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2012 Supreme(Bom) 936
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
R.K. DESHPANDE, J.
Fazalur Rehman Gulam Nabi
Vs.
Raziya Begam Sayyed Natiquiddin Khatib & Ors.
Writ Petition No.1110 of 2012
Decided on: 4th May, 2012
Advocate Appeared:
Shri P.C. MADKHOLKAR, Advocate for Petitioner.
Shri S.V. SOHONJ, Advocate for Respondent No.1.
Shri B.N. MOHTA, Advocate for Respondent No.2.
Smt. B.H. DANGRE, Additional Government Pleader, with Shri K.L. DHARMADHIKARI, AGP for Respondent Nos.3 and 4.
Headnote:MAHARASHTRA LOCAL AUTHORITY MEMBERS’ DISQUALIFICATION ACT, 1987 - Section 3(1)(a), (b) - Mah. L.A.M.D. Rules, 1987, Rules 6 and 7(1) - Petition for disqualification of Councillor. - Collector, while adjudicating petition under Rule 6 of Rules, 1987 for disqualification of Councillor under Section 3(1)(a) of Act must record findings in terms of Rule 6(1)(a) of Rules.
The petitioner filed the petition before the Collector under Rule 6 of the Maharashtra Local Authority Members’ Disqualification Rules, 1987 for disqualification of respondent No. 1 Municipal Councillor under Section 3(1)(a) of Maharashtra Local Authorities Members’ Disqualification Act, 1986. The Collector has dismissed the said petition. The Collector has not taken any effort to find out as to what are the material facts giving rise to a claim for disqualification under clause (b) of sub-section (1) of Section 3 of the said Act and whether those facts are pleaded in the petition. The Collector has recorded the finding that there are reasonable grounds for believing that a question has arisen as to whether the said Councillor has become subject to disqualification under the said Act. However, what are the grounds raised to seek disqualification, has not at all been stated. The Collector failed to perform his statutory duty conferred by sub-rule (1) of Rule 7 of the said Rules. The order impugned cannot, therefore, be sustained and the same will have to he quashed and set aside and the matter will have to be remanded back to the Collector to decide it afresh in accordance with law.
MAHARASHTRA LOCAL AUTHORITY MEMBERS’ DISQUALIFICATION RULES, 1987 - Rule 7(1) - Nature of provision. Since Rule 7(1) of Rules 1987 is mandatory in nature hence Collector, while adjudicating a petition under Rule 6 for disqualification of Councillor, has to findout as to what are actual defects and deficiencies in complying with requirements of Rule 6 of Rules.
Rule 6 uses the word ’shall’ so as to indicate the mandatory nature of duty cast upon the Collector. In the process of adjudication, the Collector has to find out as to what are the actual defects are deficiencies in complying with the requirements of Rule 6 of the said Rules.
If the defects or deficiencies found are only of a formal or technical nature, then the Collector may issue appropriate directions to the petitioner to cure or rectify such defects or deficiencies so that the other side is also given an opportunity to meet the case and the enquiry is not frustrated or obstructed by introduction of technicalities. While issuing such directions, the Collector may stipulate the time-limit within which such defects or deficiencies are to be cured of rectified and the consequence of failure to cure or rectify the defects or deficiencies within stipulated time. The provision of sub-rule (1) of Rule 7 is, therefore, mandatory.
Leave to amend the prayer clause is granted. Necessary amendment be carried out forthwith.
2. Rule, made returnable forthwith. Heard finally by consent of the learned counsels appearing for the parties.
3. The respondent No.1 Fazlur Rahman Gulam Nabi has filed the petition before the Collector under Rule 6 of the Maharashtra Local Authority Members' Disqualification Rules, 1987 (for short, "the said Rules") for disqualification of the petitioner as a Municipal Councillor under clause (a) of sub-section (1) of Section 3 of the Maharashtra Local Authority Members' Disqualification Act, 1986 (for short, "the said Act"). The petitioner, on receipt of the notice of the petition, filed an application under sub-rule (2) of Rule 7 of the said Rules for dismissal of the petition for noncompliance of Rule 6 of the said Rules. The Collector has dismissed the said application and hence this petition.
4. The Collector has recorded the finding in his order that the petition contains the statements of material facts running into more than 20 pages. The finding is also recorded that the respondent No.1 has also verified the documents attached to the petition, that the petition is verified and signed by the respondent No. 1, that there is a pleading that the respondent No.1 is a Councillor of the Municipal Council, and she has a locus to file the petition. The further finding is recorded that there are reasonable grounds for believing that a question of disqualification of the petitioner has arisen and that there is a Substantial compliance with Rule 6 of the said Rules. The finding is also recorded that the rest of the objections raised pertain to the merits of the matter. Hence, the application for dismissal of the petition has been rejected.
5. The questions involved are (i) whether the provision of sub-rule (1) of Rule 7 of the said Rules confers a statutory duty upon the Collector to see whether there is a compliance of Rule 6 of the said Rules, and (ii) If it is so, then how and in what manner such compliance is required to be seen by the Collector.
6. Rule 6 of the said Rules being relevant, is reproduced below:
"6. References to be by petitions.-- (1) No reference of any question as to whether a councillor in relation to a municipal party and a Zilla Parishad party or member in relation to a panchayat Samiti party has become subject to disqualification under the Act shall be made except by a petition in writing to the Commissioner in the case of a councillor of a Municipal Corporation and the Collector in the case of any other councillor or member, by any other councillor or, as the case may be, member, in relation to such councillor or, as the case may be, member.
(2) Before making any petition in respect of a councillor in relation to a municipal party and a Zilla Parishad party or a member in relation to a Panchayat Samiti party, the petitioner shall satisfy himself that there are reasonable grounds for believing that a question has arisen as to whether such councillor or, as the case may be, member has become subject to disqualification under the Act.
(3) Every petition-
(a) shall contain a concise statement of the material facts on which the petitioner relies; and
(b) shall be accompanied by copies of the documentary evidence, if any, on which the petitioner relies and where the petitioner relies on any information furnished to him by any person, a statement containing the names and addresses of such persons and the gist of such information as furnished by each such person.
(4) Every petition and any annexure 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. Rule 6 of the said Rules indicates that the Collector has to apply his mind to find out as to whether the petition has been presented by a Councillor, whether the petitioner is satisfied himself that there are reasonable grounds for believing that a question has ari
