HARIHARRAO VISHWANATHRAO BHOSIKAR Vs. DATTA ANANDRAO PAWAR

JUDGEMENT

(1.) ALL the four Writ Petitions involve common question of law, though filed by different petitioners, can be disposed of by the this common judgment. All the petitions are filed under Articles 226 and 227 of the constitution of India, 1950 (for short "the constitution" ). The petitioners have challenged the action of the Collector, Nanded, taking the cognizance of the petitions filed under the Maharashtra Local Authority members (Disqualification), Act, 1987 (for short "the Act" ). For the convenience, I will note down the relevant facts in seriatim.

(2.) WRIT Petition No. 3962/2005 is filed by one Harihar Vishwanath Bhosikar, a sitting Member of Zilla Parishad, Nanded. He was elected to Z. P. Nanded from Bahadurpura zilla Parishad (Kandhar), Vibhag No. 8. He was sponsored by Nationalist Congress Party (tor short "ncp") and, was elected as such. After the elections, he continued to be a member of Zilla Parishad, Nanded. (for short "z. P. " ). The respondents 1 and 2 (hereinafter referred to as "the complainant") filed a petition seeking disqualification of the petitioner as a Member of Z. P. That application was filed under the Act, on the ground that the petitioner has violated the direction/whip issued by the District President of NCP, to withdraw his nomination from the maharashtra Assembly 175, Kandhar constituency. It was contended that the petitioner, on 21st September, 2004, has filed two nomination papers to context the assembly elections from the constituency. The two nomination forms which were submitted by him - one from NCP and another being an independent candidate. The complainant no. 2- Shankar (Anna) Ganeshrao Dhondage has also filed his nomination paper from Kandhar constituency from NCP party. It is contended that the Nanded District Committee of NCP has conveyed an emergency meeting under the presidentship of complainant no. 1 i. e. Datta anandrao Pawar, wherein it was resolved to direct the petitioner to withdraw his nomination from the assembly election. It is contended that in spite of the said direction (whip), he did not withdraw his candidature from the assembly election and contested the elections, thereby violating the whip/direction issued by nanded District Committee of NCP and, as such, it is contended that for non-obeying the whip, he has incurred disqualification, as provided under section 3 (1) (b) of the Act. With these allegations, the Disqualification petition was filed before the Collector, Nanded, on 11th October, 2004.

(3.) THE Disqualification Petition u/s. 3 of the Act, is to be presented/filed in the manner provided under rule 6 of the maharashtra Local Authority Members disqualification Rules, 1987 : (hereinafter referred to as "the Rules" ). According to the complainants, they have presented the petition, under the Rules. On presentation of the petition, the Collector, Nanded noticed the petitioner, vide notice dated 29th November, 2004 calling upon him to attend the hearing of the petition which was scheduled to be held on 7-12-2004 at 3. 00 p. m. before the Collector, nanded. The notice was accompanied by the copy of the petition. On receipt of the notice, the petitioner appeared and filed an application dated 7-12-2004 seeking an adjournment, on the ground that the complainants did not provide copies of the documents on which they have relied. It is stated that the notice was received on 4th December, 2004. On receipt of the application for adjournment, it appears that the proceedings were adjourned. The petitioner, on 16th February, 2005, submitted an application with a prayer that preliminary issue regarding tenability of the petition be framed before deciding the main petition. The application filed by the petitioner was objected to by the complainants by filling their reply dated 9th March, 2005. In their reply, they stated that the application for framing preliminary issue be rejected and the petitioner be directed to file written statement, instead of prolonging the matter on hearing of the preliminary issue. The Collector, Nanded, upon hearing the parties, opined that instead of giving any finding on the preliminary issue, the petition itself can be decided finally along with preliminary objection. Accordingly, the collector, Nanded, by his order dated 24th may, 2005, rejected the application filed by the petitioner. On rejection of the application by the Collector vide order dated 24th May, 2005 the petitioner approached this Court, by way of this petition.