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2011 (5) ALL MR 555
In the High Court of Bombay at Aurangabad
S.V. GANGAPURWALA
Jitendra Himmat Biraris & Others
Versus
Kiran Gulabrao Patil & Another
WRIT PETITION NO. 4146 OF 2011 WITH WRIT PETITION NO. 4147 OF 2011 WITH WRIT PETITION NO. 4148 OF 2011 WITH WRIT PETITION NO. 4149 OF 2011 WITH WRIT PETITION NO. 4150 OF 2011
Decided on : 05-08-2011
The object underlying the provisions in the Xth Schedule of the Constitution is to curb the evil of political defection motivated by lure of office or other similar considerations which endanger the function of our democracy. The remedy proposed is to disqualify the member of either House of Parliament or to the State Legislature who is found to have defected from continuing as a Member of the House. The grands of disqualification are specific in para 2 of the Xth Schedule.
The Disqualification Act is enacted with same object. The object to be achieved by enacting the Maharashtra Local Authorities Members’ Disqualification Act can be viewed from its long title which states it is an act to provide for disqualification of members of certain authorities on ground of defection and for matters incidental and connected therewith. The said Act is modelled on the Xth Schedule of the Constitution wherein the member of the either House of Parliament or of State Legislature is sought to be disqualified. The Act is introduced to curb the political immorality.
Maharashtra Local Authorities Member’s Disqualification Act, 1986 - Section 3(1)(b)-Disqualification of members-Words "directions issued" used in Section 3(1)(b) of Act-Interpretation of-Meeting called by leader of party-Reciprocal duty of members of party to attend same-In said gathering, if some directions issued-Presumed to be known to all members-Specific service of said directions not contemplated by Section 3(1)(b) of Act.-In the present case, the object of the enactment as discussed in earlier paras is to provide for disqualification of members of certain authorities on ground of defection and for matters incidental and connected therewith. The object is to ensure that the voters of the constituency that the elected members represent should not be duped by him. They cannot be taken for a ride by the change of the affiliation by such a member to another political party. In the light of the said object the word "directions issued" as appearing in Section 3(1)(b) of the Disqualification Act will have to be interpreted. When the meeting is called, it is expected that all the members shall attend the same. When the meeting is called by the leader of the party, it is reciprocal duty of the members of the party to attend the same and in the said gathering if some directions are given or issued, it is expected and presumed that the same would be known to all the members. So specific service of the said directions is not contemplated by Section 3(1)(b). A dishonest member to avoid the actual service would go into hiding or would see to it that the whip is not actually served upon him. As in the present case, stand is taken by the petitioners in evidence of Rajani Gharate one of the petitioners that all these petitioners on 20.12.2008 had gone for pilgrimage and were out of city and returned only on 30.12.2008. If the words "directions issued" are to be interpreted as served, then that would frustrate the very purpose of the enactment and the provisions. Keeping this in view, the Legislature in its wisdom has used the terminology "directions issued" and not served. Otherwise, there was no impediment for the Legislature to use the expression directions "served" instead of directions "issued".
All these petitions involve common question of law and are based on same factual matrix, as such are decided together.
2. The petitioners are elected as councillors of Zilla Parishad, Dhule in the General Elections of 2008 having contested the said elections as belonging to Nationalist Congress Party (hereinafter called as "N.C.P." for the sake of brevity). The party position of elected councillors is as under :
1. Indian National Congress : 21
2. Nationalist Congress Party : 08
3. Shiv Sena : 14
4. Bhartiya Janta Party : 09
5. Independent : 03
Total : 55
3. After the declaration of the result, the Returning Officer called special meeting for the election of the President and Vice President of Zilla Parishad Dhule to be held on 30th December, 2008 at 3.00 p.m. In the said special meeting one Sudhir Sudhakar Jadhav representing Shiv Sena party was elected as President and Bharat Nanabhau Ise representing Bhartiya Janta Party was elected as Vice President. The petitioners cast vote to these persons for the post of President and Vice President.
4. The respondent No. 1 filed petition under Rule 6 of the Maharashtra Local Authority Members' Disqualification Rules 1987 seeking disqualification of the petitioners. According to the respondent No. 1 he was elected as party leader of the Zilla Parishad. Whip was issued directing members of the N. C. P. to vote Budha Hiraman Pawar of Congress I for the post of President and Smt. Lalita Motiram Bahiran of N. C. P. for the post of Vice President. The petitioners herein defied the said whip and cast their vote to Sudhir Sudhakar Jadhav and Bharat Nanabhau Ise for the post of President and Vice President respectively. As such, sought for the disqualification of the petitioners.
5. The Collector, Dhule vide its judgment and order dated 07.06.2011 allowed the petitions filed by the respondent No. 1 and held that the present petitioners are disqualified as members of Zilla Parishad, Dhule. The petitioners have assailed the said judgment and order in the present writ petitions.
6. S/Shri V. J. Dixit, learned Senior Counsel instructed by Shri P. D. Bachate, Shri R. R. Mantri, Shri V. D. Hon, Shri R. B. Raghuwanshi, learned counsel for Petitioners canvased their arguments on behalf of petitioners. Whereas, S/Shri P. M. Shah, learned Senior Counsel instructed by Shri Amol Sawant, Shri Anturkar, Shri R. N. Dhorde and Shri S. S. Deshmukh, learned counsel advanced arguments on behalf of respondent No. 1. 7. Shri V. J. Dixit, the learned senior counsel during the course of his erudite arguments strenuously canvassed the following propositions :
i) The rules governing the proceedings under the disqualification rules have to be strictly adhered. If the rules are not followed then the proceedings before the Collector itself stand vitiated. The said proceeding has the effect of unseating a person from an elected office held by him pursuant to his victory at polls and it also affects the constituency represented by such councillor. For the said purpose the learned senior counsel relied on the judgment of the Apex Court in a case of Sadashiv H. Patil Vs. Vithal D. Teke reported in 2001(1) Mh. L. J. 312.
ii) There is variance between the pleadings and proof. The respondent No. 1 in his petition before the Collector had specifically averred that he was elected as a leader of the Zilla Parishad party of N. C. P. in the meeting held on 30th December, 2008, whereas there is no record to show that the respondent No. 1 was elected as the leader of the Zilla Parishad Party on 30th December, 2008, nor there are any proceedings of 30th December, 2008 showing that he was elected as leader of the party on 30th December, 2008. The extract of the proceedings produced along with the petition is of the meeting allegedly dated 27.12.2008. As such, there is variance between pleading and proof. In such, circumstances the evidence contrary to the pleadings cannot be considered.
iii) The extract of the alleged
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