2010(6) ALL MR 687
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
S.A. BOBDE AND V.A. NAIK, JJ.
Nitin S/O. Dayanand Kadav Vs. Rajesh S/O. Pandhari Bante & Ors.
Writ Petition No.2703 of 2009
11th January, 2010
Petitioner Counsel: Mr. A. R. SHARMA
Respondent Counsel: Mrs. S. S. WANDILE
Maharashtra Local Authority Members' Disqualification Act (1986), S.7(ii) - Disqualification of a Councillor of Zilla Parishad - Petition filed before the Collector - Refusal to entertain the petition - Jurisdiction lies with Collector in view of provisions of Section 7, Clause (ii) - Collector directed to decide the matter. (Para 6)
2. The petitioner has challenged the order of the Collector, Bhandara dated 5-6-2009 refusing to consider the case of disqualification of the respondent No.1 as a Councillor of the Zilla Parishad, Bhandara.
3. The petitioner filed a petition before the Collector on 5-6-2009 alleging that the respondent No.1 has acquired a disqualification for continuing as a Councillor of the Zilla Parishad, Bhandara under Section 3(1)(a) of the Maharashtra Local Authority Members Disqualification Act, 1986 (hereinafter referred to as the "Act") which reads as follows:-
"Section 3(1)(a) - If he has voluntarily given up his membership of such political party or aghadi or front."
4. According to the petitioner, the respondent No.1 was disqualified as he got elected on the Bhartiya Janata Party and has later on voluntarily given up his membership of that party. The petition for disqualification was moved before the Collector, Bhandara, who has refused to entertain the petition by passing the following order:-
"On carefully going through the provision of Z.P. and P.S. Act read with disqualification Act 1986, it is found that in such case jurisdiction lies with Div. Commissioner."
5. Mr. Sharma, the learned Advocate for the petitioner submitted that the Collector alone has jurisdiction to decide the case of disqualification of a Member of Zilla Parishad under the Act. The learned Advocate relied on Section 7 of the Act, which reads as follows :-
"Section 7 - If any question arises as to whether, -
(a) a councillor of a Municipal Corporation; or
(b) a councillor of a Municipal Council; or
(c) a councillor of a Zilla Parishad; or
(d) a member of a Panchayat Samiti,
has become subject to disqualification under this Act, the question shall be referred -
(i) in the case of a councillor of a Municipal Corporation, to the Commissioner, and
(ii) in the case of any other councillor or member, to the Collector;
and the decision of the Commissioner, or as the case may be, Collector shall be final."
6. On plain reading of Section 7, it is clear that the contention on behalf of the petitioner deserves to be accepted. The Act confers the jurisdiction on the Commissioner in the case of a Councillor of Municipal Corporation, who is alleged to have acquired a disqualification under the aforesaid provision. In the case of a Councillor before the Municipal Corporation who has acquired disqualification must be referred to the Commissioner, however, vide Clause (ii) "of other cases" i.e. cases involving disqualification of any other Councillor or Member must be referred to the Collector. It is clear that the present case falls under Clause (ii) and therefore, can be decided by the Collector alone. In this view of the matter, we set aside the order of the Collector and direct the Collector, Bhandara to decide the petition dated 5-6-2009 filed by the petitioner alleging that the respondent No.1 has become disqualified under the Act as expeditiously as possible, not later than two months from the date of parties appear before him.
The parties are directed to appear before the Collector, Bhandara on 18th January, 2010.
Rule made absolute in above terms.
Steno copy of this judgment be supplied to the parties, as per rules.