AVINASH Vs. THE DIVISIONAL COMMISSIONER AND ORS.

JUDGEMENT

(1.) THIS writ petition filed under Articles 226 and 227 of the Constitution of India takes exception to the order dated 24 -7 -2014 passed by the respondent No. 1 declaring the petitioner to be disqualified from continuing as a Councillor of Amravati Municipal Corporation under provisions of Section 3(1)(a) of the Maharashtra Local Authority Members Disqualification Act, 1986 (for short the said Act).

(2.) IN the general elections for electing Councillors at the respondent No. 2 Corporation, about 87 Councilors were declared elected. The petitioner who was also elected as a Councillor was appointed as group leader of the Aghadi that was formed amongst two groups of Councillors. Said appointment was made on 17 -4 -2012. Subsequently, on 6 -6 -2014, the respondent No. 3 came to be appointed as group leader in place of the petitioner. This order came to be challenged by the petitioner in Writ Petition No. 2772/2014 which came to be allowed by this Court on 27 -8 -2014. Aforesaid order was subsequently confirmed in view of dismissal of the Special Leave Petition challenging said order. As a result thereof, the petitioner continued as group leader. On 7 -4 -2014, the respondent No. 3 filed a petition under Section 3(1)(a) of the said Act seeking disqualification of the petitioner on the ground that he had voluntarily given up membership of the National Congress Party on whose ticket he had been elected. The petitioner on 23 -4 -2014 filed preliminary objections to the tenability of the disqualification petition. On 7 -5 -2014, the respondent No. 3 filed reply to aforesaid preliminary objections. The proceedings were conducted on various dates and ultimately on 18 -7 -2014 as adjournment was refused to the petitioner. A pursis was passed stating that the petitioner be treated as heard on the preliminary objections. The respondent No. 1 on said date accepted the pursis and after deciding the preliminary objections also heard the proceedings on merits and closed the matter for orders. Ultimately, by order dated 24 -7 -2014, the petitioner came to be disqualified under provisions of Section 3(1)(b) of the said Act. It is this order which is the subject matter of challenge in the present writ petition.

(3.) SHRI S.M. Vaishnav, the learned Counsel appearing for the respondent No. 3 vehemently opposed aforesaid submissions. He submitted that the respondent No. 1 was justified in proceeding to decide the disqualification petition on 18 -7 -2014 as the petitioner had failed to file any reply to the disqualification petition. He further submitted that provisions of Rules 6 and 7 of the Rules of 1987 were directory in nature and hence, no right accrued in favour of the petitioner to urge that he was entitled for due opportunity. He further submitted that the petitioner was merely prolonging the proceedings and had raised frivolous preliminary objections. He submitted that there was sufficient material on record to hold that the petitioner had voluntarily given up membership of the political party and hence, the conclusion arrived at by the respondent No. 1 was legally sustainable. In support of said submissions, the learned Counsel for the respondent No. 3 relied upon the following judgments: