Authorities Members’ Disqualification Act, 1987 - Section 3(1)(b) - Maharashtra Local Authorities Members Disqualification Rules, 1997, Rule 3(5) - Term "whip". - "Whip" issued from unconcerned person, without any authority, cannot be called as "whip". - Where it was alleged in the Disqualification Petitions filed before the Collector that there was direction given to the petitioners to withdraw their nominations by the District Head of the party unit.

       Held, that this direction issued was not a direction or whip as contemplated under sub-rule (5) of Rule 3 of the Rules. Even assuming such direction was issued, but it was not in connection with the functioning of the petitioners as members of the Zilla Parishad and this act and omission in the House i.e. Zilla Parishad. As such, issuance of such whip or direction was initially without any authority and not by the leader of the party, as defined under the Act. It is nowhere stated by the complainants that they were elected as Leader of the party i.e. "Zilla Parishad Party" as defined under the Act. Therefore, the cause given by the complainant to seek disqualification of the petitioners to withdraw the nomination cannot be called a "whip" or "direction" as contemplated under the Act; and even if it is held that such a whip was there but was issued from unconcerned person and that cannot be called as whip for any reason as the complainants who have lodged the petitions before the Collector were not competent to issue such a whip.

       Maharashtra Local Authorities Members’ Disqualification Rules, 1997 - Rule 3(5) Disqualification under Rule 3(5). - Non-withdrawal of nominations in Assembly Election inspite of direction/whip issued, not amounts to disqualification. - Any violation of directions either for vacating or abstaining or defying the whip must be in relation to functioning in the House and that too by leader of the party in the House. In the present petitions what is attributed to the petitioners the cause of disqualification, is that in assembly election, they have submitted their nominations and in spite of the directions being issued that they have not withdrawn the nominations and, therefore, they have incurred disqualification. Such an act cannot be con sidered to be disqualification within the parameters of the Act and the Rules.

       Maharashtra Local Authorities Members’ Disqualification Rules, 1997 - Rules 6 and 7 - Petition seeking disqualification. - Petition seeking disqualification of a member or Councillor, must be filed in accordance with Rule 6 of Rules, 1997. - The petitions seeking disqualification were not filed strictly in accordance with Rule 6 of the Maharashtra Local Authorities Members Disqualification Rules, 1977 and if the Collector finds that the petition does not comply with the requirements, he has no other option than to dismiss the petitions. However, on receipt of the petitions, the Collector did not bother to exercise his power and jurisdiction conferred on him by Rule 7; but it appears that somebody else from his office has gone through the petitions and put up a note for direction of issuing notices to other side. Such action or act on the part of the Collector and, for that purpose, the officer concerned, is in utter defiance with the dictate of the statute. In all these petitions that the Collector who is authorized under the statute to disqualify and dislodge an elected representative from the elected post, has handled the matter in so casual and negligent manner as if he is dealing with some ordinary routine official business. Such practice has to be deprecated and condemned with strongest words. Rigour of Rule 7 has to be followed which refers to the procedure that is to be followed and for providing such rigorous procedure is apparent that the elected representatives should not be summoned to answer the frivolous petitions, filed at the instance of "meddlesome interlopers" or "busybodies" or "wayfarers". If one reads sub-rule (4) of Rule 7 it was bounden duty of the Collector to deter mine the question of maintainability on making preliminary enquiry. Taking cognizance of the petitions by the Collector and that too on the notes presented to him either by his subordinates or by someone else discloses non-application of mind and dereliction of duty. Therefore, the Collector exercised his jurisdiction which is not vested in him in ordering notices to be issued to the respondents therein. Therefore, the result is that the Disqualification Petitions filed under the Act and the Rules require to be dismissed or rejected as not maintainable. All the petitions do not conform and comply the provisions of Rule 6 read with 7 and hence the Collector committed serious error appearing on the face of the record in entertaining the petitions. All the Disqualification Petitions have to be dismissed.