Advocates:
['VAKIL SATYAJIT R', 'CAVEAT FILED BY ADV J R SHAH', '', 'COPY SERVED', 'JETHLIYA DHIRAJ R ADV', 'R/ SERVED', 'D N KAKADE', 'UMAKANT P GIRI', 'UMAKANT P GIRI ADV']

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO. 4339 OF 2011

Nilesh Nagindas Mistry @ Prajapat

.. Petitioner

Versus

Govindrao Ramu Vasave and others

.. Respondents

Shri P. M. Shah, Senior Counsel i/by Shri S. R. Vakil, Advocate

for the Petitioner.

Shri J. R. Shah, Advocate for the Respondent No. 1.

Shri D. N. Kakade, Advocate for the Respondent No. 2.

Shri D. R. Jethliya, Advocate for Respondent Nos. 3 to 7.

CORAM : S. V. GANGAPURWALA, J.

DATE ON WHICH RESERVED FOR ORDER

: 28/09/2011

DATE ON WHICH THE ORDER PRONOUNCED

: 23/01/2012

PER COURT :

.

The present petitioner was elected as councillor of Navapur

Municipal Council as an independent candidate from Ward No. 9

in the General Elections of the Municipal Council Navapur held

on 26th November, 2007.

2.

The Presidential election of the IInd term of the Municipal

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Council were held on 23rd June, 2010. The respondent No. 1 lost

the said election of the President of the Municipal Council. The

respondent No. 1 filed disqualification petition bearing No.

06/2010 against the present petitioner and five others. The

present petitioner was the respondent No. 6 in the said

disqualification petition. The Collector, Nandurbar allowed the

said disqualification petition and disqualified the present

petitioner U/Sec. 3(2) of the Maharashtra Local Authority

Members' Disqualification Act, 1986 (for the sake of brevity

hereinafter referred to as "Disqualification Act of 1986"). The

petitioner has assailed the said judgment and order in the

present writ petition.

3.

Shri P. M. Shah, the learned Senior Counsel instructed by

Shri S. R. Vakil, the learned counsel for the petitioner

strenuously contends that Sec. 3(2) of the Disqualification Act of

1986 mandates that a candidate who is elected as a councillor

otherwise than as a candidate set up by any political party or

aghadi or front for being disqualified should join any political

party or aghadi or front after such election. The petitioner had

not joined any political party, as such, has not lost his identity as

an independent councillor. The learned senior counsel further

contended that, the application which was filed to the Collector

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on or about 18.06.2010 by the petitioner and other six persons

stating that a separate group is formed and Shri Farukh Shabbir

is the leader, is rejected by the Collector and so no separate

group came to be formed. In such circumstances, even otherwise,

the separate group had not come into existence in its legal sense

and so it cannot be said that the petitioner stands disqualified.

The Collector has failed to consider the provisions of Sec. 3(2) of

the Disqualification Act in its proper perspective. The petitioner

is democratically elected councillor of the Municipal Council.

The elected candidate cannot be disqualified except according to

the provisions rendering the candidate disqualified. The aghadi

as contemplated U/Sec. 2(a) refers to pre-poll aghadi. In view of

the same, the petitioner cannot be held to be disqualified U/Sec.

3(2) of the Disqualification Act of 1986.

4.

Shri J. R. Shah, the learned counsel for the respondent No.

1 supports the judgment and submits that the petitioner stands

disqualified U/Sec. 3(2) of the Disqualification Act of 1986. The

petitioner along with the present respondent Nos. 3 to 7 formed a

separate group. They had also given an application to the

Collector to register their group separately. Simply because the

said application is rejected would not make any difference. The

registration/non registration of the group would not make any

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difference. It is not that