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2011 Supreme(Bom) 56
2011(5) ALL MR270
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)
V.R. KINGAONKAR, J.
Balaji Ganeshrao Bacchewar
Vs.
Laxman Ganeshrao Tahkkarwar & Ors.
Writ Petition No. 8576 OF 2010.
Decided On: 14th January, 2011.
Mr. V. J. DIXIT, Sr. Advocate i/b. Mr. P.D.BACHATE, Advocate for the Petitioner.
Mr. P. M. SHAH, Sr. Advocate i/b. Mr. S. S. NAIK, Advocate for the respondent no.1 Mr. S. K. TAMBE, AGP for the Respondent State.
Mr. S.G. SANGLE, Advocate for the respondent No.3
Headnote:Maharashtra Local Authorities Member’s Disqualification Act, 1986 - Section 3(1)-Disqualification-On ground of defection-Expression "has voluntarily given up his membership of such political party"-Implies an act which can be inferred on account of conduct of a member-It can also be inferred on basis of his own admission. -Disqualification of the councillor or a member may be attributable to his voluntarily giving up the membership of such political party or aghadi or front which had fielded him in the election and also on account of indiscipline committed by him due to non-compliance of the whip or directions. It is explicit that sub-clause (a) of sub-section (1) and sub-clause (b) of sub-section (1) of Section 3 operate in different fields. The proof regarding due service of the whip and due authority of the person who issued the whip is required to be proved if the question about the alleged disqualification would fall within the sub-section (b) of Section 3(1) of the MLAMD Act. There is no question of proof regarding issuance of whip and the other compliance required to be proved when the disqualification is attributable to Section 3(1)(a) of the MLAMD Act. What is required to be considered, therefore, is whether such a councillor or a member voluntarily gave up his membership of the political party which had fielded him to become such a member or councillor in the house. It is well settled that the expression "has voluntarily given up (9) WP 8576.2010 his membership of such political party" as used in Section 3(1)(a) of the MLAMD Act imply an act which could be inferred an account of conduct of a member. It can be also inferred on basis of his own admission. It is not necessary that in each and every case evidence is required to be adduced to infer the voluntary act of the member or councillor so as to hold that he has voluntarily given up the membership of the relevant political party.
Maharashtra Local Authorities Member’s Disqualification Act, 1986 - Section 3(1)-Disqualification of councillors or members-Process of disqualification-Process cannot be deferred by any means-It to be instantaneous-Only thing required, to declare such disqualification. [2004 (8) SCC 747-Relied on].-It is well settled that the disqualification process cannot be deferred by any means and it would be instantaneous. The only thing required was to declare such disqualification.
Maharashtra Local Authorities Member’s Disqualification Rules, 1987 - Rule 6(4)-Defect in affidavit-Improper verification of affidavit-Rule 6(4) of Rules directory in nature-Defect can be cured at any point of time-Defect, not vitiates proceedings in any case itself.-So far as the technical objections raised by the petitioner are concerned, it may be stated that the objection pertaining to improper verification of the affidavit appended to the application of the respondent No. 1 is not of substantial nature. It does not invalidate the proceedings. In Kedar Shashikant Deshpande etc. etc. v. Bhor Municipal Council and others etc. etc., Civil Appeal No. 10452-10457 of 2010, the Apex Court held that Rule 6(4) of the MLAMD Rules is directory in nature. The defect can be cured at any point of time. The defect does not, in any case, vitiate the proceedings itself.
1. By this Petition, the petitioner challenges the order of disqualification rendered by the learned Collector, Nanded, under section 3(1)(a) of the Maharashtra Local Authority Members Disqualification Act, 1986 (For short "MLAMD Act").
2. The petitioner contested the general elections for Zilla Parishad Nanded trom Barbada constituency. He was elected as a Councilor of Zilla Parishad, Nanded. There is no dispute about the fact that he was member of Bharatiya lanata Party (B.l.P.) prior to his such election and was elected as a candidate fielded by the B.J.P. for the Zilla Parishad elections. Later on, elections for the Legislative Assembly were declared. Allegedly, the District President of the B.J.P. on 25.9.2009 issued a whip to the effect that all the elected members of the B.J.P. shall support the recognized candidate who was fielded from 89th Naigaon M.L.A. Constituency. Admittedly, the petitioner filed his candidature vide nomination form dated 25.9.2009 as a candidate for 89th Naigaon M.L.A. Constituency on ticket of "lansurajya Shakti Party" a recognized political party. Though there is dispute about due service of the whip and the legal authority of the person who issued the whip, yet there is no dispute regarding the fact that the petitioner had contested the Legislative Assembly elections in the month of September, 2009 as a candidate fielded by the "lansurajya Shakti Party".
3. The respondent no. I filed an application seeking declaration that the petitioner was disqualified to continue himself as elected member of the Zilla Parishad. The petitioner disputed the maintainability of the application on various grounds and chiefly on the ground that the application was not duly verified as per the procedure. He raised preliminary issue regarding the maintainability of the application on technical grounds of noncompliance of the rules which required due verification of the application and attestation thereof. The petition was however proceeded with. The learned Collector by order dated 3.8.2000, set out the issues involved in the matter.
4. It is worthy to be mentioned that the petitioner had filed Writ Petition no. 4514 of 2010 against the interim order dated 19.4.2010 rendered by the Collector whereby his objection regarding the maintainability of the proceedings was rejected. By order dated 28.5.2010, the learned Vacation Judge (Gangapurwala, J.) allowed the Petition and directed the Collector, Nanded to decide the application filed by the petitioner under rule 6 of the MLAMD Rules, 1987. It appears that thereafter the petitioner filed his elaborate written arguments.
5. The learned Collector did not decide the preliminary objection pertaining to maintainability of the application and instead of dealing the technical objection he proceeded to finally adjudicate the application on merits. The learned Collector came to the conclusion that the petitioner was disqualified because inspite of service of the whip, he had not supported the BJ.P. candidate from the 89th Naigaon M.L.A. Constituency, and on the contrary, had himself contested the election as a candidate fielded by the "Jansurajya Shakti Party". It is this order of the learned Collector that the petitioners seeks to impugn on the ground that the order is arbitrary, illegal and rendered without appreciating the purport of the order dated 28.5.2010 rendered by this Court.
6. Mr. Dixit, learned Senior counsel for the petitioner would submit that the Collector failed to decide the preliminary issue regarding the maintainability of the application filed by the respondent no. 1 and therefore, the impugned order suffers from illegality. It is argued that the petitioner was not given due opportunity by the learned Collector to explain his stance regarding non service of the whip as well as the nonavailability of the authority to the person who had issued the whip. It is contended that the petitioner could not be disqualified when there was no evidence led to infe
