2007(3) ALL MR 146
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

V.A. NAIK, J.

Sandeep P. Kamble & Ors.Vs.Bhaskar A. Negle & Ors.

W.P. No.7391 of 2004,W.P. No.7400 of 2004,W.P. No.7403 of 2004,W.P. No.7404 of 2004

7th December, 2006

Petitioner Counsel: S. B. TALEKAR
Respondent Counsel: M. V. DESHPANDE

(A) Constitution of India, Art.226 - Writ jurisdiction - Rule of alternative remedy - Rule is only a consideration for exercise of discretion by writ court - It does not exclude jurisdiction of writ court in exceptional cases. (Para 14)

(B) Maharashtra Local Authority Members' Disqualification Act (1986), Ss.3(1)(b), 7 - Disobedience of party whip - Disqualification for - Declaration of disqualification of a Councillor entails serious penal consequences - Held, Collector or Commissioner while dealing with reference under S.7, should not only see that there is strict compliance with provisions of Act and Rules but also that there is sufficient material to show disobedience of party whip. (Para 23)

JUDGMENT

JUDGMENT :- Since almost common questions of facts and law arise for consideration in these writ petitions, these petitions are disposed of by this common judgment.

2. The elections to the Municipal Council, Kandhar were held on 19-1-2003 and the petitioners got elected as Councillors on Indian National Congress (I) Party ticket. The petitioner in Writ Petition No.7400/2004 was however, co-opted as a Councillor. The petitioner in Writ Petition No.7400/2004 did not belong to any political party and his co-option was not because he was a member of Indian National Congress (I) party. The elections to the Subject Committee of the Municipal Council were held on 8-9-2003. The notice of the meeting was received by all the four petitioners. It is the case of the petitioners that the father of the respondent No.1 was the President of the Municipal Council, Kandhar for a period of about 20 to 25 years, but for a couple of years, he was not able to get elected as the President of the Municipal Council as the office of the President was reserved for a scheduled Caste category candidate. According to the petitioners, the father of the respondent No.1 was trying to control the Municipal Council, Kandhar through his son i-e. this respondent No.1 and, was interfering with the affairs of the Municipal Council, Kandhar though he was not a Councillor. The father of the respondent No.1 was however, the Taluka President of the Indian National Congress (I) Party. It is not disputed that the petitioner in Writ Petition No.7403/2004, Abdul Mannan s/o. Mohd. Sarwar was the Leader of the House in the Municipal Council, Kandhar and also was party President for Kandhar city. Abdul Mannan was also the Vice-President of the Municipal Council, Kandhar.

3. The petitioner in Writ Petition No.7391/2004 was elected as a Member of the Water Supply and Sanitation Committee in the election of the Subject Committee on 8-9-2003. The petitioner in Writ Petition 7391/2004 was thereafter elected as a Chairman of the Water Supply and Sanitation Committee. Abdul Mannan who was the leader of the House had not contested the election to the Subject Committee held on 8-9-2003. The petitioner in Writ Petition No.7400/2004 had contested the election to the Planning Committee and got elected as the member of the Planning Committee. Lastly, the petitioner in Writ Petition No.7404/2004 was nominated as a official candidate of the party by the Leader of the House i.e. Abdul Mannan.

4. After the elections to the Subject Committee were concluded, the respondent No.1 filed disqualification petitions against all the four petitioners on 7-10-2003 seeking a declaration that the petitioners had incurred disqualification under the provisions of Section 3(i)(b) of the Maharashtra Local Authority Members' Disqualification Act, 1986. The petitioners had filed their written statement before the Collector, Nanded and had denied the claim of the respondent No.1 After hearing the parties and after perusing the record, the Collector, Nanded by the impugned order D/-6-12-2004 allowed the petitions filed by the respondent No.1 and disqualified the petitioners under the provisions of Section 3(l)(b) of the Maharashtra Local Authority Members' Disqualification Act, 1986. The orders passed by the Collector, Nanded on 6-11-2004 are challenged by the petitioners in these petitions.

5. It was submitted by the respondent No.1 in the disqualification petition filed against the petitioner, Sandeep Kamble in Writ Petition No.7394/2004 that the petitioner had disobeyed the party whip and had voted against the party candidate. It was further submitted that Sandeep Kamble had proposed and nominated a candidate who did not belong to the Congress (I) party and thus, clearly indicated that he had disobeyed the whip. It is stated by the respondent No.1 in the disqualification petitions filed against all the four petitioners that the Taluka Congress (I) President had issued a whip to all the petitioners and other Councillors of Congress (I) Party but the petitioners in these four petitions had declined to accept the whip. Since the petitioners declined to accept the whip, the Taluka Congress (I) President, who is also the father of the respondent No.1, affixed the said whip on the doors of the residence of the petitioners and thereafter effected a panchanama. The petitioner in Writ Petition No.7391/2004, namely Sandeep Kamble, filed a written statement and submitted that Abdul Mannan was the President of the Indian National Congress (I) Party for Kandhar city and the name of Abdul Mannan had been informed in form No.1, in accordance with Rule 3(1)(A) of the Maharashtra Local Authority Members' Disqualification Rules 1987, as a Leader of the Indian National Congress Party. It was stated in the written statement that the respondent No.1 had no locus standi to file the disqualification petition. Certain allegations were also levelled against the respondent No.1 as well as his father, who was the Taluka Party President and who, according to the petitioner, had no authority to issue any whip. The petitioner then denied that he had received the whip or that a panchanama was effected on 7-9-2003. The petitioner in Writ Petition No.7391/2004 clearly stated in the written statement that he did not act against the directions of the party and, therefore, he cannot be said to have been disqualified as claimed by the respondent No.1. It was further stated in the written statement that he had filed the nomination for the post of Chairman of the Water Supply Committee as per the directions of the party and was duly elected. It was categorically stated that Abdul Mannan, the Leader of the House and the party, had rightly proposed his name for the aforesaid candidature.

6. In Writ Petition No.7404/2004, it was the case of the respondent No.1 in the disqualification petition that the petitioner Sk. Hamid had also refused to accept the whip and, therefore, the whip was affixed on the door of the residence of Sk. Hamid and a panchanama was accordingly drawn. It was further stated in the disqualification petition that while entering the meeting hall, Sk. Hamid was duly informed about the party whip but he acted against the policy and resolution of the Congress (I) Party. It was further stated in the disqualification petition that Sk. Hamid had voted against the party candidate which clearly indicated that despite knowledge about the whip, Sk. Hamid was trampling the directions issued by the party. It was then stated in the disqualification petition that Sk. Hamid had filed his nomination for the post of Chairman, Education and Health Committee with the help of Abdul Mannan and thereby had acted against the party whip.

7. Similarly, in Writ Petition No.7403/2004, it was the case of the respondent No.1 in the disqualification petition that Abdul Mannan had incurred disqualification under the provisions of Section 3(l)(b) of the Act of 1986, as he had acted contrary to the whip issued by the party President. It was further stated in the disqualification petition that Abdul Mannan was a proposer to a candidate of the opposite party i.e. Bharatiya Janta Party. It was then pleaded that Abdul Mannan acted against the directions of the Party High Command and, further chose to be continued as the ex-officio Chairman of the Planning Committee. A written statement was also filed by Abdul Mannan, denying all the statements made on behalf of respondent No.1. It was categorically stated in the written statement by Abdul Mannan that he had not disobeyed the party whip and had therefore not acted against the policies of the party. It was further stated that he did not vote against the party candidate and also did not act against the directions of the party President and the directions issued by the High Command. It was further pleaded that he was the Vice-President of the Municipal Council, Kandhar and the post of the Chairman of the Planning Committee was ex-officio post of Vice-President of Municipal Council, Kandhar.

8. Lastly, in Writ Petition No.7400/2004, in the disqualification petition filed by the respondent No.1 before the Collector, Nanded, the same pleas about the non-acceptance of the whip by Syed Salim and the drawing of the panchanama were made. It was stated in the disqualification petition by the respondent No.1 that Syed Salim joined hands with the members of the opposite party and also filed his nomination form for the Subject Committee membership against the party candidate with the help of a Councillor of the opposite party. It was then stated that Syed Salim voted against the party candidate and disobeyed the party whip and, therefore, had incurred disqualification under Section 3(l)(a)(b) of the Act of 1986. In the written statement filed by Sy. Salim, it was stated by Syed Salim that no notice or any whip was ever served upon him and a whip issued by the Congress (I) Party was also not binding on him because he was not elected as a Councillor on Congress (I) ticket but was co-opted member of the Municipal Council. It was further submitted that a co-opted member had no right to cast his vote in the elections to the Subject Committee and, therefore, he had not cast his vote in favour of any of the candidates contesting the elections to the Subject Committee. It was further submitted by Syed Salim that since he had not voted in favour of any of the candidates, there was no question of incurring any disqualification under Section 3(l)(a)(b) of the Act.

9. Shri. Talekar, the learned counsel appearing on behalf of the petitioners has challenged the orders passed by the Collector, Nanded on 6-12-2004, on several grounds. According to the counsel for the petitioners, the Taluka Congress President had no authority to issue the whip D/-7-9-2004 and, in fact, the Leader of the House i.e. Abdul Mannan had the authority to issue the whip. It was further submitted on behalf of the petitioners that the whip was actually not served on any of the petitioners and, the petitioners were also not aware of the whip. It was further submitted that though the whip was not actually served, a forged panchanama was shown to have been drawn and a show was made to depict that the whip was actually served on all other members of the Congress (I) Party by securing their signatures on the document after the elections to the Subject Committee were concluded. It has then canvassed on behalf of the petitioners that none of the petitioners had voted against the Congress (I) candidates and, in view of the aforesaid fact, the petitioners could not have incurred disqualification under the provisions of Section 3(l)(b) of the Act of 1986.

10. The counsel for the petitioners submitted that even assuming that the whip was issued and the whip was actually served on the petitioners, a bare perusal of the whip issued by the Taluka President does not disclose the name of any of the nominated candidates in whose favour the petitioners or the other Congress (I) members were directed to cast their vote. According to the counsel for the petitioner, the so called whip issued by the Taluka Congress (I) President, who is the father of the respondent No.1, only directs that the members should remain present in the Municipal Council, Kandhar on 8-9-2003 and should obey the party directions by casting their vote in favour of a candidate who has been selected by the party Leader and, all the petitioners had cast their vote in favour of the candidates who were duly nominated by Abdul Mannan who was the Leader of the House. Thus, by taking this Court through the pleadings and submissions in the disqualification petition and the written statement filed by the petitioners, it was pointed out that there was nothing on record to show that the petitioners were directed to vote for a specified or particular candidate and that they had failed to vote for the same. It was further submitted on behalf of the petitioners that the impugned orders passed by the Collector, Nanded on 6-12-2004 were clearly illegal and were not supported by evidence on record and were therefore, liable to be set aside.

11. Shri. Deshpande, the learned counsel appearing on behalf of the respondent No.1, the original complainant, supported the orders passed by the Collector, Nanded and submitted that a clear finding of fact has been recorded by the Collector against all the petitioners by holding that petitioners had disobeyed the party whip and were liable for disqualification under the provisions of Section 3(l)(b) of the Act of 1987. According to the counsel for respondent No.1, the findings of fact recorded by the Collector, Nanded were based on evidence and therefore, the impugned orders were not liable to be set aside in exercise of the jurisdiction under Art.227 of the Constitution of India as the scope for interference under the aforesaid provisions was extremely limited. It was further pleaded on behalf of the respondent No.1 that the whip dt. 7-9-2003 was served on the petitioners by affixing a copy of the whip on the doors of the residence of the petitioners and, in pursuance of the whip, it was necessary for the petitioners to have voted in favour of the candidate who was selected by the party Leader, but the petitioners had disobeyed the whip by voting against the Congress (I) candidates. The counsel for the respondent No.1 submitted that the Taluka Congress President was duly authorised by District Congress President to issue whip and, therefore, it could not be said that the Taluka Congress President had no authority to issue the whip. It was submitted on behalf of the respondent No.1 that in any case, these petitions were not maintainable in view of the alternative remedy which was available to the petitioners under the provisions of Section 44(4) of the Maharashtra Municipal Councils (Nagar Parishad and Panchayat Samitis) Act.

12. Shri. Dighe and Mrs. Mane, the learned Assistant Government Pleaders appearing on behalf of the State Government and the Collector supported the impugned orders passed by the Collector, Nanded on 6-12-2004. According to the learned Assistant Government Pleaders, the Collector, Nanded had categorically recorded a finding that the petitioners had disobeyed the whip dt. 7-9-2004 and, therefore, had incurred disqualification under the provisions of section 3(l)(b) of the Act of 1986. It was submitted on behalf of the Government that the orders passed by the Collector, Nanded need not be interfered with.

13. Mr. S. B. Pulkundwar, the learned counsel appearing on behalf of the respondent No.2, Municipal Council, Kandhar, stated that the respondent No.2 is a formal party and is not desirous of either supporting the petitioners or the respondent No.1 and, has absolutely no role to play in the instant petitions.

14. The objections raised on behalf of the respondents to the maintainability of the petition on the ground of alternative remedy cannot be sustained as in fact, the petitioners have no alternate remedy under the provisions of Section 44(4) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act. In fact, under the provisions of Section 7 of the Maharashtra Local Authority Members' Disqualification Act, 1986, the question as to whether the Councillor would be subjected to disqualification under the Act shall be referred to the Collector in case, the Councillor is a member of the Municipal Council and, the decision of the Collector would be final. Finality is attached to the decision of the Collector under the provisions of Section 7 of the Disqualification Act of 1986 and the impugned orders passed by the Collector on 6-12-2003 are not appealable before the State Government under the provisions of Section 44(4) of the Act of 1986. Thus, it cannot be said that the petitioners had an alternate and efficacious remedy for challenging the impugned orders. And again, the rule of alternative remedy is only a consideration for exercise of discretion and does not exclude the jurisdiction of the High Court in exceptional cases.

15. This Court had directed the learned Assistant Government Pleaders to produce the original record of the cases from Collector, Nanded. The original record of the proceeding was therefore produced by the learned Assistant Government Pleaders before this Court. On perusal of the record, it is clear that the election to the Subject Committee of the Municipal Council was to be held on 8-9-2003. It is not in dispute that Abdul Mannan, the petitioner in Writ Petition No.7403/2004 was the party President of Kandhar City and was also the Leader of the House of the Kandhar Municipal Council. It is further not in dispute that the name of petitioner Abdul Mannan was informed in form A in accordance with the provisions of Rule 3(l)(a) of the Rules of 1987. Thus, Abdul Mannan was no doubt a Leader of the House and a Leader of the Congress (I) Party for Kandhar city. It is further not disputed that the respondent No.1 is the son of the Taluka Party President who had allegedly issued the whip on 7-9-2003. It is the case of the respondent No.1 that the whip was personally served on all other members of the Congress (I) Party except the four petitioners who declined to accept it. It is further the case of the respondent No.1 that since the petitioners declined to accept the whip, on 7-9-2003, at about 3.30 p.m., the whip was affixed on the doors of the residence of the petitioners and a panchanama in that regard, was drawn. The petitioners have however, denied the aforesaid fact.

16. Two members of the Congress (I) party on whom the whip had been allegedly served have filed affidavits before the Collector to show that the whip was not actually served on them on 7-9-2003, but they were asked to acknowledge that the whip was actually served on them on 7-9-2003. It is stated by members, Digambar Gaikwad and Manojsingh Gaur, who had filed the affidavit before the Collector, Nanded that the acknowledgment of the receipt of the whip was taken from them after the elections were concluded on 8-9-2003. The copy of the document on which the signatures of the party members have been obtained for acknowledging the receipt of the whip, clearly shows that the date of this document was earlier written as 8-9-2003 and later on changed to 7-9-2003. It was submitted on behalf of the petitioners that the aforesaid change in date fortified the facts stated by Digambar Gaikwad and Manojsingh Gaur in their affidavits about the acknowledgment of having received the whip on 8-9-2003 after the elections were concluded. The contents of the whip do not disclose that the person issuing the whip was authorised to issue the same and, this prima facie showed that there was no authorisation. Be that as it may, it is not necessary for this Court to linger on the aforesaid issue as the petitions are bound to succeed in the absence of evidence on record to show that the whip dt. 7-9-2003 was flouted by the petitioners, even if it is assumed that the petitioners had received the same.

17. All the disqualification petitions merely state that the petitioners had not voted for the party candidate or had disobeyed the directions in the whip. These petitions further state that some of the petitioners had contested the election to the membership of certain committees against the party whip. It is further stated in the disqualification petitions that some of the petitioners had proposed for the candidates who were not nominated by the Party High Command or the party Leader. Thus, general statements were made in the disqualification petition about disobeying the directions in the whip dt. 7-9-2003. In order to see as to what directions were issued by the alleged whip dt. 7-9-2003, it is necessary to quote the relevant directions. The whip reads as under :

(Vernacular matter is omitted - Ed.)

18. Thus, a bare perusal of the alleged whip dt. 7-9-2003 clearly shows that the only direction issued by this whip to the members was to remain present in the Municipal Council on 8-9-2003 and vote in favour of a candidate who has been selected by the party Leader or Superior. It is conspicuous to note that the whip dt. 7-9-2003 does not disclose the names of the candidates to whom the members were supposed to vote. The whip also does not disclose as to who was the party Leader or superior whose directions were to be obeyed. The whip does not speak either of the Party High Command or of a particular party Leader whose selected candidates were to be elected by the members. The whip merely directed that it was incumbent for the members to remain present in the Municipal Council on 8-9-2003 and vote for the candidates who were selected by the party Leader. The first part of the whip in any case is complied by the petitioners as all the four petitioners were present in the Municipal Council elections which were held on 8-9-2003. The other part of the whip, about voting for the candidates who were selected by the party Leader, it is not the case of the respondent No.1 that particular candidates were selected by the party Leader and High Command and, the petitioners had not voted for the same. It is further not clarified by either the whip or by the pleadings in the disqualification petition as to which candidates were to be voted in the election dt. 8-9-2003. In fact, the original record produced before this Court clearly shows that Abdul Mannan, the Leader of the House and the petitioner in Writ Petition No.7403/2004, had nominated the candidates. Thus, the nomination of the Congress (I) candidates were at the instance of Abdul Mannan, who could also be said to be a person who was duly authorised to nominate the party candidates. It is nobody's case that Abdul Mannan, the Leader of the House and the president of the Congress (I) Party for Kandhar City was not entitled to nominate the candidates for the Subject Committee elections held on 8-9-2003. It is not disputed that the name of Abdul Mannan was already notified in form A in accordance with the Rule 3(l)(a) of the Rules of 1987. There was absolutely nothing before the Collector to hold that the petitioners were directed to vote for a particular candidate or some other Congress (I) candidates were nominated by the party Leader or the petitioners had voted for candidates who did not belong to the Congress (I) Party. In fact, some of the petitioners were elected as members on certain Committees on the nomination of Abdul Mannan who was undoubtedly the Leader of the House and also the President of the Congress (I) Party for Kandhar city.

19. In view of the vague pleadings in the disqualification petition, and the scanty record there was nothing before the Collector, Nanded to hold that the petitioners had flouted the directions issued by the whip dt. 7-9-2003, even if it is assumed that the whip was actually served on the petitioners on 7-9-2003. When a party issues a whip, it is expected that the directions in the whip should be specific. A general direction was given in the alleged whip dt. 7-9-2003 about remaining present in the Municipal Council, Kandhar on 8-9-2003 and voting for the candidates who were selected by the party Leader. There is nothing in the whip to show that particular members were to be voted or that either the High Command or the party Leader had proposed the names of particular or specific candidates. Even assuming that the whip gave the general directions and information about the specific candidate was to supplied later, the record scanned by this Court does not show that the petitioners had been so informed and they either voted for a candidate who did not belong to the Congress (I) Party or who was not nominated or proposed by the party Leader. The observation made by the Collector in the impugned orders, to the effect that the record shows that the petitioners have violated the whip is clearly illegal as the entire record does not bear an iota of evidence to show that the petitioners had flouted the party directions or had disobeyed the directions in the whip dt. 7-9-2003. Though it is alleged in the disqualification petitions that some of the petitioners contested for the membership on certain Subject committees. There is nothing on record to show that the petitioners could not have contested the election to the membership of the Subject Committee or that their names were not proposed by the Party Leader or that they were not the nominated candidates of the Congress (I) party.

20. The finding recorded by the Collector in the case of Syed Salim that he had incurred disqualification as he had not voted for any of the candidates in the meeting dt. 8-9-2003 and this was in clear violation of the whip, is not only erroneous but is perverse.

21. The Collector, Nanded was also not justified in holding that Syed Salim had proposed the name of Jafarullah Khan for the membership of Water Supply and Sanitation Committee against the directions of the party, specially when there were no pleadings in the disqualification petition to the aforesaid effect. Further, the finding of the Collector, Nanded that Abdul Mannan had not issued the whip at the Subject Committee election though he was duty bound to issue the whip and this clearly showed that he had acted against the party directions, is also contrary to the record and is not supported by the pleadings of respondent No.1. The original record does not disclose that Abdul Mannan had proposed the names of Councillors who did not belong to his party and proposed the names of the Councillors who were not selected by the party High Command or the Party Leader.

22. The record reveals that the District Congress (I) President had communicated to the Collector, Nanded that the party was not desirous of prosecuting the matter against the present petitioners and the authority given to the respondent No.1 to institute the proceedings against the petitioners was also withdrawn. However, the respondent No.1 did not withdraw the petition and prosecuted the proceedings. This strengthens the submissions made on behalf of the petitioners that the whip was allegedly issued by the father of the respondent No.1 who was the President of Taluka Congress (I) Party and since he was the President of the Municipal Council for 20 to 25 years he was trying to rule the same and had consequently filed the disqualification petitions.

23. The declaration of disqualification of a councillor entails serious penal consequences and has the effect of unseating a person from an office to which he is elected by democratic process. Hence, while dealing with a reference under Section 7 of the Maharashtra Local Authority Members' Disqualification Act, a Collector or Commissioner, as the case may be should not only see that there is strict compliance with the provisions of the Act and the Rules but also that there is enough material to hold that the Councillor or member has voted or abstained from voting in a meeting of the Municipal Corporation or Council contrary to the direction issued by the political party. The orders passed by the Collector, Nanded on 6-12-2003 cannot be sustained specially, when no evidence was produced on record by the respondent No.1. to prove the pleadings and, there was nothing on record to demonstrate that certain candidates were nominated and proposed by the Party High Command or the Party Leader and the petitioners had voted against the direction of the political party.

24. For the aforesaid reasons the petitions are allowed. The impugned orders passed by the Collector, Nanded, on 6-12-2004 are hereby quashed and set aside. Rule is made absolute in terms of prayer clause A. In the facts of the case, there would be no order as to costs.

25. Authenticated copy of operative order be supplied to the parties.

Petitions allowed.