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2007 Supreme(Bom) 1193
IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD
N.V. DABHOLKAR & M.G. GAIKWAD, JJ.
Sayyad Tahir Hussain Mainuddin - Appellants
Versus
State of Maharashtra - Respondents.
Decided on 24.08.2007
LETTERS PATENT APPEAL NO.117/2007
Advocate Appeared
Shri P.M. Shah, Senior Counsel, instructed by Shri S.P. Shah, Advocate for appellants.
Shri K.M. Suryawanshi, AGP for respondent no.1.
Shri V.J. Dixit, Senior Counsel instructed by Shri L.V. Sangeet, Advocate for respondent no.2.
Shri S.V. Gangapurwala, Advocate for respondent no.3.
Shri P.V. Barde, Advocate for respondent no.4.
Shri Y.V. Kakade, Advocate for respondent nos.5 to 13.
Headnote:Maharashtra Local Authorities Members Disqualification Act, 1986 - Rules 6 and 7(2) - Municipal Councillor - Election of - Application for disqualification of - Rejection of - On ground that documentary evidence accompanying reference petition not signed and verified in manner laid down in CPC - Non- compliance of same entails disqualification vide Rules 6(4) and 7(2) of Rules. - After considerable length of arguments and interaction between the lawyers and us, there was no disagreement that what is integral part of the petition would require signature and verification of the petitioner as laid down by sub-rule (4) of Rule 6. Therefore, the nomenclature of the material that is presented along with election petition or disqualification reference petition is immaterial. High Court feel irrespective of the fact whether it is described as annexure, schedule, enclosure, accompaniment or document, if the same is integral part of the petition, it would necessitate compliance of all statutory requirements. The question naturally arises as to what should be the test to determine as to whether a particular "document" is integral part of the election petition/disqualification reference and High Court feel that following two simple tests may provide the solution.
(1) It must be part of the petition by statutory requirement;
(2) It must be such, in absence of which, the petition would be incomplete.
The two illustrations narrated by Advocate really demonstrate that a map of the survey annexed to a suit for removal of encroachment would certainly be integral part of the suit. It passes the second test, because without such a map, it will not be possible for the plaintiff to demonstrate, which portion of his land is encroached upon nor it will be possible for the Court to p ass a decree, which can be conveniently executed. As against this, the agreement of sale in a suit for specific performance, may be a basic or fundamental document upon which the suit rests, but detailed description of the terms in the agreement of sale within the body of the plaint may enable the plaintiff to present the plaint initially without being accompanied by agreement of sale. The illustration by Advocate is certainly a good illustration for practical test. But more sound and stiff test should be the statutory requirement. If a particular statue require s preventative of particular type of litigation in a peculiar form and containing particular things within it and accompanying it, High Court feel everything that is required to be filed either within or with the petition, must be treated a part and parcel of the petition. This is because is petition is presented, short of any of the things required by the statue to accompany the same, it would be presentation of an incomplete petition. And here High Court was required to refer to Rule 6(3)(b), which High Court have already reproduced. Rules framed in exercise of the powers conferred by Section 9 of the Disqualification Act, 1987, must be said to be having statutory force and if the rules require the reference petitioner that the reference petition must be accompanied by copies of the documentary evidence, the documents do not lose their character as integral part of the reference petition, merely because they are "documentary evidence" for the purpose of drawing such an inference, High Court must remind ourselves that scheme of Sections 81 to 83 of Representation of People Act does not comp el the election petitioner to file copies of documentary evidence toget her with the election petition.
Per Dabholkar, J.
1. Appeal under Clause 15 of the Letters Patent challenges order passed by learned Single Judge of this High Court in Writ Petition No.2366/2007 on 24.4.2007. By the impugned order, learned Judge was pleased to allow the writ petition partly.
2. The dispute is between recently elected Councillors of Udgir Municipal Council because of alleged disqualification incurred by some of the Councillors in view of provisions of the Maharashtra Local Authority Members’ Disqualification Act, 1986 (henceforth referred to as Disqualification Act for the sake of brevity). Elections to Udgir Municipal Council took place by voting on 19.11.2006. Appellants and respondent nos.2 to 13 alongwith 33 others were declared elected as Councillors. Elections for the seat of President and Vice President were scheduled on 21.12.2006. It is alleged that party had issued a whip regarding voting at the elections for President and Vice President. Appellants and respondent nos.4 to 13, according to respondent nos.2 & 3, refused to accept the whip and also voted contrary to the party whip. It appears from the whip issued on 19.12.2006 (paper book page 74) and 21.12.2006 (paper book pages 74 & 75). Party had not only issued a whip that at the elections for President and Vice President of Udgir Municipal Council, the elected members of the party must vote in favour of the candidates as may be indicated by the party whip, but it was specifically directed that the members should vote in favour of respondent no.3 (Basawraj Bagbande) for the purpose of election as President and respondent no.2 (Girish Patil) for the election of Vice President. In breach of this whip of the party, present appellants and respondent nos.4 to 13 are said to have voted in favour of respondent no.4 and Sudhir Bhosale respectively at the election for President and Vice President. . Respondent nos.2 & 3 filed disqualification application (reference) u/s 7 of the Disqualification Act against present appellants and respondent nos.4 to 13. Collector, Latur, was pleased to issue notices on 15.1.2007 in response to which appellants appeared on 31.1.2007 and sought time to file say. On 9.2.2007, appellants filed an application raising preliminary objections regarding the maintainability of disqualification application and prayed for dismissal of the same. Present respondent nos.2 & 3 filed their reply on 22.2.2007. By his order dated 17.3.2007, Collector, Latur, was pleased to dismiss the application challenging the maintainability of disqualification reference. Feeling aggrieved by the decision of the Collector, present appellants approached this Court by way of Writ Petition No.2366/2007 under Articles 226 & 227 of the Constitution of India. The writ petition is decided by learned Single Judge by impugned order and the same is partly allowed. 3. From the copy of said application available at paper book pages 94 to 98 challenging the maintainability of disqualification reference for non compliance of Rule 6 r/w Rule 7(2) of Maharashtra Local Authority Members’ Disqualification Rules, 1987, four grounds as under were raised against maintainability of disqualification reference: "(i) The petition has not been verified in the manner laid down in the Code of Civil Procedure, 1908; (ii) In the said petition large number of documents are annexed and same are annexed; however, the said annexures have not been signed by the petitioners and verified as provided in the Code of Civil Procedure, 1908. (iii) It is submitted that from the petition it is seen that petition is verified on 8.1.2007, this is recorded in the verification clause itself. In the said petition verified on 8.1.2007, in para 16 therein, the petitioners have referred to the affidavits filed by Shri V.B. Chakote, Shri B.V. Kale and Prof. B.V. Motipawale and it is further alleged that the said affidavits are also submitted herewith. It is now strange to now noticed that the said affidavit of Prof. B.V. Motip
