2012(5) ALL MR 28
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)

R.K. DESHPANDE, J.

Fazalur Rehman Gulam Nabi Vs. Smt. Raziya Begam Sayyed Natiquiddin Khatib & Ors.

Writ Petition No.1110 of 2012

4th May, 2012

Petitioner Counsel: Shri P.C. MADKHOLKAR
Respondent Counsel: Shri S.V. SOHONI, Shri B.N. MOHTA, Shri K.L. DHARMADHIKARI
Other Counsel: Shri B.N. MOHTA

(A) Maharashtra Local Authority Members' Disqualification Rules (1987), R.7(1) - Procedure - Compliance with, is mandatory.

Sub-rule (1) of Rule 7 states that on receipt of a petition under Rule 6, the Collector shall consider whether the petition complies with the requirements of Rule 6. It uses the word 'shall' so as to indicate the mandatory nature of duty cast upon the Collector. The object of introducing of sub-rule (1) of Rule 7 is to find out whether the copies of the petition and of annextures thereto are required to be forwarded to the Councillor in respect of whom the petition is made. It requires the Collector to conclude the process of adjudication to some extent and to crystallize the controversy as a part of decision-making process. In the process of adjudication, the Collector has to find out as to what are the actual defects and deficiencies in complying with the requirements of Rule 6 of the said Rules. If the defects or deficiencies found are only of a formal or technical nature, then the Collector may issue appropriate directions to the petitioner to cure or rectify such defects or deficiencies so that the other side is also given an opportunity to meet the case and the enquiry is not frustrated or obstructed by introduction of technicalities. While issuing such directions, the Collector may stipulate the time-limit within which such defects or deficiencies are to be cured or rectified and the consequence of failure to cure or rectify the defects or deficiencies within stipulated time. The provision of sub-rule (i) of Rule 7 is, therefore, mandatory. [Para 10]

(B) Maharashtra Local Authority Members' Disqualification Rules (1987), R.7(1) - Compliance with procedure - Collector not applying his mind to find out whether there are defects and deficiencies, whether they are formal or technical in nature and whether for non-compliance petition is required to be dismissed or not - Matter remanded to collector to decide it afresh in accordance with law. (Para 19)

Cases Cited:
Adesh s/o Shankarrao Bobde Vs. Aniruddha @ Bablu s/o Subhanrao Deshmukh and others, Writ Petition No.713 of 2012, Dt.6/3/2012 [Para 11]
Chandrakant s/o Gajananrao Pise & Ors. Vs. The Collector, having its office at Civil Lines & Ors., 2010(2) ALL MR 315 [Para 12]
Jitendra Himmat Biraris Vs. Kiran s/o Gulabrao Patil and another, 2010(4) ALL MR 732 =2010(6) Mh.L.J. 208 [Para 12]
Kedar Shashikant Deshpande Vs. Bhor Municipal Council & Ors., 2011(1) ALL MR 934 (S.C.)=AIR 2011 SC 463 [Para 12,13]
Balaji Ganeshrao Bacchewar Vs. Laxman Ganeshrao Tahkkarwar and others, 2011(5) ALL MR 270=2011(6) Mh.L.J. 60 [Para 12]
Tukaram Ganpat Kale and another Vs. Ankush Kondiba Jadhav and others, 2011(6) Mh.L.J. 243 [Para 12]
Jitendra Himmat Biraris Vs. Kiran & Anr., Special Leave to Appeal (Civil) No.26984 of 2010, Dt.24/5/2011 [Para 12]


JUDGMENT

JUDGMENT :- Leave to amend the prayer clause is granted. Necessary amendment be carried out forthwith.

2. Rule, made returnable forthwith. Heard finally by consent of the learned counsels appearing for the parties.

3. The respondent No.1 Fazlur Rahman Gulam Nabi has filed the petition before the Collector under Rule 6 of the Maharashtra Local Authority Members' Disqualification Rules, 1987 (for short, "the said Rules") for disqualification of the petitioner as a Municipal Councillor under clause (a) of sub-section (1) of Section 3 of the Maharashtra Local Authority Members' Disqualification Act, 1986 (for short, "the said Act"). The petitioner, on receipt of the notice of the petition, filed an application under sub-rule (2) of Rule 7 of the said Rules for dismissal of the petition for non-compliance of Rule 6 of the said Rules. The Collector has dismissed the said application and hence this petition.

4. The Collector has recorded the finding in his order that the petition contains the statements of material facts running into more than 20 pages. The finding is also recorded that the respondent No.1 has also verified the documents attached to the petition, that the petition is verified and signed by the respondent No.1, that there is a pleading that the respondent No.1 is a Councillor of the Municipal Council, and she has a locus to file the petition. The further finding is recorded that there are reasonable grounds for believing that a question of disqualification of the petitioner has arisen and that there is a substantial compliance with Rule 6 of the said Rules. The finding is also recorded that the rest of the objections raised pertain to the merits of the matter. Hence, the application for dismissal of the petition has been rejected.

5. The questions involved are (i) whether the provision of sub-rule (1) of Rule 7 of the said Rules confers a statutory duty upon the Collector to see whether there is a compliance of Rule 6 of the said Rules, and (ii) If it is so, then how and in what manner such compliance is required to be seen by the Collector.

6. Rule 6 of the said Rules being relevant, is reproduced below :

"6. References to be by petitions.-- (1) No reference of any question as to whether a councillor in relation to a municipal party and a Zilla Parishad party or member in relation to a panchayat Samiti party has become subject to disqualification under the Act shall be made except by a petition in writing to the Commissioner in the case of a councillor of a Municipal Corporation and the Collector in the case of any other councillor or member, by any other councillor or, as the case may be, member, in relation to such councillor or, as the case may be, member.

(2) Before making any petition in respect of a councillor in relation to a municipal party and a Zilla Parishad party or a member in relation to a Panchayat Samiti party, the petitioner shall satisfy himself that there are reasonable grounds for believing that a question has arisen as to whether such councillor or, as the case may be, member has become subject to disqualification under the Act.

(3) Every petition--

(a) shall contain a concise statement of the material facts on which the petitioner relies; and

(b) shall be accompanied by copies of the documentary evidence, if any, on which the petitioner relies and where the petitioner relies on any information furnished to him by any person, a statement containing the names and addresses of such persons and the gist of such information as furnished by each such person.

(4) Every petition and any annexture thereto shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (V of 1908) for the verification of pleadings."

7. Rule 6 of the said Rules indicates that the Collector has to apply his mind to find out as to whether the petition has been presented by a Councillor, whether the petitioner is satisfied himself that there are reasonable grounds for believing that a question has arisen as to the disqualification of a Councillor, whether the petition contains a concise statement of material facts on which the petitioner relies, whether the petition is accompanied by the copies of the documentary evidence, if any, and whether the petition and the annextures thereto are signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for the verification of the pleadings.

8. Rule 7 of the said Rules deals with the procedure and sub-rules (1), (2) and (3) being relevant, are reproduced below :

"7. Procedure.--(1) On receipt of a petition under rule 6, the Commissioner or, as the case may be, Collector shall consider whether the petition complies with the requirements laid down in that rule.

(2) If the petition does not comply with the requirements of rule 6, the Commissioner or, as the case may be, Collector shall dismiss the petition and intimate the petitioner accordingly.

(3) If the petition complies with the requirements of rule 6, the Commissioner or, as the case may be, Collector shall forward copies of the petition and of the annextures thereto--

(a) to the councillor in relation to a municipal party and a Zilla Parishad party and member in relation to a Panchayat Samiti party, in respect of whom the petition has been made, and

(b) where such councillor in relation to a municipal party and a Zilla Parishad party or member in relation to a Panchayat Samiti party belongs to any political party or aghadi or front and such petition has not been made by the leader thereof, also to such leader; and such councillor, member o leader shall, within seven days of the receipt of such copies, or within such further period as the Commissioner or, as the case may be, Collector may for sufficient reason allow, forward his comments in writing thereon to the Commissioner or, as the case may be, Collector."

9. Sub-rule (1) of Rule 7 of the said Rules requires the Collector to consider whether the petition complies with the requirements laid down in Rule 6 of the said Rules. If the Collector is not satisfied with the compliance of Rule 6, then sub-rule (2) of Rule 7 of the said Rules requires the Collector to dismiss the petition. If the Collector finds that the petition complies with the requirements of Rule 6, then under sub-rule (3) of Rule 7 of the said Rules he has to forward the copies of the petition and annextures thereto to the Councillor in respect of whom the petition has been made.

10. Sub-rule (1) of Rule 7 of the said Rules states that on receipt of a petition under Rule 6, the Collector shall consider whether the petition complies with the requirements of Rule 6. It uses the word 'shall' so as to indicate the mandatory nature of duty cast upon the Collector. The object of introducing of sub-rule (1) of Rule 7 is to find out whether the copies of the petition and of annextures thereto are required to be forwarded to the Councillor in respect of whom the petition is made. It requires the Collector to conclude the process of adjudication to some extent and to crystallize the controversy as a part of decision-making process. In the process of adjudication, the Collector has to find out as to what are the actual defects and deficiencies in complying with the requirements of Rule 6 of the said Rules. If the defects or deficiencies found are only of a formal or technical nature, then the Collector may issue appropriate directions to the petitioner to cure or rectify such defects or deficiencies so that the other side is also given an opportunity to meet the case and the enquiry is not frustrated or obstructed by introduction of technicalities. While issuing such directions, the Collector may stipulate the time-limit within which such defects or deficiencies are to be cured or rectified and the consequence of failure to cure or rectify the defects or deficiencies within stipulated time. The provision of sub-rule (i) of Rule 7 is, therefore, mandatory. The question No.(i) is answered accordingly.

11. It is urged by the learned counsel for the petitioner that in the process of carrying out the exercise, as contemplated by sub-rule (1) of Rule 7 of the said Rules, if the Collector finds that the defects or deficiencies in the petition are of a substantial nature and cannot be permitted to be cured or rectified, then the provision of sub-rule (2) of Rule 7 mandates the dismissal of the petition at the very threshold. The reliance is placed upon the decision of the learned Single Judge of this Court delivered on 6-3-2012 in Writ Petition No.713 of 2012 (Adesh s/o Shankarrao Bobde v. Aniruddha @ Bablu s/o Subhanrao Deshmukh and others) and other connected matters.

12. Per contra, it is urged by the learned counsel for the petitioner that the provision to dismiss the petition is contained in sub-rule (2) of Rule 7 of the said Rules, which is the subordinate legislation and it cannot be permitted to act or operate to defeat or frustrate the substantive power of the Collector under Section 3 of the said Act to disqualify the Councillor. The reliance is placed upon the following decisions :

(1) Chandrakant s/o Gajananrao Pise & Ors. v. The Collector, having its office at Civil Lines & Ors. - 2010(2) ALL MR 315.

(2) Jitendra Himmat Biraris v. Kiran s/o Gulabrao Patil and another - 2010(6) Mh.L.J. 208 : [2010(4) ALL MR 732].

(3) Kedar Shashikant Deshpande v. Bhor Municipal Council & Ors. - AIR 2011 SC 463 : [2011(1) ALL MR 934 (S.C.)].

(4) Balaji Ganeshrao Bacchewar v. Laxman Ganeshrao Tahkkarwar and others - 2011(6) Mh.L.J. 60 : [2011(5) ALL MR 270].

(5) Tukaram Ganpat Kale and another v. Ankush Kondiba Jadhav and others- 2011(6) Mh.L.J. 243.

(6) The decision of the Apex Court delivered on 24-5-2011 in Petition for Special Leave to Appeal (Civil) No.26984 of 2010 (Jitendra Himmat Biraris v. Kiran & Anr.)

13. I am not required in the present petition to decide the question as to whether the provision of sub-rule (2) of Rule 7 to dismiss the petition for non-compliance of Rule 6 of the said Rules is mandatory or directory, because there is no adjudication by the Collector as to what are the defects or deficiencies in complying with the requirements of Rule 6 of the said Rules. No doubt, it is true that the Apex Court has held in its decision in the case of Kedar Shashikant Deshpande, [2011(1) ALL MR 934 (S.C.)] cited supra, that the defect in the verification is curable and the provisions of sub-rules (3) and (4) of Rule 6 of the said Rules are not mandatory but directory in nature. The reason assigned is that such defect does not affect the jurisdiction of the Collector to entertain and decide the disqualification petition. However, the question as to whether the petition can be dismissed under sub-rule (2) of Rule 7 of the said Rules if it is found by the Collector that the defect or deficiency in the petition is of a substantial so as to affect the jurisdiction of the Collector to entertain and decide the disqualification petition, needs to be gone into by the Collector. The Collector can neither avoid adjudication on compliance of Rule 6 nor can he defer the decision on it on the ground that the requirement of dismissal of the petition under sub-rule (2) of Rule 7 of the said Rules is not mandatory. The Collector is bound to carry out the exercise to attain the object of introducing sub-rule (1) of Rule 7, as stated in para 10.

14. Even if the Collector forwards the copies of the petition and annextures thereto under sub-rule (3) of Rule 7 of the said Rules in breach of the requirement of sub-rule (1) of Rule 7, that will not prevent the other side, upon receipt of the petition to file an application bringing to the notice of the Collector the defects or deficiencies in complying with the requirements of Rule 6 of the said Rules. When such application is made before the Collector, the Collector is bound to perform or discharge his statutory duty or obligation under sub-rule (1) of Rule 7 to decide whether the petition complies with the requirements of Rule 6 of the said Rules.

15. Now, coming to question No.(ii), the mode and manner in which compliance of Rule 6 is required to be seen, in order to see whether there is a compliance of sub-rules (1) and (2) of Rule 6 of the said Rules, the Collector has to go through the contents of the petition and the documents annexed thereto. The finding is required to be recorded that the petition is presented by the Councillor competent to file it and that the petitioner has reasonable grounds for believing that the question has arisen as to whether such Councillor has become subject to disqualification, as alleged. When the petition claims disqualification on the ground under clause (b) of sub-section (1) of Section 3 of the said Act, the Collector has to record the finding in terms of clause (a) of sub-rule (1) of Rule 6 of the said Rules as to what are the material facts giving rise to a cause of action to file a petition seeking disqualification under clause (a) of sub-section (1) of Section 3 of the said act. Thereafter he has to find out whether such material facts are pleaded in the petition.

16. So far as the question of non-compliance of clause (b) of sub-rule (3) of Rule 6 of the said Rules is concerned, the Collector has to record the finding as to whether the petition is accompanied by the copies of the documentary evidence, if any, on which the petitioner relies. He has also to record the finding as to the facts, which are pleaded on the basis of the information furnished to him by any person to find out whether the petition contains a statement giving the names and addresses of such person and the gist of such information, as furnished by each such person. Lastly, in order to find out the compliance of sub-rule (4) of Rule 6 of the said Rules, the Collector has to state the mode and manner in which the verification of pleadings and annextures is required to be done under the Civil Procedure Code. He has to go through the petition and the annextures furnished to record the finding as to whether the petition is signed by the petitioner and is verified in the manner laid down in the Code of Civil Procedure for the verification of the pleadings.

17. Now coming to the order impugned in this petition, the Collector has recorded the finding that the respondent No.1 in her petition has given a statement of material facts running into more than 20 pages to show that there is a compliance of clause (a) of sub-rule (3) of Rule 6 of the said Rules. The Collector has not taken any effort to find out as to what are the material facts giving rise to a claim for disqualification under clause (b) of sub-section (1) of Section 3 of the said Act and whether those facts are pleaded in the petition. The Collector has recorded the finding that there are reasonable grounds for believing that a question has arisen as to whether the said Councillor has become subject to disqualification under the said Act. However, what are the grounds raised to seek disqualification, has not at all been stated. It is not possible to ascertain from the order impugned in this petition as to on what grounds the disqualification of the respondent No.1 is sought. It is only upon recording of the finding that the petition suffers from the defect in pleading the material facts, that the question would arise as to whether the requirement is mandatory or directory.

18. So far as the question of non-compliance of clause (b) of sub-rule (3) of Rule 6 and sub-rule (4) of Rule 6 of the said Rules is concerned, there is no finding recorded by the Collector in the order impugned that the petition presented was accompanied by the copies of the documentary evidence, if any, and that it contains a statement giving the names and addresses of the persons from whom the information is alleged to have been received by the petitioner. The order also does not disclose as to the manner in which the petition and the annextures thereto have been verified and whether such verification is in the manner laid down in the Code of Civil Procedure for the verification of pleadings. It is only upon recording of the findings on all these aspects that the question can be considered as to whether the requirement is directory or mandatory.

19. The Collector has thus failed to apply his mind to find out whether there are any such defects or deficiencies or what are the defects or deficiencies; whether the defects or deficiencies found are of a very formal or technical nature, which can be permitted to be cured or rectified; or whether for non-compliance of such defects or deficiencies, the petition is required to be dismissed or not. The Collector has failed to perform his statutory duty conferred by sub-rule (1) of Rule 7 of the said Rules. The order impugned cannot, therefore, be sustained and the same will have to be quashed and set aside and the matter will have to be remanded back to the Collector to decide it afresh in accordance with law, after recording the findings in the mode and manner pointed out in earlier paras.

20. In the result, the petition is allowed. The order dated 14-2-2012 passed by the Collector, Akola, in Case No.MC/Balapur/2/2011-12, is hereby quashed and set aside. The matter is remanded back to the Collector to decide the same afresh in accordance with law, after giving the parties an opportunity of being heard in the matter and by keeping in mind the observations made by this Court in the judgment. Needless to say that this Court has not expressed any opinion on the merits of the matter.

21. Rule is made absolute in above terms. No order as to costs.

Petition allowed.