2016(7) ALL MR 890
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)

Z. A. HAQ, J.

Sau. Sharda w/o. Gopal Kalore & Ors. Vs. The Collector, Buldana & Ors.

Writ Petition No.87 of 2016

29th July, 2016.

Petitioner Counsel: Shri S.P. BHANDARKAR
Respondent Counsel: Shri A.D. SONAK, A.G.P, Shri D.M. KALE, Shri A.M. GHARE with Shri S.D. CHOPDE

(A) Maharashtra Local Authority Members' Disqualification Act (1986), Ss.3(1)(a), 3(1)(b) - Maharashtra Local Authority Members' Disqualification Rules (1987), R.7(6)(ii)(b) - Disqualification of Councillor - Collector has not supplied or made known to Councillors list of documents and list of witnesses by which he proposed to sustain article of charges - Submission that list of documents and list of witnesses given in petition has to be considered as compliance of Rule, cannot be accepted - R.7(6)(ii)(b) casts obligation on Commissioner or Collector, as the case may be, and not on person who filed petition - Non-compliance of mandates of R.7(6)(ii)(b) makes order of disqualification unsustainable. 2011(1) ALL MR 934 (S.C.), 2015(2) ALL MR 780 Ref. to. (Paras 9, 10, 11, 12)

(B) Maharashtra Local Authority Members' Disqualification Act (1986), S.3(1)(b) - Maharashtra Local Authority Members' Disqualification Rules (1987), R.7(3)(b) - Disqualification of Councillor - Mandates of R.7(3)(b) - Disqualification u/S.3(1)(b) is not attracted if political party or aghadi or front has condoned act of Councillors, of voting contrary to whip - Nothing on record to show that copy of petition filed before Collector was sent to leader of political party or aghadi or front as required by R.7(3)(b) - Impugned order of disqualification unsustainable - Matter remitted to Collector for further enquiry. (Para 13)

Cases Cited:
Kedar Shashikant Deshpande Vs. Bhor Municipal Council and Ors., 2011(1) ALL MR 934 (S.C.)=(2011) 2 SCC 654 [Para 7,10]
Avinash Gulabrao Mardikar Vs. Divisional Commissioner, Amravati Division, Amravati and Ors., 2015(2) ALL MR 780=2015(2) ABR 759 [Para 8]


JUDGMENT

JUDGMENT :- Heard learned advocates for the respective parties.

2. RULE. Rule made returnable forthwith.

3. The petitioners have assailed the order passed by the Collector disqualifying them under Section 3(1)(a) and Section 3(1)(b) of the Maharashtra Local Authority Members' Disqualification Act, 1986 (hereinafter referred to as "Disqualification Act, 1986").

4. In the general elections of the Municipal Council, Shegaon held on 11th December, 2011, ten candidates of Indian National Congress were declared elected. Present four petitioners and the present respondent No.4 were elected as candidates of Indian National Congress.

The respondent No.4 initiated the proceedings under Section 3(1)(a) and Section 3(1)(b) of the Disqualification Act, 1986 contending that in the meeting of 10 Councillors held on 15th December, 2011 resolutions were passed regarding constitution of group of Indian National Congress Party, electing the respondent No.4 as the Group Leader and about powers of Group Leader. According to the respondent No.4, he furnished the necessary information to the Collector on 16th December, 2011 as required by the Maharashtra Local Authority Members' Disqualification Rules, 1987 (hereinafter referred to as "Disqualification Rules, 1987"). The respondent No.4 contended that Shri Pramod Vishwasrao Deshmukh replaced the respondent No.4 as Group Leader on 2nd April, 2013 and Shri Pramod Vishwasrao Deshmukh was elected as the President of the Municipal Council on 18th July, 2014. Shri Pramod Vishwasrao Deshmukh died on 6th March, 2015 because of which the post of President of the Municipal Council and the post of leader of the group of Indian National Congress became vacant.

The respondent No.4 pleaded that the election programme for the post of President of the Municipal Council was declared on 17th March, 2015 a meeting of the Councillors of the Indian National Congress Party, Shegaon Municipal Council was held on 18th March, 2015 in which the respondent No.4 was elected as Group Leader and Shri Shailendra Mahadeorao Patil was declared as proposed candidate for the post of President of the Municipal Council, that the petitioners were present in the said meeting, however, they had not put their signatures on the proceedings of the meeting. The nomination papers were to be submitted on 19th and 20th March, 2015 and the election was to be held on 26th March, 2015. The respondent No.4 claimed that he being the Group Leader had issued whip under his signature on 25th March, 2015 directing the Councillors of the Indian National Congress Party to abide by the resolutions / instructions passed/ given in the meeting dated 18th March, 2015, and the whip was served on the petitioners.

On 13th March, 2015 the petitioner No.3 submitted an application along with necessary information in the required form as per rule 3(1) of the Disqualification Rules, 1987 to the Collector, Buldana for approval of GroupB of Indian National Congress Party in Municipal Council, Shegaon. The respondent No.4 claimed that this act of the petitioners showed that they had voluntarily given up the membership of group of Indian National Congress in Municipal Council, Shegaon and therefore, they were liable to be disqualified under Section 3(1)(a) of the Disqualification Act, 1986 from continuing as Councillors. The respondent No.4 contended that the petitioners had voted for the post of President of the Municipal Council in favour of the petitioner No.1 against the directions of whip. A meeting of Indian National Congress Party in Municipal Council, Shegaon was called on 8th April, 2015 in which a resolution was passed that the act of the petitioners of voting in violation of the directions of the whip should not be condoned. With these pleadings the respondent No.4 prayed that the petitioners be disqualified under Section 3(1)(b) of the Disqualification Act, 1986 from continuing as Councillors.

5. The learned Collector proceeded with the matter and after receiving the reply of the petitioners, articles of charge were framed and were issued to the parties. The list of documents on the basis of which the articles of charge were proposed to be proved was given to the parties. The learned Collector recorded the evidence and after considering the arguments made on behalf of the respective parties, by the impugned order, concluded that the petitioners are liable to be disqualified from the post of councillors of the Municipal Council, Shegaon as per Section 3(1)(a) and 3(1)(b) of the Disqualification Act, 1986. The petitioners being aggrieved by this order have filed this petition.

6. Shri S.P. Bhandarkar, advocate has made exhaustive arguments on various points to substantiate that the impugned order is unsustainable in law. Similarly, Shri A.M. Ghare, learned advocate has made elaborate submissions to support the impugned order. The learned A.G.P. has also supported the impugned order.

However, after crystallizing the submissions, I find that the impugned order is unsustainable as the learned Collector has not complied with the mandate of Rule 7(6)(ii)(b) of the Disqualification Rules, 1987.

7. Rule 7 of the Disqualification Rules, 1987 provides the procedure to be followed by the Commissioner or the Collector, as the case may be, while considering the petition under Rule 6 of the Disqualification Rules, 1987. As per Rule 7(1) the Collector or the Commissioner, as the case may be, on receipt of the petition, has to consider whether the petition complies with the requirements laid down in Rule 6 of the Rules of 1987. Rule 7(2) lays down that if the petition does not comply with the requirements of Rule 6, the Collector or Commissioner, as the case may be, shall dismiss the petition and give intimation to the petitioner accordingly. The Hon'ble Supreme Court in the judgment given in the case of Kedar Shashikant Deshpande Vs. Bhor Municipal Council and others, reported in (2011) 2 SCC 654 : [2011(1) ALL MR 934 (S.C.)] as held that the provisions of Rule 6 in the matter of filing of concise statement of material facts and verification is directory and the petitioner can be permitted to cure the defects in that regard. Thus, the petition will have to be dismissed if the petitioner fails to cure the defects even after they are pointed out to him.

8. In the judgment given by this Court in the case of Avinash Gulabrao Mardikar Vs. Divisional Commissioner, Amravati Division, Amravati and others reported in 2015(2) ABR 759 : [2015(2) ALL MR 780], this Court has held that the provisions of Rule 7(3) to Rule 7(15) of the Rules of 1987 are mandatory and if the order disqualifying the councillor is passed without following the prescribed procedure laid down in the above rules, the order is unsustainable.

9. Rule 7(6) of the Disqualification Rules, 1987 lays down that the Commissioner or the Collector, as the case may be, shall draw up the substance of imputations of disqualification into definite and distinct articles of charge. It further lays down that the statement of the imputations of disqualification in support of each article of charge shall contain the statements of all the relevant facts including any admission or concession made by the Councillor. Subclause (b) of Clause (ii) of subRule(6) of Rule 7 of the Disqualification Rules, 1987 lays down that the imputations of disqualification in support of each article of charge shall contain the list of documents by which and the list of witnesses by whom the articles of charge are proposed to be sustained. Subrule (6) of Rule 7 of the Disqualification Rules, 1987 lays down that this exercise has to be done by the Authority considering the petition, that is by the Commissioner or the Collector, as the case may be.

10. In the judgment given in the case of Kedar Deshpande and others [2011(1) ALL MR 934 (S.C.)] (supra) the Hon'ble Supreme Court has laid down in paragraph 22 that in the matter of disqualification there is no lis between the person moving the petition and the member/ councillor who is alleged to have incurred disqualification. It is held that it is not adversarial kind of litigation and even if the petitioner withdraws the petition it will not make difference and the mandate of the provisions are required to be carried out. It is held that the provisions operate on their own and the only purpose of the filing of the petition is to bring the relevant information to the notice of the concerned authority. The provisions of Rule 7 of the Disqualification Rules, 1987 are required to be considered in the background of the ratio of the above referred judgment.

11. The scheme of subrule(3), subrule(4), subrule(5), sub rule(6), subrule(7), subrule(8), subrule(9) and subrule(10) shows that after receipt of the petition if it is found that the petition is not liable to be dismissed under subrule(2) of Rule 7, the Commissioner or the Collector, as the case may be, is under obligation to take steps as laid down in Rule 7(3) to Rule 7(15). Rule 7(6)(ii)(b) casts an obligation on the Collector to draw up or cause to be drawn up the statement of imputations of disqualification in support of each article of charge and it should contain a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained. This indicates that the list of witnesses has to be supplied by the Commissioner or the Collector, as the case may be, to sustain the articles of charge drawn up by him.

12. Shri A.M. Ghare, advocate for the respondent No.4 has pointed out from the petition filed by the respondent No.4 before the Collector that it contains list of witnesses whom the petitioner proposed to examine to support the accusations made by the respondent No.4. It is submitted that as the respondent No.4 had supplied the list of witnesses, it has to be held that there is no violation of subclause (b)of Clause (ii) of subrule(6) of Rule 7 of the Disqualification Rules, 1987. Considering the scheme of the Rules the submission cannot be accepted. There is nothing under the rules which suggests that the Articles of Charge are required to be drawnup by the person who has filed the petition under Rule 6 of the Disqualification Rules, 1987. Rule 7(6)(i) casts obligation on the Commissioner or the Collector, as the case may be, to draw up or cause to be drawn up the Articles of Charge. The list of witnesses has to be supplied to the Councillor against whom charge is framed to put him on notice that the charge is proposed to be sustained by examining the witnesses whose names are shown in the list.

Rule 7(6)(ii)(b) of the Disqualification Rules of 1987 uses the term "sustain". Black's Law Dictionary explains "sustain" to mean "to support or maintain" or "to substantiate or corroborate". Rule 7(4) lays down that the Commissioner or the Collector, as the case may be, shall consider the question of disqualification after making preliminary enquiry and as per rule 7(5), the enquiry has to be as prescribed by subrule6 to subrule15 of Rule 7. As per Rule 7(6) (ii)(b) the requirement of giving the list of documents and the list of witnesses to the Councillor is to enable him to know that the articles of charge would be proved on the basis of the documents and the witnesses referred in the list. The articles of charge are required to be drawn up by the Commissioner or the Collector and therefore, the intention of Rule 7(6)(ii)(b) is clear that the list of documents and the list of witnesses has to be supplied by the Commissioner or the Collector. If the submission made on behalf of the respondent No.4 that the list of documents and the list of the witnesses given in the petition has to be considered as compliance of the rule is accepted, then it will mean that the list of documents and the list of witnesses is mechanically prepared before the articles of charge are drawn up. In a given case, after the articles of charge are drawn, the Commissioner or the Collector, may supply the same list of documents and the same list of witnesses which are supplied alongwith the petition under Rule 6 of the Disqualification Rules, 1987, however, the record must show that the Commissioner or the Collector, propose to prove/ support/ maintain/ substantiate/ corroborate the articles of charge on the basis of those documents and witnesses. The Councillor against whom the disqualification proceedings are taken up should be made aware about the documents and the witnesses on the basis of which the Commissioner or the Collector proposes to prove the articles of charge. It is well established that when the statute provides for the manner in which something should be done, then it should be done in that manner only.

In the present case, admittedly, the Collector has not supplied or has made known to the Councillor the list of witnesses, by whom he proposed to sustain the articles of charge. As Rule 7(6)(ii)(b) of the Disqualification Rules, 1987 is mandatory and as there is noncompliance of it, the impugned order is unsustainable in law.

13. The disqualification under Section 3(1)(b) of the Disqualification Act, 1986 is not attracted if the political party or aghadi or front has condoned the act of the Councillors, of voting contrary to the directions issued by the political party or aghadi or front. Therefore, clause (b) of subrule(3) of Rule 7 of the Disqualification Rules, 1987 lays down that if the petition seeking disqualification of the Councillors is not by the leader of the political party or aghadi or front, the copy of the petition should be sent to the leader of the political party or aghadi or front and the leader of political party or aghadi or front may forward his comments, to the Commissioner or the Collector. Rule 7(4) of the Rules of the Disqualification Rules, 1987 requires that the Commissioner or the Collector has to consider the comments received under subrule(3) of Rule 7.

In the present case, the disqualification of the petitioners is sought under Section 3(1)(b) of the Disqualification Act, 1986. There is nothing on the record to show that the copy of the petition filed by the respondent No.4 before the Collector was sent to the leader of the political party or aghadi or front as required by Rule 7(3)(b) of the Disqualification Rules, 1987.

14. In view of the above, it has to be held that the impugned order is unsustainable in law and it has to be set aside and the matter is required to be remitted to the Collector, Buldana for further enquiry from the stage of Rule 7(3) of the Disqualification Rules, 1987.

15. Hence, the following order:

i) The impugned order is set aside.

ii) The matter is remitted to the Collector, Buldana for enquiry afresh.

iii) The Collector shall undertake the enquiry from the stage of Rule 7(3) of the Maharashtra Local Authority Members' Disqualification Rules, 1987.

iv) The enquiry shall be completed and the petition shall be disposed till 15th October, 2016.

The parties shall appear before the Collector, Buldana on 26th August, 2016 and abide by the further instructions/ orders in the matter.

Rule is made absolute in the above terms. In the circumstances, the parties to bear their own costs.

Ordered accordingly.