SHANTABAI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) In all these petitions the petitioners who are the elected Councilors of the Municipal Council Bhusawal are raising exception to the order passed by the Collector, Jalgaon holding them disqualified to continue as the Councilors of the Municipal Council. Bhusawal. The orders are passed by the Collector on consideration of petitions tendered by one Mr. Manoj Biyani/respondent herein under the provisions of section 3 of the Maharashtra Local Authority Members Disqualification Act of 1986 (hereinafter referred to as 'Act of 1986') r/w. Rule 6 of the Maharashtra Local Authority Members' Disqualification Rules, 1987 (hereinafter referred to as "Rules of 1987").

(2.) Petitioners contend that in the general elections to the Municipal Council held in the month of October - November, 2006. the petitioners were declared elected on 21-11-2006 as independent candidates. The Election Commissioner published election results in official gazette declaring the petitioners to have been elected as the Councilors. It is specific contention of the petitioners that they are elected as independent candidate and the certificates issued by the Election Commission also declare that they have been elected to the Municipal Council as the independent candidates. There was a proposal for registration of Shahar Bachav Aghadi as municipal party in pursuance to the application presented by one Manoj Biyani/ respondent herein. However, according to the petitioners, said proposal was withdrawn by him on 22-11 -2006. It is denied by the petitioners that there was a pre-poll aghadi or that they are the members of any such Aghadi titled as "Shahar Bachav Aghadi". It is contended that said Aghadi has not been registered as a municipal party required under the provisions of the Act. After the general elections to the Bhusawal Municipal Council the elections to the President were held and one Madhuri Ealak was elected as the President who continued to occupy the post for about 2-1/2 years. Her term came to an end in the month of August, 2009 and the process for election of the successor President for remaining term of 2-1/2 years was initiated. It is contended that one Manoj Biyani claims himself to be the President of "Shahar Bachav Aghadi" which has membership of about 28 members, according to him, and he directed the members to vote in favour of his wife who was also a candidate at the elections of President. It is contended that in the meeting convened on 28-6-2009 the votes were recorded and during the process Smt. Sangita w/o Manoj Biyani secured 15 votes whereas her rival candidate belonging to Nationalist Congress Party Smt. Rekha Choudhari secured 30 votes and as such she was (Mrs. Rekha Choudhari) declared as elected. It is the contention of the petitioners that Mr. Manoj Biyani/respondent herein claiming himself to be the President of "Shahar Bachav Aghadi" and group leader of the municipal party, presented different applications to the Collector praying therein to hold the petitioners herein disqualified to continue as the Councillors of the Municipal Council. The petitioners in these petitions have seriously disputed formation of "Shahar Bachav Aghadi" which is a pre-poll Aghadi or formation of the municipal party for Bhusawal Municipal Council. It is also seriously disputed that respondent herein/Manoj Biyani to be the President/Group Leader of the municipal party and his entitlement to issue whip requiring the petitioners to cast vote in a particular manner. The petitioners have also denied to have received any communication in respect of issuance of whip nor the petitioners have been communicated in respect of setting of the candidature of Smt. Sangita Biyani for the post of the President. The petitioners contend that as they were not members of 'Shahar Bachav Aghadi', they cannot be held disqualified on account of disobeying whip allegedly issued by respondent Mr. Manoj Biyani nor the petitions claiming action against them at the instance of respondent herein is entertainable with the Collector. In addition to the aforesaid contentions the petitioners in Writ Petition Nos.9003/2010,9007/2010 and 8998/2010 have also raised grievance in respect of non-observance of principles of natural justice while deciding the matter by the Collector. It is the contention of the concerned petitioners that the Collector has not extended an opportunity of hearing to them a'nd without hearing the oral arguments proceeded to decide the matter. Thus, according to them, order passed by the Collector is liable to be set aside on the ground of non-observance of the principles of natural justice. The petitioner in Writ Petition No,9350/ 2010 has contended that he was not member of any pre-poll Aghadi and he contested the election as an independent candidate. He was never the member of Aghadi and as such proceedings in respect of his disqualification cannot be initiated at the instance of Mr. Manoj Biyani/respondent herein. It is also contended by petitioner in Writ Petition no. 9006/2010 that he was absent in the meeting and that no procedure is followed in respect of condonation of absentism as required under the Rules and as such the concerned Councillor cannot be meted with penalty of disqualification.

(3.) Contentions raised by the petitioners in the petitions have been disputed by respondent Manoj Biyani/applicant before the Collector. In the application presented before the Collector, it is contended by Mr. Manoj Biyani that Shahar Bachav Aghadi, Bhusawal is formed on 5-10-2006 i.e. prior to holding of elections of Municipal council Bhusawal. It is contended that tire petitioners are the candidates set up by the Aghadi for contesting the elections and necessary Forms AB were issued in favour of the concerned candidates and the concerned candidates presented nomination papers as a member of Shahar Bachav Aghadi. It is contended that at the elections to the Municipal Council, 28 Councillors of Shahar Bachav Aghadi got elected whereas only 19 Councillors belonging to Nationalist Congress Party were elected. It is also contended that on 21-11-2006 a meeting of the elected Councillors was held for the purpose of formation of the municipal party and one independent candidate i.e. Khan Salim Taslim also joined the Aghadi. Mr. Manoj Biyani being the President of the Aghadi submitted Form I prescribed under Rule 3(1 )(a) of the Rules of 1987 with the Collector on 21-11-2006. The concerned elected representatives also submitted declaration in Form in prescribed under Rule 4(1) of the Rules of 1987 with the District Collector. The Collector was thereafter pleased to register the information in Form IV prescribed under Rule 5(1) of the Rules of 1987. It is contended that in the year 2006 elections to the President were held and the candidate belonging to the Aghadi Smt. Madhuri Falak got elected and at relevant time whip was issued by Mr. Manoj Biyani which was honoured by the members and candidates belonging to the Aghadi were declared elected as President and Vice-President of the Municipal Council. After completion of the term of 2 1/2 years the candidature of Smt. Sangita Biyani was declared for the post of the President and the whip was duly issued in that regard to the petitioners from time to time. The whip was not only sent to the concerned Councillors by registered post AD and also under the certificate of posting but the same was also published in newspaper on 18-5-2009. 22-5-2009. 15-6-2009 and 20-6-2009. Inspite of issuance of the whip and having knowledge of the same, all the petitioners before this court dishonoured the directions and cast vote in favour of a candidate belonging to Nationalist Congress Party and as such have incurred disqualification within contemplation of provisions of section 3(l)(b) of the Disqualification Act of 1986. It is specifically contended that the illegal act of dis-obedience of the whip has not been condoned by applicant Mr. Biyani. Necessary documents supporting the contentions raised in the petition were presented before the Collector. The Collector after recording evidence of the parties came to the conclusion that the applicant has substantiated his case and all the petitioners herein have incurred disqualification and are liable to be declared as disqualified to hold the elected office of Councillors of Municipal Council and the Collector was pleased to issue order accordingly. So far as the candidate who has abstained from voting i.e. petitioner in Writ Petition No.9006/2010 is concerned, his absentism has not been condoned by the party and as such he is also held liable to be held disqualified. The candidate who joined the Aghadi after the elections i.e. petitioner in Writ Petition No.9350/2010 has also incurred disqualification as he was also bound to follow the whip/directives of the Aghadi.