Sow. Shantabai w/o. Dattu Surwade vs State of Maharashtra

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2010 Supreme(Bom) 1578

IN THE HIGH COURT OF JUDICATURE AT BOMBAY AURANGABAD BENCH
R. M. BORDE, J.
Sow. Shantabai w/o. Dattu Surwade – Appellant
Vs.
State of Maharashtra & Ors. – Respondents
Writ Petition No.8936 of 2010 WITH Writ Petition Nos.8988, 8937,8985,9350, 9003, 8998,9013,9006,9007 of 2010
Decided on : 29th October, 2010.

Advocates appeared:
Mr. N. L. JADHA V, Advocate for the Petitioner.
Mr. N. B. KHANDARE, GP for the State.
Mr. P. M. SHAH, Sr. Counsel i/by Mr. S. P. SHAH,
Advocate for Respondent No.3.
Mr. GIRISH WANI, Advocate for Respondent No.4.

Headnote:Maharashtra Local Authorities Member’s Disqualification Act, 1986 - Section 3(1)(b)-Maharashtra Local Authorities Members Disqualification Rules, 1987, Rule 6-Municipal Council-President of Election of by Councillors-Disqualification-Allegation of disobeying ’whip’ issued by party leader of pre-poll alliance-Petitioner, candidates not elected as independent candidates-Collector rightly disqualified petitioner-Another petitioner, obtained from recording his vote as per ’whip’ also rightly disqualified as councillor by Collector.-So far as writ petition No. 9350/2010 is concerned, it is contended by counsel for the petitioner that the petitioner was not a candidate set up by the Aghadi and contested the election as an independent candidate. However, there is ample evidence placed on record to demonstrate that there was formation of Aghadi within meaning of Section 2(a) of the Act of 1986, the Aghadi was registered with the Collector, there was municipal party in relation to the councillor belonging to the Aghadi which has been recognised by the Election Com- mission, the Aghadi having been registered, declaration has been lodged in prescribed profora as contemplated by Rules of 1987 by the leader of the Aghadi, as per constitution of the Aghadi respondent Manoj Biyani is the leader of the Aghadi and that he has issued the whip and further that the whip has not been observed by the petitioner. The constitution presented with the Collector at the time of registration of the Aghadi bears the signatures of all the councillors/petitioners herein including the petitioner in writ petition No. 9350/2010. Not only that the concerned councillor has tendered declaration in form IV as contemplated by Rules of 1987 informing the Collector that he has joined the Aghadi. He has also tendered affidavit with the Collector in that regard. The list of the councillors tendered by the leader of the Aghadi includes the name of the petitioner so also the entry in respect of the petitioner being the member of the Aghadi is recorded in the register maintained in the office of the Collector. Thus, there can be no dispute that the petitioner was the member of the Aghadi and the directives issued by the leader are binding on him. The order passed by the Collector disqualifying the petitioner in writ petition No. 9350/2010 does not appear to be erroneous. There is no reason to cause interference in the order passed by the Collector.
One of the councillors/petitioner in writ petition No. 9006/2010 was not present at the meeting. It is thus contended that his abstention cannot be a ground for disqualification and specially when, according to the petitioner, the procedure laid down in Rule 3(5) of the Rules of 1987 has not been followed. It is to be noted that the abstention is a ground incorporated in Section 3 of the Act for declaring the councillor disqualified. There is evidence to the effect that the concerned petitioner is a member of Aghadi and inspite of service of whip he has abstained from recording his vote. Abstention of the petitioner has not been condoned by the leader of the Aghadi and as such there is no reason to cause any interference in the order passed by the Collector holding him disqualified to continue as the councillor of the Municipal Council.

JUDGMENT

In a1l these petitions the petitioners who are the elected Councilors of the Municipal Council Bhusawal are raising exception to the order passed by the Collector, Jalgaon holding them disqualified to continue as the Councilors of the Municipal Council. Bhusawal. The orders are passed by the Collector on consideration of petitions tendered by one Mr. Manoj Biyani/respondent herein under the provisions of section 3 of the Maharashtra Local Authority Members Disqualification Act of 1986 (hereinafter referred to as 'Act of 1986') r/w. Rule 6 of the Maharashtra Local Authority Members' Disqualification Rules, 1987 (hereinafter referred to as "Rules of 1987").

2. Petitioners contend that in the general elections to the Municipal Council held in the month of October - November, 2006, the petitioners were declared elected on 21-112006 as independent candidates. The Election Commissioner published election results in official gazette declaring the petitioners to have been elected as the Councilors. It is specific contention of the petitioners that they are elected as independent candidate and the certificates issued by the Election Commission also declare that they have been elected to the Municipal Council as the independent candidates. There was a proposal for registration of Shahar Bachav Aghadi as municipal party in pursuance to the application presented by one Manoj Biyanil respondent herein. However, according to the petitioners, said proposal was withdrawn by him on 22-11-2006. It is denied by the petitioners that there was a pre-poll aghadi or that they are the members of any such Aghadi titled as "Shahar Bachav Aghadi". It is contended that said Aghadi has not been registered as a municipal party required under the provisions of the Act. After the general elections to the Bhusawal Municipal Council the elections to the President were held and one Madhuri Falak was elected as the President who continued to occupy the post for about 2-1/2 years. Her term came to an end in the month of August, 2009 and the process for election of the successor President for remaining term of2-1/2 years was initiated. It is contended that one Manoj Biyani claims himself to be the President of "Shahar Bachav Aghadi" which has membership of about 28 members, according to him, and he directed the members to vote in favour of his wife who was also a candidate at the elections of President. It is contended that in the meeting convened on 28-6-2009 the votes were recorded and during the process Smt. Sangita wla Manoj Biyani secured 15 votes whereas her rival candidate belonging to Nationalist Congress Party Smt. Rekha Choudhari secured 30 votes and as such she was (Mrs. Rekha Choudhari) declared as elected. It is the contention of the petitioners that Mr. Manoj Biyani/respondent herein claiming himself to be the President of "Shahar Bachav Aghadi" and group leader of the municipal party, presented different applications to the Collector praying therein to hold the petitioners herein disqualified to continue as the Councilors of the Municipal Council. The petitioners in these petitions have seriously disputed formation of Shahar Bachav Aghadi" which is a pre-poll Aghadi or formation of the municipal party for Bhusawal Municipal Council. It is also seriously disputed that respondent herein/Manoj Biyani to be the President/Group Leader of the municipal party and his entitlement to issue whip requiring the petitioners to cast vote in a particular manner. The petitioners have also denied to have received any communication in respect of issuance of whip nor the petitioners have been communicated in respect of setting of the candidature of Smt. Sangita Biyani for the post of the President. The petitioners contend that as they were not members of 'Shahar Bachav Aghadi', they cannot be held disqualified on account of disobeying whip allegedly issued by respondent Mr. Manoj Biyani nor the petitions claiming action against them at the instance of responde

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