901-cwp-8157-58-51-49-21@.doc

DSS

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 8157 OF 2021

WITH

WRIT PETITION NO. 8158 OF 2021

WITH

WRIT PETITION NO. 8251 OF 2021

WITH

WRIT PETITION NO. 8249 OF 2021

Hasmukh M. Ghelot

...Petitioner

V/s.

Divisional Commissioner

Konkan Division and ors.

...Respondents

-----

Mr. Mayur Khandeparkar i/b Mr. Chaitanya Nikte a/w. Ms Sneha Bhange

and Mr. Tarun Sharma for Petitioner in WP8158/21.

Mr. Chaitanya Nikte a/w. Ms Sneha Bhange and Mr. Tarun Sharma for

Petitioner in WP8157/21, 8251/21 and 8249/21.

Mrs. V.S. Nimbalkar, AGP for the Respondent / State..

Mr. D.H. Shukla for the Respondent No.2 in WP8157 and 8158/21.

Mr. D.K.Pandey for the Respondent No.2 in WP8249/21.

Mr. Parshuram P. Mhatre, Respondent No.2 in WP8251/21 present in

person.

-----

C0RAM : G. S. KULKARNI, J.

DATE : DECEMBER 09, 2021.

PC :

1]

The challenge in these petitions is to an order dated 29.10.2021

passed by the Divisional Commissioner, Konkan Division whereby the

applications as filed by the petitioner under the Maharashtra Local

Authority Members’ Disqualification Act, 1986 (for short “the Act”) praying

for disqualification of respondent No.2 in these petitions, for having

dishonored “the whip” issued by the petitioner who is the Gat Neta of the

Bharatiya Janata Party (BJP), in the elections to the post of Mayor and

1/7

901-cwp-8157-58-51-49-21@.doc

Deputy Mayor of the Mira-Bhayandar Municipal Corporation, have been

dismissed.

2]

Mrs. V.S. Nimbalkar, learned AGP for the respondent - State, at the

outset, raised an objection to the maintainability of these petitions, as also

supported by learned counsel for respondent No.2, on the ground that an

alternate remedy of an appeal is available to the petitioner under Section

7(3) of the Act, which provides thus:

“’ 7. Decision on question as to disqualification on ground of

defection. -

(1)

…..

(2)

…..

(3)

Any person aggrieved by the decision of the Commissioner

or Collector may, prefer an appeal before the State Government

within a period of thirty days from the date of such order.”

3]

Learned counsel for the petitioner referring to the specific averments

as made in the memo of these petitions would contend that although an

alternate remedy of an appeal is available to the petitioner, however, the

same is not an efficacious remedy for several reasons. For illustration, the

averments in this regard as made in Writ Petition No. 8158 of 2021 needs to

be reproduced, which reads thus :

“37.

The Petitioner states that there is an alternative remedy as per the

Maharashtra Local Authority Member’s Disqualification Act which provides an

Appeal before the State Government. However, the same is not the efficacious

remedy for the following reasons:

i.

The Appeal so provided is provided to the State Government. The

present State Government consists of Congress and Shivsena alongwith other

parties and the BJP is in opposition. In fact the Respondent No.2 has voted in

favour and for benefit of Shivsena and Congress which is the ruling party in the

state government.

ii.

Apart from the same the membership of the Respondent No.2 is valid

for only for 7-8 months and thereafter fresh elections are likely to be held. The

Petitioner believes that the state Government will not decide this issue in the

time bound manner.

2/7

901-cwp-8157-58-51-49-21@.doc

iii.

The said appreciations on the basis of the fact that as per the rules

every petition has to be decided within the period of 6 months however in the

present matter was lagged and derailed, somehow malafiedly for a period of

almost 1 ½ years.

iv.

Only after the intervention from this Hon’ble High Court the first

effective hearing took place in the complaint/petition filed by the Petitioner.

v.

Inspite of the directions from this Hon’ble High Court further extension

was sought from the office of Respondent No.1 which only reflects that

constantly the matter was delayed with ulterior m