Manoj and Others vs The Collector and Others

Z.A. Haq, J—Heard Shri A.S. Kilor, learned advocate for the petitioner, Shri P.J. Mehta, learned advocate for the respondent No. 2 and Shri N.S. Khubalkar, learned A.G.P. for the Respondent No. 1.

RULE.

Rule made returnable forthwith.

The petitioners have challenged the order passed by the Collector on the application filed by the respondent No. 2 under Section 7 of the Maharashtra Local Authority Members Disqualification Act, 1986 (hereinafter referred to as "the Disqualification Act, 1986") disqualifying the petitioners from holding the office of member of Panchayat Samiti for six years.

The undisputed facts are :

The petitioners got elected as members of Panchayat Samiti, Chandrapur in the general elections held on 17th November, 2012. The petitioner Nos. 2 and 3 and the respondent No. 2 got elected as candidates of "Bhartiya Janta Party". The petitioner No. 1 got elected as candidate of "Gondwana Gantantra Party". After the petitioners and the respondent No. 2 got elected they formed a group known as "Bhartiya Janta Pakshacha Gut" (hereinafter referred to as "Gut").

Though the petitioners have not admitted in this petition that the respondent No. 2 was elected as a group leader of the Gut, the facts on record show that earlier there was no dispute that the respondent No. 2 was elected as group leader of the Gut.

The elections for the office of the Chairman and the Vice- Chairman of the Panchayat Samiti were scheduled for 14th September, 2014. According to the respondent No. 2, meeting of the Gut was called on 10th September, 2014 for which notices were issued to all the members of the Gut on 6th September, 2014. According to the respondent No. 2, the meeting was held on 10th September, 2014 in which it was resolved that the respondent No. 2 would be the candidate for the post of Chairman and Shri Dayanand Nemichand Bankuwale would be the candidate for the post of Vice- Chairman. According to the respondent No. 2, the petitioners were absent in the meeting. The case of the respondent No. 2 is that in the meeting held on 10th September, 2014 he was authorized to issue whip and accordingly he had issued whip on 12th September, 2014 directing the members of the Gut to vote in favour of the respondent No. 2 for the post of Chairman and in favour of Shri Dayanand Nemichand Bankuwale for the post of Vice-Chairman. According to the respondent No. 2, the petitioners were not present at their residences when the person who was to serve the whip had gone and therefore, the whip was pasted on the doors of the houses of the petitioner No. 1 and petitioner No. 2. According to the respondent No. 2, the petitioner No. 3 was also not present when the person who was to serve the whip had gone to his residence and the whip was served on her mother-in-law. The whip was published in daily "Lokmat"(Marathi) and in daily "Mahavidarbha" dated 13th September, 2014.

It is undisputed that the petitioner Nos. 2 and 3 were absent in the special meeting held on 14th September, 2014 for the election of the Chairman and the Vice-Chairman of the Panchayat Samiti. The petitioner No. 1 contested the election for the post of Vice-Chairman of the Panchayat Samiti.

The respondent No. 2 filed an application under Section 7 of the Disqualification Act praying that the petitioners be disqualified to be the members of the Panchayat Samiti to contest the election for six years.

The petitioners opposed the application filed by the respondent No. 2. The petitioners submitted before the Collector that they were not served with the notice of meeting of the Gut alleged to have been held on 10th September, 2014. The petitioner denied the service of whip as alleged by the respondent No. 2. The petitioner Nos. 2 and 3 pleaded that they were not in the town on 10th September, 2014 and also on 14th September, 2014 and therefore, they could not attend the meeting.

After considering the documents and the evidence on the record, the learned Collector passed the impugned order. The petitioners, being aggrieved by the order passed by the learned Collector, have filed this writ petition.

Shri Kilor, the learned advocate for the petitioners has submitted that the notice of meeting alleged to have been held on 10th September, 2014 was not served on the petitioners. It is submitted that the respondent No. 2 has failed to prove that the meeting was conducted on 10th September, 2014. The learned advocate has submitted that even if it is accepted that the meeting of the Gut is held on 10th September, 2014 the notice dated 6th September, 2014 does not show that the subject of authorizing the respondent No. 2 to issue whip was to be discussed in the meeting held on 10th September, 2014. Even according to the respondent No. 2, the whip was not served on the petitioners and the whip was pasted on the doors of the houses of the petitioner Nos. 1 and 2 and the whip was served on the mother-in-law of the petitioner No. 3. The submission is that it cannot be said that the whip was properly served on the petitioners. The learned advocate, relying on the copy of the whip which was pasted on the door of the houses of the petitioners, has submitted that there is no direction in it that the meeting scheduled on 14th September, 2014 should be attended. It is further submitted that the respondent No. 2 has neither pleaded nor proved that the petitioners are the subscribers of the newspapers in which the whip was published.

Shri Kilor advocate has submitted that Rule 3(5) of the Maharashtra Local Authority Members Disqualification Rules, 1987 (hereinafter referred to as "the Disqualification Rules, 1987") has been misread by the learned Collector, which has resulted in the erroneous order. The contention is that the authorization to issue whip has to be shown and it is the mandatory requirement as per rule 3(5) of the Disqualification Rules, 1987 and the provisions of Rule 3(5) of the Disqualification Rules, 1987 does not confer authorization on the leader of the Gut to issue whip. It is submitted that there is no inbuilt authorization in the leader of the Gut to issue whip. In support of this submission the learned advocate has relied on the judgment given by the Hon''ble Supreme Court in the case of Sahebrao Kharat and Bagwan Tamijabee Shaikh Ahmed Vs. The Collector, Jalna and Others, (2011) 3 ALLMR 512 : (2011) 4 BomCR 354 : (2011) 2 MhLj 639 . It is submitted that the petitioner No. 2 was required to go out of town to attend funeral of her mother''s sister because of which she could not attend the meeting held on 14th September, 2014 and the learned Collector has failed to appreciate the genuine difficulty of the petitioner No. 3 which vitiates the impugned order insofar as disqualifying the petitioner No. 3 is concerned.

It is submitted that the impugned order be set aside and the application filed by the respondent No. 2 under Section 7 of the Disqualification Act, 1986 be dismissed.

Shri Mehta, the learned advocate for the respondent No. 2 submitted that the respondent No. 2 was unanimously elected as leader of the Gut and this was notified by the Collector on 3rd March, 2012. It is submitted that the respondent No. 2 being the leader of the Gut, is authorized to issue whip as he has inherent powers to do so. Reliance is placed on the judgment given by the Division Bench of this Court in the case of Gajanan Vs. Sharad Namdeo Pawar and Others, (2013) 6 ABR 52 : (2013) 5 ALLMR 733 : (2013) 6 BomCR 806 : (2013) 6 MhLj 505 .

Referring to the provisions of Section 3(1)(a) and (b) of the Disqualification Act, 1986 and relying on the judgment given in the case of Gajanan Suryawanshi (supra) it is submitted that the requirement of the provisions of Section 3 of the Disqualification Act, 1986 that the member or councillor can be disqualified if the issuance of whip is proved and it is not required that the service of whip is required to be proved. The learned advocate has also relied on the judgment given by this Court in the case of Jitendra Himmat Biraris Vs. Kiran Gulabrao Patil and The District Collector . The learned advocate has submitted that in the present case whip was also published in two local newspapers and the petitioners had not taken any objection in the matter at the relevant time. It is further submitted that the petitioner Nos. 2 and 3 had not sought prior permission from the Gut for not attending the meeting scheduled on 14th September, 2014 which is permissible as per proviso below clause (b) of sub-section (1) of Section 3 of the Disqualification Act, 1986. It is submitted that the petitioner Nos. 2 and 3 now cannot be permitted to raise the ground of bonafide absence at the meeting held on 14th September, 2014.

It is submitted that the learned Collector has properly appreciated the documentary and oral evidence on the record and the legal position and has rightly allowed the application filed by the respondent No. 2 disqualifying the petitioners. It is prayed that the petition be dismissed with costs.

Shri N.S. Khubalkar, the learned Assistant Government Pleader has supported the impugned order.

The objection taken on behalf of the petitioners regarding authorization in favour of the respondent No. 2 to issue whip has to be considered on the basis of the facts on the record and the conduct of the parties. According to the respondent No. 2, meeting of the Gut was held on 10th September, 2014 in which it was decided that the respondent No. 2 will be the candidate for the post of Chairman and Shri Dayanand Nemichand Bankuwale would be the candidate for the post of Vice-Chairman and in this meeting the respondent No. 2, who is undisputedly the leader of the group, was authorized to issue whip. The challenge on behalf of the petitioners is that they were not given notice about this meeting. It has come on the record that the Gut comprised of 7 members and that other 4 members, excluding the petitioners, attended the meeting on 10th September, 2014. Except for the submission made on behalf of the petitioners that they were not served with the notice of the meeting held on 10th September, 2014 and that the respondent No. 2 has failed to prove that the meeting was held on 10th September, 2014, the petitioners have not been able to place on the record any material to show that the finding of fact recorded by the learned Collector that 4 members out of 7 members of the Gut attended the meeting held on 10th September, 2014 is not proper. All the members of the Panchayat Samiti, including the petitioners, were having knowledge that the elections for the posts of Chairman and Vice-Chairman of the Panchayat Samiti were to be held. It is not the case of the petitioners that they were not aware that the elections for the post of Chairman and Vice-Chairman of the Panchayat Samiti were to be held on 14th September, 2014. Having knowledge about these elections which were important for the members of the Panchayat Samiti, it is unbelievable that the petitioners were not having knowledge about the events. It is clear that the petitioners adopted policy of feigning ignorance only to suit their purpose and the falsity of this defence raised by the petitioners is clear from the subsequent events and their conduct. It is undisputed that the whip was published in two local news papers dated 12th September, 2014 i.e. two days prior to the date of meeting in which the elections for the posts of Chairman and Vice-Chairman of the Panchayat Samiti were to be held. It goes unexplained as to why the petitioners had not taken objection to the authority of the respondent No. 2 to issue whip. Though the petitioner Nos. 2 and 3 have tried to justify their absence by pleading that they were not in the town during the relevant period, it cannot be accepted that they could not have taken objection to the authority of the respondent No. 2 for issuing the whip by any other mode of communication. Moreover, the petitioner No. 1 was in the town and he even contested the election for the post of Vice-Chairman of the Panchayat Samiti but still he has not explained as to what prevented him from raising the objection at the relevant time that the respondent No. 2 had no authority to issue whip which was published in the newspapers. In these facts, the submissions made on behalf of the petitioners that the meeting of the Gut was not held on 10th September, 2014 and that the respondent No. 2 was not authorized to issue whip cannot be accepted.

The submissions made on behalf of the petitioners that the subject of authorizing the person to issue whip which was taken up in the meeting held on 10th September, 2014, was not on the agenda and therefore, it could not have been taken up, cannot be accepted. The learned advocate for the petitioners has not been able to point out any provision of the Act or anything from the Rules prohibiting the taking up of the subject to authorize a person to issue whip unless such subject is included in the agenda of the meeting. Furthermore, as observed above, even after publishing of the whip in the newspapers on 12th September, 2014 such objection was not raised by the petitioners and this objection is raised for the first time in the written statement filed before the Collector. In these facts, the submissions made on behalf of the petitioners in this regards cannot be accepted.

It is submitted on behalf of the petitioners that the whip which was pasted on the doors of the houses of the petitioner Nos. 1 and 2 only states that voting has to be done in favour of the respondent No. 2 and Shri Dayanand Nemichand Bankuwale and it does not mandate that the petitioners should attend the meeting which was scheduled on 14th September, 2014. The submission is fallacious. The directions to vote in favour of the respondent No. 2 and Shri Dayanand Nemichand Bankuwale means that the petitioners have to attend the meeting and cast their votes as directed. Moreover, the whip published in the newspapers states that the attendance in the meeting scheduled on 14th September, 2014 was necessary. The learned advocate for the petitioners has submitted that the directions incorporated in the whip published in the newspapers making the attendance compulsory are not reflected in the whip pasted on the door of the houses of the petitioner Nos. 1 and 2 and are also not found in the resolution alleged to have been passed in the meeting held on 10th September, 2014 and therefore, the directions incorporated in the whip published in the newspapers are improper. The submission has to be recorded only for discarding it as trivial and afterthought. The resolution passed in the meeting held on 10th September, 2014 required that voting was to be done in favour of the respondent No. 2 and Shri Dayanand Nemichand Bankuwale and therefore, it goes without saying that the petitioners were under obligation to attend the meeting scheduled on 14th September, 2014. Moreover, if the petitioners had any objection in the matter, it should have been raised immediately after the whip was published in the newspapers before 14th September, 2014.

The submission made on behalf of the petitioner No. 2 that she could not attend the meeting scheduled on 14th September, 2014 as she was required to go to village Kasbegavhan as her maternal aunt died and she was at village Kasbegavhan with her family till 16th September, 2014 is without any substance. On going through the documents filed by the petitioners on the record of the writ petition, I find that the petitioner No. 2 has not given relevant details in the matter i.e. the date of death of her maternal aunt and the distance of village Kasbegavhan from the village of her original place of residence i.e. Durgapur, District : Chandrapur. The petitioner No. 2 has not pointed out that she was not able to attend the meeting on 14th September, 2014 and that her presence was required at village Kasbegavhan on that date. The petitioner No. 2 cannot be permitted to wriggle out the provisions of the Disqualification Act, 1986 and the Disqualification Rules, 1987 on the basis of vague pleadings.

I am conscious that the provisions of the Disqualification Act, 1986 and the Disqualification Rules, 1987 are required to be construed strictly, however, the defences raised by the petitioners in the present case cannot be accepted and they cannot be permitted to frustrate the provisions of the Disqualification Act, 1986 and the Disqualification Rules, 1987/

In view of my finding that the respondent No. 2 has proved that the meeting of Gut was held on 10th September, 2014 and that the resolutions were passed in that meeting attended by 4 out of 7 members of the Gut to the effect that the respondent No. 2 and Shri Dayanand Nemichand Bankuwale would be the candidates for the posts of Chairman and Vice-Chairman of the Panchayat Samiti and that the respondent No. 2 was authorized to issue whip and that the whip was properly served on the petitioners, the judgments relied upon on behalf of the respective parties are not required to be discussed.

In view of the above, I find that the impugned order is proper and does not require any interference.

The writ petition is dismissed. Petitioner No. 1, petitioner No. 2 an petitioner No. 3 shall pay costs of Rs. Five Thousand each to the respondent No. 2 within two months.