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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH, NAGPUR.
A.H.JOSHI AND R.C. CHAVAN, JJ.
Deepak Shankarlal Jaiswal, PETITIONERS .
VERSUS
State of Maharashtra, through its Secretary, RESPONDENTS.
WRIT PETITION NO.81 OF 2007.
Decided on: AUGUST 20, 2007.
Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 - Sections 51 and 51-A - Simultaneous election of President and Vice-President of Municipal Council - Collector’s Chairmanship - Challenged - As bad - Held - It cannot be said that there is any irregularity or illegality in election. - The special meeting convened under sub-section (2) of Section 51 refers to the special meeting convened by the Collector to elect President. It is, thus, clear that both President and Vice President have to be elected at the same meeting which is convened by the Collector.
The procedure of election is laid down in the Maharashtra (Municipal Councils) (Conducts of Elections of President and Vice President’s) Rules, 1967. these rules are also amended in the year 2005 by notification dated 8th December, 2006. Though there is some conflict, inasmuch as the words "special meeting" have been substituted by "first general meeting" in the rules whereas Sections 51 and 51-A of the Act refer to special meeting, it is not significant since the amended rules provide for elections immediately at the same meeting, notice whereof is required to be given three days prior to the date of meeting. The rules, as amended by notification dated 2nd March, 2005, already provide for election by show of hands instead of secret ballot.
Maharashtra Local Authorities Members Disqualification Act, 1986 - Disqualification - Defiance of whip - Notice not issued to respondents - Contention that Collector through his nominee chairing meeting - Aware that respondents defied whip - Notice not necessary - No automatic disqualification can be - Procedure prescribed as in Rules to be followed. - The question as to whether a member has incurred disqualification has to be decided by the Collector in view of the provisions of Section 7 of the Act. The contention of the Advocate for the petitioner that this disqualification would be automatic, since respondent Nos. 4 to 6 had defied the whip in presence of Collector’ s nominee, has to be rejected, because under Rule 6 of the Maharashtra Local Authority Members’ Disqualification Rules such a question has to be referred by a petition in writing to the Collector, and under Rule 7, upon receipt of such a petition, the Collector has to forward copies o f the petition to the councillor concerned who has to forward his comments to the Collector. After following elaborate procedure prescribed under Rule 7, the Collector would decide the petition under Rule 8.
1. Rule. By consent made returnable forthwith.
2. Heard learned Advocate Shri P.C. Madkholkar for the petitioners, learned Additional Government Pleader Mrs. Bharati Dangre, for respondents No.1 to 3, learned Advocate Shri A.S.Kilor for respondents No.4, 5 and 6 and learned Advocate Shri R.K. Deshpande for respondents No.7 and 8.
3. The petitioners, Municipal Councilors of Municipal Council, Chandrapur had contested election for the post of President and Vice President respectively, were defeated at the election meeting dated 18.12.2006 convened by the Collector and chaired by the Collector's nominee. The petitioners assailed election on the ground that they had contested election as nominees of Shivsena-B.J.P. alliance. Shivsena had issued whip directing its councilors to vote for the petitioners. Respondents No.4, 5 and 6 had been elected to the Municipal Council as candidates belonging to Shiv Sena. They, however, defied the whip and also are disqualified to continue as municipal councilors in terms of the Maharashtra Local Authority Members' Disqualification Act, 1986. According to the petitioners, since the Collector through his nominee was chairing the meeting, and was aware that respondents No.4 to 6 had defied the whip, there was no further necessity of issuing any notice to respondents No.4 to 6, or giving them hearing in the matter of disqualification. After waiting for fifteen days to ascertain whether defiance of respondents No.4 to 6 was condoned, on 16.01.2007 the Collector was obliged to disqualify the respondents in view of the provisions of Maharashtra Local Authority Members' Disqualification Act, 1986.
4. It was further contended that the election meeting itself was held in breach of the provisions of the Maharashtra Municipal Councils (Conduct of Election of President & Vice-President) Rules. It was stated that under the rules only election of the President was to be conducted by the Collector and meeting for electing the Vice President was to be chaired by the President. Therefore, election of the President and Vice President at a composite meeting was vitiated as contrary to the provisions of the Rules. The petitioners, therefore, assailed the election of respondents No.7 and 8 as President and Vice President respectively.
5. In the affidavit in reply filed on behalf of respondents No.4 to 6 the respondents No.4 to 6 disputed that any whip was received by them, directing them to vote for the petitioners. They stated that the petitioners belong to Nationalists Congress Party (NCP) and B.J.P. respectively and that there was no collation between Shiv Sena to which respondents No.4 to 6 belong, and NCP. Therefore, they state that they have not defied any whip and are not liable to be disqualified. 6. In affidavit in reply, filed on behalf of the respondents No.7 and 8, it is stated that there was no evidence to show that there was alliance between Shiv Sena and B.J.P. and that candidates of Shiv Sena and B.J.P. had contested separately. In view of this, there was no question of respondents No.4 to 6 being obliged to vote for a candidate belonging to another party. These respondents also denied that any whip was issued directing respondents No.4 to 6 to vote for petitioners. They denied that there was any violation of rules regarding conduct of elections and therefore, prayed for dismissal of the petition.
7. On behalf of respondents No.2 and 3 it has been stated in the affidavit in reply that the provisions of the Maharashtra(Municipal Councils), (Nagar Panchayats and Industrial Townships) Act, 1965 have been amended by amending Act No.36 of 2006, which received the assent of the Governor on 13.06.2006, whereby Section 51 and 51-A were amended. Under the new dispensation election of President and Vice President both was to be conducted simultaneously by the Collector and accordingly the election was conducted
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