2007(6) ALL MR 670
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
A.H. JOSHI AND R.C. CHAVAN, JJ.
Deepak Shankarlal Jaiswal & Anr.Vs.State Of Maharashtra & Ors.
Writ Petition No.81 of 2007
20th August, 2007
Petitioner Counsel: Shri P. C. MADKHOLKAR
Respondent Counsel: Mrs. BHARTI DANGRE,Shri. A. S. KILOR,Shri. R. K. DESHPANDE
(A) Maharashtra Local Authority Members' Disqualification Act (1986) - Disqualification - Ground of - Defiance of whip - Validity - No notice given to respondents - Plea that since Collector through his nominee was chairing the meeting and was aware that respondents defied the whip, notice was not necessary - Held, automatic disqualification cannot result thereby - Procedure as prescribed in rules has to be followed. (Paras 11, 12, 13, 14)
(B) Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act (1965) (And by Act 36 of 2006), Ss.51, 51(A)(2) - Maharashtra Municipal Councils (Conduct of Election of President and Vice-President) Rules - Election of President & Vice-President - Plea of petitioner that only election of President was to be conducted by Collector and meeting for electing Vice-President was to be chaired by President - Procedure of election provides for elections immediately at same meeting, notice whereof is required to be given 3 days prior to date of meeting - No illegality or irregularity in conduct of elections. (Paras 9, 10, 11)
2. Heard learned Advocate Shri. P. C. Madkholkar for the petitioners, learned Additional Government Pleader Mrs. Bharati Dangre, for respondents No.1 to 3, learned Advocate Shri. A. S. Kilor for respondents No.4, 5 and 6 and learned Advocate Shri. R. K. Deshpande for respondents No.7 and 8.
3. The petitioners, Municipal Councilors of Municipal Council, Chandrapur had contested election for the post of President and Vice-President respectively, were defeated at the election meeting dated 18.12.2006 convened by the Collector and chaired by the Collector's nominee. The petitioners assailed election on the ground that they had contested election as nominees of Shivsena-B.J.P. alliance. Shivsena had issued whip directing its councilors to vote for the petitioners. Respondents No.4, 5 and 6 had been elected to the Municipal Council as candidates belonging to Shiv Sena. They, however, defied the whip and also are disqualified to continue as municipal councilors in terms of the Maharashtra Local Authority Members' Disqualification Act, 1986. According to the petitioners, since the Collector through his nominee was chairing the meeting, and was aware that respondents No.4 to 6 had defied the whip, there was no further necessity of issuing any notice to respondents No.4 to 6, or giving them hearing in the matter of disqualification. After waiting for fifteen days to ascertain whether defiance of respondents No.4 to 6 was condoned, on 16.01.2007 the Collector was obliged to disqualify the respondents in view of the provisions of Maharashtra Local Authority Members' Disqualification Act, 1986.
4. It was further contended that the election meeting itself was held in breach of the provisions of the Maharashtra Municipal Councils (Conduct of Election of President & Vice-President) Rules. It was stated that under the rules only election of the President was to be conducted by the Collector and meeting for electing the Vice-President was to be chaired by the President. Therefore, election of the President and Vice-President at a composite meeting was vitiated as contrary to the provisions of the Rules. The petitioners, therefore, assailed the election of respondents No.7 and 8 as President and Vice-President respectively.
5. In the affidavit in reply filed on behalf of respondents No.4 to 6 the respondents No.4 to 6 disputed that any whip was received by them, directing them to vote for the petitioners. They stated that the petitioners belong to Nationalists Congress Party (NCP) and B.J.P. respectively and that there was no collation between Shiv Sena to which respondents No.4 to 6 belong, and NCP. Therefore, they state that they have not defied any whip and are not liable to be disqualified.
6. In affidavit in reply, filed on behalf of the respondents No.7 and 8, it is stated that there was no evidence to show that there was alliance between Shiv Sena and B.J.P. and that candidates of Shiv Sena and B.J.P. had contested separately. In view of this, there was no question of respondents No.4 to 6 being obliged to vote for a candidate belonging to another party. These respondents also denied that any whip was issued directing respondents No.4 to 6 to vote for petitioners. They denied that there was any violation of rules regarding conduct of elections and therefore, prayed for dismissal of the petition.
7. On behalf of respondents No.2 and 3 it has been stated in the affidavit in reply that the provisions of the Maharashtra (Municipal Councils), (Nagar Panchayats and Industrial Townships) Act, 1965 have been amended by amending Act No.36 of 2006, which received the assent of the Governor on 13.06.2006, whereby Section 51 and 51-A were amended. Under the new dispensation election of President and Vice-President both was to be conducted simultaneously by the Collector and accordingly the election was conducted at a meeting presided over by Sub-Divisional Officer, a nominee of the Collector, Chandrapur.
8. As to the disqualification of respondents No.4 to 6 for defiance to any whip it was pointed out by respondents No.2 and 3 that one Vinod Duryodhan President of Shiv Sena has submitted a letter to the Presiding Officer which indicated that the Shiv Sena supported NCP in the election for the post of President of the Municipal Council. However, the letter did not contain any communication to respondents No.4 to 6 to vote for petitioners. It is also further stated in the affidavit in reply on behalf of respondents No.2 and 3 that a xerox copy of letter written by Shri. Subhash Desai, General Secretary of Shiv Sena, addressed to the Collector was received by the Collector on 18th December, 2006. However, its original was not submitted and the letter was not addressed to the Presiding Officer of the meeting. All this has been duly recorded in the proceedings. The elections were held and the candidates who secured majority of votes were declared as elected. On 22.12.2006 one Deelip Kapoor, who claimed to be the President of Shiv Sena District Unit at Chandrapur, had written to the Collector for initiating action for disqualifying respondents No.4 to 6. However, since the authority of said Shri. Deelip Kapoor, was itself not clear, there was no question of the Collector acting upon the letter of Shri. Deelip Kapoor to disqualify respondents No.4 to 6. According to respondents No.2 and 3 the communication of Shri. Vinod Duryodhan, incharge of Shiv Sena Party at Chandrapur had not been shown to have been breached by respondents 4 to 6. Therefore, there is no question of any defection committed by respondents No.4 to 6. The respondents, therefore, sought dismissal of the petition.
9. First we would take up the question of legality of the procedure followed for election of respondents No.7 and 8. Sections 51 and 51-A of the Maharashtra (Municipal Councils), (Nagar Panchayats and Industrial Townships) Act, 1965 were amended by Act No.36 of 2006 which received Governor's assent on 13.06.2006. Sub-section (2) of Section 51-A after amendment reads as under:
"The meeting to elect the Vice-President shall be presided over by the Collector or such officer as the Collector may nominate specially in this behalf, but the Collector or such other officer shall have no right to vote."
In view of this, objection that the meeting to elect the Vice-President should have been presided over by the President has to be rejected.
Sub-Section (1) of the said Section has also been amended to read as under :
"(1) Every Council shall have a Vice-President, who shall be elected by the elected Councillors from amongst themselves in the special meeting convened under sub-section (2) of section 51."
10. The special meeting convened under Sub-Section (2) of Section 51 refers to the Special Meeting convened by the Collector to elect President. It is, thus, clear that both President and Vice President have to be elected at the same meeting which is convened by the Collector.
11. The procedure of election is laid down in the Maharashtra (Municipal Councils) (Conduct of Elections of President and Vice-President's) Rules, 1967. These rules are also amended in the year 2005 by notification dated 8th December, 2006. Though there is some conflict, inasmuch as the words "special meeting" have been substituted by "first general meeting" in the rules whereas Section 51 and 51-A of the Act refer to special meeting, it is not significant since the amended rules provide for elections immediately at the same meeting, notice whereof is required to be given three days prior to the date of meeting. The rules, as amended by notification dated 2nd March, 2005, already provide for election by show of hands instead of secret ballot. In view of this, it cannot be said that there was any irregularity or illegality in conduct of election for the offices of President and Vice-President of the Chandrapur Municipal Council.
12. This takes us to the question of disqualification. The learned Advocate for the petitioners submitted that defence of respondents No.4 to 6 that they were not aware of the whip has to be rejected, in view of the decision of this Court in Shilpa Vs. Ratnagiri Nagar Parishad, reported at 1999(1) Mh.L.J. 525 : [1999(1) ALL MR 286]. In that case whip which was sought to be served upon the petitioner was not accepted by her. After an inquiry by the Collector under Section 7 of the Maharashtra Local Authority Members' Disqualification Act the Collector held that the petitioner had incurred disqualification. This Court had refused to interfere with the findings of the Collector. In that case there was an affidavit of the leader of the party in support of the allegations that the petitioner had refused to receive whip and therefore, the necessary knowledge had been attributed to the petitioner. To incur disqualification, it would have to be found out, as a fact, in this case by the competent authority as to whether respondents No.4 to 6 can be attributed knowledge of the direction of the party that they should vote in a particular fashion.
13. On behalf of respondents No.4 to 6 reliance was placed on decision of the Supreme Court in Sadashiv H. Patil Vs. Vitthal D. Teke, reported at AIR 2000 SC 3044 : [2001(1) ALL MR 282 (S.C.)]. In that case it was held that in order to incur disqualification under the Act there must be direction issued which has been defied and that such direction must be by a person or authority authorised in this behalf. The learned Advocate submitted that in the absence of any material to show that any particular (person) who was office bearer or holding on post of the party was authorised by the party had issued any direction a whip to the respondents No.4 to 6 to vote in a particular fashion it would be impermissible to infer when they had defied any such direction.
14. The question as to whether a member has incurred disqualification has to be decided by the Collector in view of the provisions of Section 7 of the Act. The contention of the learned Advocate for the petitioner that this disqualification would be automatic, since respondents No.4 to 6 had defied the whip in presence of Collector's nominee, has to be rejected, because under Rule 6 of the Maharashtra Local Authority Members' Disqualification Rules such a question has to be referred by a petition in writing to the Collector, and under Rule 7, upon receipt of such a petition, the Collector has to forward copies of the petition to the councillor concerned who has to forward his comments to the Collector. After following elaborate procedure prescribed under Rule 7, the Collector would decide the petition under Rule 8. Since this procedure had not been followed there is no question of this Court issuing writ declaring respondents No.4 to 6 to have been disqualified from continuing as councillors of Municipal Council, Chandrapur.