DATTATRAYA MARUTI BAWALEKAR Vs. PANDURANG DAGADU PARTE

JUDGEMENT

(1.) The appellants in this batch of cases were elected as members of the Mahabaleshwar Devanstan Municipal Council in the elections held on 1st December, 1996. There are 17 wards in the council and 17 councillors were elected. At the time of election the councillors so elected did not associate with any political party or Aghadi or Front. They having contested as independent candidates on 2nd December, 1996 a meeting of these councillors was held and they formed themselves into an Aghadi Front with the name Mahabaleshwar Giristhan Nagar Parishad Shahar Vikas Aghadi. On 17-12-1996 the appellants informed respondent No. 3 that they have formed a Front as aforesaid. On 18-12-1996 the names of the appellants were published in the official gazette. On 23-12-1996 elections were proposed to be held to the post of President as per a notification issued on 23-12-1996 to be held on 31-12-1996. An application was filed by respondent No. 1 who is an elected councillor on 26-12-1996 intimating about the formation of the Front by the appellants and requesting the respondent No. 3 to disqualify the appellants on the ground of defection as set forth in Section 3(2) of the Maharashtra Local Authority Members Disqualification Act, 1986 (hereinafter referred to as "the Act" for brevity). An order was made by respondent No. 3 on 28-12-1996 rejecting the said application. A writ petition was preferred before the High Court challenging the decision of respondent No. 3 in rejecting the application filed by respondent No. 1.

(2.) On 23rd December, 1996, the Collector issued a notice convening a meeting to be held on 31st December, 1996 for electing the President of the council for which the Aghadi had sponsored appellant No. 4 as its candidate and respondent No. 1 had issued a whip to all its councillors to vote for the Aghadi candidate. In the meeting held on 31st December, 1996 respondent No. 4 was declared elected President for the year 1997-98. She secured 9 votes as against 8 votes secured by candidate who was defeated. In terms of Section 3(1) of the Act, the High Court took the view that councillors or members belonging to any political party, Aghadi shall be disqualified for being a councillor or a member if he voluntarily gives up his membership of such political party or Aghadi or front and, therefore. such Aghadi/front is placed at par with any political party in the same manner as giving up membership of parties attracts disqualification, similarly voluntarily giving up membership of an Aghadi or front would be a disqualification. The High Court also noticed that under Section 3 (1)(b) of the act a member of a political party, Aghadi or front had to cast votes at the meetings of local authorities as per the directions of the party. If a member or a councillor fails to comply with the party directions, he would incur disqualification. In particular it noticed Clause (a) of the Explanation that a person elected as a councillor shall be deemed to belong to the party, Aghadi or front, if any, by which he was set up as a candidate for election and the High Court concluded on that basis that each of the appellants 1 to 9 having contested as independent candidates and on being so elected they formed themselves into an Aghadi and, therefore they ceased to be independent councillors. Before electing the President, formed themselves into an Aghadi, and having chosen their leader and office bearers nominated a candidate for the presidential elections by issuing a whip calling upon its members to vote for that person and none else. They were covered by definition of Section 2(a) of the Act. The High Court was also of the view that appellants 1 to 9 are a group of persons who had formed themselves into a party, and the election of a President is also an election to the local authority. The High Court considered the argument advanced on behalf of the appellants that formation of Aghadi is not a case of joining a political party but one of constituting a political party or Aghadi and, therefore, could not incur disqualification. The High Court referred to the meaning of the expression "join" and took the view that this expression has a very wide connotation and includes constitution of a group by various individuals getting together for the purpose of forming an Aghadi. The appellants have united themselves to form the Aghadi and, therefore, they could be said to have joined Aghadi. The High Court drew a comparison of the provisions of the Act with the Tenth Schedule to the Constitution and while holding that the view taken by the Collector was not correct, quashed the said order and allowed the application declaring that the appellants incurred a disqualification as provided under Section 3(2) of the Act, and, therefore, ceased to be councillors of the Municipal Council. Hence this appeal by special leave.

(3.) On behalf of the appellants contention put forth is that the appellants had not joined the Aghadi to set up a candidate to an election to the local authority; that even though appellants formed a group loosely called an Aghadi or Front, it was not really an Aghadi/Front in terms of the Act in as much as it had not been formed for the purpose of setting up candidates for election to a local authority, that it is open to independently elected members to agree to cooperate for running efficiently the management of a local authority and for that purpose need not form a party. In particular they attack the finding of the High Court that the appellants had nominated respondent No. 4 as their candidate for the election of the President of the council, their joining the front would entail disqualification as election of the President in the view of the High Court is also an election to the local authority; that election to the local authority would not include an election to the post of a President of a council. Therefore, it was submitted that the High Court had misguided itself in not appreciating as to what constitutes a defection and the circumstances in which the nine appellants formed a group which was not an Aghadi as defined under the Act particularly when it had not set up candidates for election to only local authority.