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TMI Blog2010 (12) TMI 1250X X X X Extracts X X X X X X X X Extracts X X X X ..... rashtra Government Gazette on June 27, 2008. The result of the election was as under :- A) NCP - 8 Councillors 1) Yashawant Baburao Dal - Petitioner in SLP (C) No.7479/2010. 2) Manisha Rajkumar Kale 3) Rajshree Anil Sagle - Petitioner in SLP (C) No. 7481/2010 4) Vijaya Ananta Ulhalakar - Petitioner in SLP (C) No.7478/2010 5) Kedar Shashikant Deshpande - Petitioner in SLP (C) No.7477/2010 6) Jayshree Rajkumar Shinde - Petitioner in SLP (C) No.7480/2010 7) Ganesh Anant Pawar 8) Dattatraya Ramchandra Palakar - Petitioner in SLP (C) No.7482/2010. B) Congress (I) - 8 Councillors 1) Kailas Shankar Dhawale 2) Suvarna Mohan Shinde 3) Sachin Ashok Harnaskar 4) Truptee Jagadeesh Kirve 5) Tanaji Sadu Taru 6) Gajanan Kisan Danawale 7) Sanjay Dattartraya Jagtap 8) Shankar Baban Pawar C) Independent - 1 Councillor 1) Vittal @ Lahu Ramchandra Shinde The said independent candidate joined NCP immediately on June 27, 2008. 4. Mr. Yashawant Baburao Dal was appointed as Pratod/Gatneta of NCP on June 27, 2008. The Pratod/Gatneta of NCP, Mr. Yashawant Baburao Dal with his signature submitted the information in Form I as per Rule 3(1)(a) of Maharas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incurred disqualification under Section 3(1)(a) of Maharashtra Local Authority Members Disqualification Act, 1986 (`The Act', for Short). The contents of the petition were verified before Notary only and an affidavit in support of the petition as per the requirements under CPC was not filed. The Disqualification Petition was listed for the first time on January 4, 2010 when by way of oral argument the appellants raised preliminary objection regarding non-compliance with Rule 6(3) and Rule 6(4) of the Rules and prayed to dismiss the said petition in limine. Again the Disqualification Petition was listed before the Additional Collector, Pune on January 8, 2010 when both Mr. Ganesh Pawar and Mr. Suresh Ghule were absent and therefore the matter was adjourned to January 12, 2010. However, on the same day after the departure of Mrs. Jayshree Shinde and Advocate for the appellants Mr. D.S. Patil, the advocate for the respondents gave an application at about 1.35 P.M. seeking permission to verify the documents filed along with the Petition i.e. (Exh.A to Exh.I). The Additional Collector, Pune granted the permission as prayed for. The appellants claim that before granting the permissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of the petition or failure to file a supporting affidavit in terms of Rule 6(4) of the Rules cannot be regarded as having vitiating effect on the disqualification petition and no illegality was committed by the Additional Collector when permission to verify the documents was granted by him on January 8, 2010. Rule 6(4) of the Rules which deals with verification of disqualification petition and annexures thereto, reads as under:- (4) Every Petition and any annexure thereto shall be signed by the petitioners and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings. Whereas Rule 6(3) of the Rules is as follows: - (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 address of such person and the gist of such information as furnished by each such person. A bare reading of the above quoted provisions makes it abundantly clear th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance was followed by this Court in K.M. Mani vs. P.J. Antony (1979) 2 SCC 221. 10. In F.A. Sapa vs. Singora (1991) 3 SCC 375, this Court held that a defect in the verification of the petition as well as a defect in the affidavit can be cured and it is not fatal to the maintainability of the petition. The failure to verify the annexures to the petition at the time of filing of the petition in terms of Rule 6(4) and 6(3) of the Rules would not vitiate the proceedings nor would render the petition invalid nor would affect the jurisdiction of the Collector to entertain and decide the Disqualification Petition. 11. In the case of Dr. Mahachandra Prasad Singh vs. Chairman, Bihar Legislative Council and Others (2004) 8 SCC 747, while interpreting the provisions of Schedule X of the Constitution, in a petition involving the issue of disqualification of a Member of Legislative Council belonging to the Indian National Congress under the Bihar Legislative Council Members (Disqualification on Ground of Defection) Rules, 1994, this Court has considered the question whether infraction of those Rules would render the entire proceedings initiated by the Chairman invalid or without jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence to be made to the competent authority is only for the purpose of bringing to the notice of the competent authority the relevant information about the disqualification. Section 7 of the Act does not contemplate a lis between the two private parties in a disqualification petition. It may be filed for a limited purpose of bringing relevant information to the notice of the Collector who is duty bound to decide the petition in accordance with law. 12. However, in this case the verification was carried subsequently with the permission of the Additional Collector and as regards the supporting affidavit it has been pointed out in para (1) of the counter affidavit of respondent Nos. 4 and 5 filed in the Special Leave Petition that the petition was supported by an affidavit which is not controverted by the appellants. The claim of the appellants that before granting permission to the respondents to verify the annexures, the appellants should have been heard and, therefore, verification of the annexures done on January 8, 2010 should be regarded as no verification in the eyes of law cannot be accepted. Verification of the disqualification petition and/or annexures accompanying the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition nor this point was raised before the High Court. In Remington Rand of India Ltd. vs. Thiru R. Jambulingam (1975) 3 SCC 254, this Court, did not allow the plea of lack of jurisdiction to be taken for the first time in an appeal, after the appellant having submitted to the jurisdiction of the Authority in earlier proceedings. The question whether Additional Collector had jurisdiction to entertain and decide the disqualification petition filed by the respondents is essentially a question of fact. It is pertinent to note that Section 13(3) of the Maharashtra Land Revenue Code, 1966 contemplates statutory delegation in favour of the Additional Collector. Whether there was statutory delegation in favour of the Additional Collector in terms of Section 13(3) of the Maharashtra Land Revenue Code, is a question of fact. Therefore, the appellants cannot be permitted to argue for the first time before this Court the point that Additional Collector had no jurisdiction to entertain the disqualification petition filed by the respondents. Even otherwise, the record clinchingly shows that the appellants had submitted to the jurisdiction of the Additional Collector and participated in the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge 2048. The meaningful reading of the above quoted notification makes it clear that the Additional Collectors are delegated powers of Collectors under the Maharashtra Land Revenue Code, 1966 as well as under any law for the time being in force. There is no manner of doubt that the Maharashtra Local Authority Members' Disqualification Act, 1986 is a law for the time being in force. Therefore, in this case the Additional Collector, Pune was competent to entertain, hear and decide the disqualification petition filed by the respondents. Thus, it is not correct to say that the Additional Collector had no jurisdiction to entertain the disqualification petition filed by the respondents because he is not Collector within the meaning of Section 2(b) of the Act. 15. Even otherwise, the issue of disqualification cannot and should not remain undecided due to any reason whatsoever as it involves issues of public importance and not merely private rights and, therefore, this Court can itself, adjudicate upon and decide the same. In Rajendra Singh Rana Ors. vs. Swami Prasad Maurya ors. (2007) 4 SCC 270, where the issue of disqualification of MLAs arose before this Court, the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss (I) had agreed to the merger of the front of the appellants with Congress (I) etc. The pleadings of the appellants before the Additional Collector and the High Court, in fact suggest a split of the appellants from their original political party i.e. NCP. The appellants had throughout contended that they had voluntarily separated from NCP and formed a separate Group/Aghadi/Front. There is no mention of split in the NCP or appellants joining the Congress (I) party. It may be mentioned that the clause relating to split is deleted from the provisions of the Act of 1986 and is no longer available as defence in the matter of disqualification. 18. Even otherwise also, the plea of appellants that their front had merged with Congress (I) has no factual basis. There is nothing on the record to indicate that Congress (I) party had permitted the front of the appellants to merge with the said party nor there is evidence showing that the appellants were permitted to join Congress (I) party. Section 5 of the Act contemplates the merger of the original political party or Aghadi or Front with another political party or Aghadi or Front and by virtue of such merger if a Member of the original p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pute that Mr. Yashawant Baburao Dal who was appointed as Pratod/Gatneta of NCP had submitted the information in Form I as per Rule 3(1)(a) of the Rules to the District Collector stating the names and addresses of 9 councillors of NCP, wherein names of the present six appellants were also included. It is not in dispute that the six appellants had submitted the information in Form III as per Rule 4(1) of the Rules mentioning that each of them was elected as councillor and was affiliated to political party namely NCP. It is the specific case of the appellants that after election of President and Vice President of Bhor Municipal Council on July 19, 2008, the appellants had left NCP and formed Bhor Shahar Vikas Swabhimani Sanghathana on December 22, 2009. It is also their case that Mrs. Jayshree Rajkumar Shinde who has filed SLP arising out of Writ Petition No.966/10 was appointed Pratod of the Sanghathana. On December 23, 2009 she had given a letter to the District Collector to that effect she had also submitted Form I as per Rule 3(1)(a) of the Rules, whereas, all the 6 appellants had submitted Form III as per Rule 4(1) of the Rules. Thus, it is admitted by the appellants themselves t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants had not only signed the requisition for calling the meeting for removal of the President and/or the Vice President but also voted in favour of no confidence motion. According to the learned counsel for the respondent Nos. 4 and 5 the fact that the appellants had supported the move to bring about no confidence motion and voted in favour of the said motion is evident from their own letter dated December 29, 2009 addressed by Mrs. Jayshree Rajkumar Shinde who was appointed as Pratod/Gatneta of the Sanghathana to the Collector. It was contended that pursuant to the requisition, the Collector had convened a meeting on December 30, 2009 for considering the motion of no confidence against the President who was a member of NCP is not in dispute and, therefore, for disobeying whip issued by the authorized person of the party the appellants should be regarded to have incurred disqualification also under the provisions of Section of 3(1)(b) of the Act. In reply, it was contended by the learned counsel for the appellants that this point was not argued before the Additional Collector or High Court and, therefore, should not be permitted to be urged for the first time in appeals filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as published in the newspaper dated December 8, 2009. There is no manner of doubt that the Pratod of NCP had sensed that a move was afoot to bring no confidence motion against the President and Vice President of Bhor Municipal Council by the appellants who were belonging to NCP, and therefore, it had become necessary for him to issue whip to the councillors of NCP to restrain the appellants and others from joining the move for removal of President or Vice President of the Council. The whip which was published in the newspaper dated December 28, 2009 forms part of the record. There is no manner of doubt that by the said whip it was directed to the councillors of NCP not to sign any requisition for bringing a motion of no confidence and also not to support any such no confidence motion. Despite the whip, the appellants had not only signed the requisition requesting the Collector to call a meeting for consideration of no confidence motion against the President but had also in fact voted in favour of the said motion. This is evident from the contents of letter dated December 29, 2009 addressed by Mrs. Jayshree Rajkumar Shinde who was Pratod of the Sanghathana to the Collector. Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... municipal Council, Zilla Parishad or, as the case may be, Panchayat Samiti contrary to any direction issued by the political party or aghadi or front to which he belongs. 21. According to the explanation (a), for the purposes of Section 3 of the Act a person elected as a councillor or as the case may be, a member shall be deemed to belong to the political party or aghadi or front, if any, by which he was set up as candidate for election as such councillor or member. The fact that each of the six appellants was set up as a candidate for election as councillor of Bhor Municipal Council by NCP is not in dispute. Therefore, for the purposes of Section 3 of the Act, the appellants will have to be regarded as belonging to the political party namely NCP. The fact that the appellants had disobeyed the whip issued is not in disputed by them before this Court. Therefore, on the facts and in the circumstances of the case it will have to be held that appellants had also incurred disqualification in terms of Section 3(1)(b) of the Act. 22. The contention raised by the learned counsel for the appellants is that the failure on the part of the Collector, District Pune, to comply with the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eclaration in Form-III, which inter-alia, contains the information relating to the political party to which the councillor belongs. As per rule 4(3) summary of information furnished by the councillor to the Collector has to be published in the Official Gazette. Further, on a critical study of the provisions of rule 3 read with rule 4(3) of the Rules, it is evident that neither rule 3 nor rule 4 nor any other rule of the Rules mentions that a political affiliation of the councillor would come into existence only upon submission of either Form-I, Form-III and/or publication of information in the Official Gazette. It is rightly contended by the learned counsel for the respondent Nos.4 5 that these forms and publication in the Official Gazette have merely an evidentiary value which would prima facie establish that a councillor belongs to a particular political affiliation and nothing more. The alleged non-availability of the evidence relating to the political affiliation of the appellants in the Form-I, Form- III and/or publication in the Official Gazette would not mean that the appellants did not belong to NCP. Form-I, Form-III and/or publication of information in the Official Gazet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Collector. 27. What is noticed by this Court is that the Act of 1986 is basically in vernacular language, wherein the Sections are described as 3 (ka), (kha) (ga) but in English it is mentioned as 3(1) (a) (b) and (c). The appeals cannot be accepted on the ground that a wrong provision of law is mentioned inadvertently by the Collector in his order. 28. The contention that it is well settled that the Court should not interfere with the election of the democratically elected candidate and, therefore, the appeals should be accepted is difficult to accept. It is true that it is laid down in a series of reported decisions of this Court that the Court normally should not lightly interfere with the election of a democratically elected candidate. However, here in this case the Court finds that the appellants had incurred disqualification under the Act. The question of disqualification of the appellants was raised by respondent Nos. 4 5 and, therefore, not only the Competent Authority under the Act was required to decide the said question, but this Court also has to determine the question whether disqualification is incurred by the appellants. If the Court comes to the conclusion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 is an exception to Section 3 which deals with merger of an original political party or aghadi or front with any political party or aghadi or front and provides that in case of such merger councillor or a member should not be disqualified under sub-Section (1) of Section 3 of the Act. It was never the case of the respondent Nos. 4 5 that the appellants had formed a party and that party had merged into Congress (I) party and had therefore, incurred disqualification. Section 5 speaks of merger of original political party. It is not the case of respondent Nos. 4 5 that original political party of the appellants namely NCP had merged with any other political party. Therefore, there was nothing to be decided as preliminary issue for the purpose of ascertaining whether the disqualification petition filed by the respondent Nos. 4 5 was maintainable. The Additional Collector did not commit any error in not deciding so called preliminary issue relating to maintainability of the petition and therefore, the appellants are not entitled to any benefit on the ground that there was failure of exercise of jurisdiction by Additional Collector. 33. The net result of the above discussion is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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