The Divisional Commissioner has the power to decide the dispute as to who is and can be regarded as a group leader, and should decide it simultaneously with the disqualification proceedings.

JUDGMENT :

Mangesh S. Patil, J.

1. Heard. Rule. The Rule is made returnable forthwith. Learned AGP waives service for the respondent Nos.1 and 2. Learned advocate Mr. V.B. Patil waives service for respondent No.3. Learned advocate Mr. Deshmukh holding for Mr. Sandesh Patil waives service for respondent No.4. Learned advocate Mr. Palodkar waives service for respondent No.5. At the joint request of the parties, the matter is heard finally at the stage of admission.

2. The issue that calls for decision in this proceeding is as to whether a Divisional Commissioner has a power to take a decision as to whether an individual is a group leader of a municipal party under the provision of the Maharashtra Local Authority Members’ Disqualification Act, 1986 (hereinafter the Disqualification Act) and the Maharashtra Local Authority Members’ Disqualification Rules, 1987 (hereinafter the Disqualification Rules) framed thereunder.

3. The facts as are necessary for the decision of the Writ Petition may be summarized as under :

i. Election to the Jalgaon Municipal Corporation was held on 03.08.2018, for electing councillors on 75 seats. 57 candidates set up by Bharatiya Janata Party (BJP), 15 candidates of Shiv Sena and 3 candidates of MIM were elected.

ii. As per Rule 3 of the Disqualification Rules, the 57 councillors of BJP elected the petitioner amongst themselves to be the group leader who furnished information about the municipal party to the Commissioner (Respondent No.2).

iii. After two and half years, when the elections of Mayor and Deputy Mayor were to be held the petitioner issued a whip on 14.03.2021 but 27 councillors from his municipal party allegedly defected and cast vote in favour of one Ms. Jayashree Mahajan.

iv. The petitioner initiated a proceeding for disqualification under the Disqualification Act against those 27 members.

v. On 17.06.2021 allegedly a meeting was held wherein the respondent No.5 was elected by the municipal party as its group leader.

vi. The petitioner raised an objection before the respondent No.2 Divisional Commissioner apprehending the change for replacing him as a group leader.

vii. The respondent No.5 independently claiming to be the group leader by submitted information to the respondent No.2 Commissioner.

viii. In view of such a controversy the Municipal Commissioner of the respondent No.3 Corporation addressed a letter to the respondent No.2 Commissioner and sought guidance.

ix. The respondent No.2 Commissioner in response, by his letter dated 14.09.2021 expressed that he had no power to determine and acknowledge any change in the group leader.

x. It is this communication which is under challenge in this petition.

4. The learned advocate Mr. Brahme took us through the provisions of the Disqualification Act and the Disqualification Rules and submitted that it is a statutory obligation of the councillors to elect a group leader who in turn is under a similar obligation under Rule 3 to submit information to the Commissioner. He would submit that such information under Rule 4 is thereafter to be maintained by the Commissioner. Any change, thereafter occurring is to be reported to him and if there are rival claims it is implied that he would take a decision as to who between these two persons can be recognized as a group leader. The conduct of the respondent No.2 Commissioner in expressly stating that he had no power demonstrates his refusal to exercise the jurisdiction vested in him. He could not have acted as a postman. A statutory duty has been cast upon him to decide as to who is the group leader when rival claims are being set up. Though there are no elaborate provisions to expressly indicate that he has such power of adjudication, it is implicit in the scheme of the Act and the Rules for him to take some decision. He cannot refuse to act when the duty requires him to take a decision. The respondent No.2 has abdicated his duty and it be so declared by issuing a mandamus to decide the dispute.

5. Mr. Brahme in