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2009 Supreme(Bom) 1646
In the High Court of Bombay at Nagpur
THE HONOURABLE MR. JUSTICE B.P. DHARMADHIKARI
Chandrakant s/o Gajananrao Pise & Others
Versus
The Collector, having its office at Civil Lines & Others
Writ Petition No.4740 of 2009
Decided on : 03-12-2009
For the Petitioners:M.I. Dhatrak, Advocate. For the Respondents:R1, A.S. Fulzele, AGP, R3 & R4, A.S. Chandurkar, Advocate.
Headnote:Maharashtra Local Authority Member’s Disqualification Act, 1986 - Section 3 - Maharashtra Local Authority Members Disqualification Rules, 1987, Rules 6 and 7 - Disqualification - Application for declaration of - Petitioners filed application under Rule 7(2) of Rules - Rejected by Collector respondent-2 directing matter to be considered on merits - Petitioners contended that application presented by respondents 3 and 4 not verified by Collector - Original records produced by Collector shows endorsement of verification by himself - Notices issued to other side by Collector - Reference application filed by respondents 3 and 4 cannot be dismissed - Writ petition devoid of merit - Dismissed. - The original records produced by A.G.P. show the endorsement of verification by the Collector himself on Exh. 1 i.e. reference application. Advocate Dhatrak had only relied upon office note placed before the Collector to show absence of such verification. After noticing remarks of Collector on Exh. 1, he urged that those remarks are without any date. In impugned order, Collector has mentioned that he verified the reference application on 6.7.2009. Notices are issued to other side by him on 8.7.2009. In view of this position, mere contention that endorsement by Collector does not carry any date is without any worth. About the documents filed with reference application before the Collector, the stand of Advocate Chandurkar is that those documents pertain to the petitioner are within their knowledge and they have not denied existence thereof. It is further urged that those documents are signed in original by the applicant before the Collector. It is also pleaded that the reference application cannot be dismissed for any defect therein. The documents are annexed with their reference application by the present respondents 3 and 4. From rejoinder filed in High Court, Court finds that there is dispute in relation to some documents between parties. The signature put upon the documents is obviously with a view to attest its authority. Hence, in the light of above discussion the reference application of respondents 3 and 4 could not and cannot be dismissed as those provisions are only directory. Hence, no objection to the impugned order can be taken in this respect. Petitioners have not even urged that the documents filed are the annexures of the reference application. But then if respondents 3 and 4 wish to place any verification in relation to those documents, the respondent 1 Collector is directed to permit them to file it on record before further consideration of reference application by him.
The petitioners – the elected Councilors of Respondent No. 2 Municipal Council, Saoner, challenge the order dated 7/9/2009 passed by the Respondent No.1 Collector, Nagpur in Petition No. 4/2009 under Rule 6 of the Maharashtra Local Authority Members Disqualification Rules, 1987 (1987 Rules hereafter) in this writ petition under Article 226 & 227 of the Constitution of India. These 1987 Rules are framed under the Maharashtra Local Authority Members Disqualification Act, 1987 (1987 Act hereafter). It is not in dispute that Respondent No.2 is local authority constituted under Maharashtra Municipalities, Nagar Panchayats & Industrial Townships Act, 1965.
2. Respondents No. 3 & 4 before this Court filed a reference application viz. petition under Rule 6 of 1987 Rules for declaration that the present Petitioners are disqualified under Section 3 of 1987 Act and can not continue as Councilors of Respondent No. 2 Municipal Council. Petitioners filed an application under Rule 7 (2) of the 1987 Rules contending that the application as filed did not fulfill requirements of Rule 6 & 7 thereof. By order dated 7/9/2009 the Respondent No. 2 Collector rejected it. Collector found that application as also the documents/ annexures were signed by the applicants and it had proper solemn affirmation of applicant No. 1. Thus there was substantial compliance with Rule 6(4) and it was duly verified by him i.e. Collector and found it to be in accordance with Rule 7(1) of 1987 Rules. Collector therefore rejected that application of Petitioners and directed matter to be considered on merits.
3. I have heard Advocate M.I. Dhatrak for Petitioners, Advocate A.S. Chandurkar for Respondents No. 3 & 4 and learned AGP for Respondent No. 1. Nobody has appeared for Respondent No. 2 Council. Looking to the nature of controversy, Rule is made returnable forthwith and matter is heard finally by consent.
4. Advocate M.I. Dhatrak has contended that Collector did not verify the application as presented by the present Respondents No. 3 & 4 and said assertion in impugned order is factually incorrect. He has invited attention to relevant statutory provisions as contained in Rule 6(4) and Rule 7(1) and (2) and cited 2005 (4) Mah.L.J. 211 – Hariharrao Vishwanathrao Bhosikar vs. Datta Anandrao Pawar as also 2007 (6) Mah.L.J. 633 – Sayyad Tahir Hussain vs. State of Maharashtra. According to him as mandatory requirements are not fulfilled, the Collector refused to exercise jurisdiction by ordering its trial on merit. Learned AGP has produced the original records of Collector & urged that the substantial compliance noticed by the Collector can not be faulted with. He has pointed out that endorsement on application at Exh. 1 by the Collector himself in token of its due verification. Advocate A.S. Chandurkar for Respondents No. 3 & 4 has supplemented the stand of learned AGP for Respondent No. 1. He relies upon the impugned order and above endorsement made personally by the Collector to show compliance with 1987 Rules. He points out AIR 2005 SC 69 - Dr. Mahachandra Prasad Singh, v. Chairman, Bihar Legislative Council and others, to argue that the judgments of this Court cited supra do not consider the law correctly. He states that the documents filed are signed by applicants only to show that the same are authentic and Code of Civil Procedure does not require any verification.
5. 1987 Rules relevant here are as under:-
“6. References to be by petitions. - (4) Every, petition and any annexture thereto shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (V of 1908) for the verification of pleadings."
"7. Procedure.- (1) On receipt of a petition under Rule 6, the Commissioner, or, as the case may be, Collector shall consider whether the petition complies with the requirements laid down in that rule.
(2) If the petition does not comply with the requirements of Rule 6, the Commissioner, or, as the case may be, Colle
