Oral Judgment:
1. Rule returnable forthwith. Heard finally with the consent of learned Counsel for the respective parties.
2. Pursuant to order dt.15.7.2014 passed by this Court, this petition is heard finally in view of urgency pleaded. The petitioner is aggrieved by the order issued by the Collector, Yavatmal dt.31.12.2013 deleting the name of the petitioner from the post of 'Gat Neta' i.e. Group Leader and substituting the name of respondent no.4 Jafar Sadik Gilani, the co-opted Councilor of Municipal Council, Yavatmal instead of Shrikant @ Balasaheb M. Chaudhari. Hence, the petitioner has prayed for quashing the said order dt.31.12.2013 issued by the Collector, Yavatmal communicating the Chief Officer, Municipal Council, Yavatmal referring to the letter dated 31st December, 2013 from Wamanrao Kasawar, President, Indian National Congress Party, Yavatmal District. Thus, Office of the Collector, Yavatmal informed the Chief Officer of the Municipal Council, Yavatmal about the communication received from Wamanrao Kasawar; that the petitioner was suspended on account of anti party activities and therefore, in view of the Maharashtra Local Authority Members' Disqualification Act, 1986 and the Maharashtra Local Authority Members' Disqualification Rules, 1987 (hereinafter referred to as â the Act and the Rules â), the party decided unanimously to appoint Jafar Sadik Gilani/respondent no.4 as a group leader in Municipal Council, Yavatmal on behalf of the Indian National Congress Party. Thus, in view of Rule (3) of subrule (4) of the Act, information regarding change was communicated and the Collector, Yavatmal accordingly furnished the information regarding change of group leader on behalf of the Indian National Congress Party in the Municipal Council, Yavatmal to the Chief Officer of the Municipal Council, Yavatmal. This was done to enable the Municipal Council, Yavatmal to rectify its record so as to take note about the change communicated in respect of name of the group leader on behalf of the Indian National Congress Party.
3. It appears that the Yavatmal District Indian National Congress Party through its General Secretary Ashokrao Bobade had informed the Collector, Yavatmal District about Resolution No.1, dt.18.12.2011 whereby earlier petitioner Shrikant Balasaheb Chaudhary was appointed and the appointment was approved by Wamanrao Kasawar, President of the Yavatmal District Congress Committee. Later said Wamanrao Kasawar, by communication dt.23.8.2013, informed the Collector, Yavatmal District that appointment of the petitioner as a group leader was cancelled and in his place, on behalf of the Indian National Congress Party, Jafar Sadik Gilani is appointed. In view of this communication sent on 23.8.2013 vide Outward No.1722 of 2013 addressed to the Collector, Yavatmal along with copy of Resolution No.1, dt.23.8.2013 of the party, which was proposed by one Surekha Malvi and approved by Radhika Santosh Gorle, the Resolution was unanimously accepted. Thus, the Collector, Yavatmal had noted the change. The Collector had also noted protest by the petitioner dt.17.12.2013 and informed the Municipal Council, Yavatmal about the letter received from Wamanrao Kasawar, dt.23.8.2013 regarding appointment of Jafar Sadik Gilani as a party leader in the Municipal Council, Yavatmal. The Collector, Yavatmal was specifically requested to note by the President of Yavatmal District Congress Committee by communication dt.23.8.2013 that petitioner Shrikant Balasaheb M. Chaudhari was suspended on account of anti party activities and in his place, Jafar Sadik Gilani has been appointed as a group leader on behalf of the Indian National Congress Party in the Municipal Council, Yavatmal. Thus, apparently, it appears that since the President of Yavatmal District Congress Committee had informed the Collector, Yavatmal about change in the name of Group leader of the Indian National Congress party in the Municipal Council, Yavatmal, the petitioner questioned the order issued by the Collector, Yavatmal dt.31.12.2013 to delete the name of the petitioner from the post of Gat Neta (group leader) and to substitute the name of the petitioner by the name of Jafar Sadik Gilani (respondent no.4). The petitioner has questioned action of the Collector on the ground that, in the notification published on 30.8.2012, the name of the petitioner was shown as a group leader on behalf of the Indian National Congress Party and the action of the District President of the Indian National Congress Party in issuing the letter communicating that Jafar Sadik Gilani is appointed as a group leader on behalf of the Indian National Congress is assailed being unjust, contrary to law and without any legal sanctity.
4. According to the petitioner, the impugned order was in violation of principles of natural justice as the group leader was a coopted Councilor and not an elected Councilor and was not duly elected by people. Thus, the impugned order was assailed as against democratic policy and rationale of the Act and Rules there-under. According to the petitioner, mere communication by the District President of the Indian National Congress Party was not sufficient to effect change in the name of group leader on behalf of the party.
5. On behalf of the respondent, it is contended that earlier, on 18.12.2011, by Resolution No.1, the petitioner was appointed as a group leader and his appointment was approved by Wamanrao Kasawar as a President of the Yavatmal District Congress Committee, who was empowered under the Act and Rules framed there-under to issue the order through General Secretary of Yavatmal District Indian National Congress pursuant to communication dt.27.12.2011. Accordingly, the petitioner was appointed as a group leader by the Indian National Congress, Yavatmal District. Wamanrao Kasawar in his capacity as a President of the District Congress Committee of Yavatmal District informed the Collector, Yavatmal by communication Outward No.1722 of 2013 that appointment of the petitioner as a group leader was cancelled and in his place, respondent no.4 Jafar Sadik Gilani was appointed as a group leader in the Municipal Council, Yavatmal on behalf of the Indian National Congress Party. Copy of the letter which was unanimously approved by the General Secretary of Yavatmal District Congress Committee was also accompanied with the communication to the Collector. Accordingly, the Collector, Yavatmal by communication dt.23.8.2013 issued to the Chief Officer, Municipal Council, Yavatmal informed about change in the appointment of the group leader. This is how the petitioner entered into communication with the Collector, Yavatmal lodging protest regarding appointment of Jaffar Sadik Gilani as a group leader branding such an activity as illegal, unjust andcontrary to law.
6. Mr. S.M. Vaishnav, learned Counsel for the petitioner assailed the impugned order as bad in law on the ground that respondent no.4 was a nominated Councilor and not an elected Councilor and his appointment could not have been considered as representation of people. Therefore, he submitted that the order is needed to be quashed. Learned Counsel for the petitioner contended that a group leader has to be appointed by the Councilors of party concerned at the level of Municipal Council.
7. On behalf of the petitioner, Rule 2(b1)( i) of the Act i.e. definition of 'Leader' is pointed out. Leader in relation to a Municipal party means a Councilor chosen by each political party or aghadi or front in the Municipal Corporation or as the case may be in the Municipal Council as its leader and includes any other Councilor of such party or aghadi or front authorized by it to act in the absence of the leader as, or discharge the functions of the leader of such party or aghadi or front for the purposes of these rules. Thus, the definition of 'leader' in relation to Municipal Party is exhaustive as it explains that Councilor concerned must have been chosen by the political party concerned. Such Leader may also include a person who may be authorised to represent party in Municipal Council so as to act as a leader in the absence of the earlier leader so as to discharge function of the leader of party for the purposes of Rules.
8. Learned Counsel on behalf of the respondents also relied upon the same provision and submitted that it has to be read along with Rule (3), sub-rule (4) of the Act and Rules to indicate that, when any change takes place, it has to be communicated within 30 days of such change or within the period if extended by the Collector. On behalf of respondent no.4, it is submitted that an information is required to be submitted within time by the leader of the party to the Collector concerned i.e. Collector of Yavatmal district in this case. According to Mr. M.P. Khajanchi, learned Counsel for respondent no.4, the petitioner has no locus standi to challenge the communication made to the Collector regarding decision of the party for change of group leader on behalf of the Indian National Congress Party in the Municipal Council, Yavatmal. It is submitted that the Collector is informed so as to enable him to note the change and inform the Municipal Council, Yavatmal regarding change of the group leader.
9. Learned Counsel for the petitioner, in order to support his submissions, relied upon the ruling in the case of Sahebrao Narayan Kharat and another vs. Collector, Jalna and Others reported in 2011 (4) Bom.C.R 354. In that case, the petitioner had challenged the judgment delivered by the Collector in proceeding No.1989 on 31.1.2011 declaring the petitioners as disqualified under the provisions of the Act. The challenge was in respect of an order to disqualify passed by the Collector. This Court, in the facts and circumstances of that case, held that the group leader is required to be elected by all Nationalist Congress Party Ward members elected to the Municipal Council from amongst themselves and then the District President has to give his approval for that election. Thus, in the facts and circumstances of that case, it was held that the elected person can become group leader and therefore, the impugned order in that case passed by the Collector was quashed and set aside. It must be noted that, in that case, there was declaration to disqualify the petitioners therein issued by the Collector. Facts of Sahebrao's case are, therefore, distinguishable with case in hand.
10. Another ruling which is referred to is in the case of Abdul Sajed s/o. Abdul Sattar vs. State of Maharashtra and Others (Writ Petition No.3683 of 2011), wherein the Division Bench of this Court at Aurangabad was dealing with the issues as follows :
1. Whether the State Government has any right to direct the Mayor of a Corporation to accept a particular person as the leader of an Aghadi or Front ?
2. Whether a person who is elected as a leader of a Aghadi or Front in a local authority, can continue to act as such, till his term as a councillor comes to an end?
11. The view expressed by the Division Bench of this Court in para 26 of the ruling is that a person who has been elected to a particular post cannot be removed from that post, unless the Statute under which he is elected specifically provides for such a step to be taken. In that case, it was found from the facts that no provision of law was pointed out to indicate as to how a leader of aghadi once chosen and treated as such both under the Act, as well as the BPMC Act can be removed as no rules were framed by aghadi in this regard. In para 30, the view expressed by the Division Bench of this Court is that Government has no role to play in recognition of leader of the aghadi or the leader of opposition, as already noted.
12. On behalf of respondent no.4, reference is made to the ruling in the case of Sadashiv H. Patil .vs. Vithal D. Teke and Others reported in 2000 (8) SCC 82. A Three Judge Bench of the Supreme Court was considering the provisions of the Act.. The Apex Court in para 8 discussed the manner in which the evidence of formation of Municipal party comes into existence and noted that any doubts or disputes relating to formation of a particular Municipal party and members thereof along with reasonable particulars furnished, filed, notified and entered in the register are ruled out. In that case, the question about legality of the whip having been issued by the political party was under consideration. The Apex Court dismissed the appeals on the ground that whip did not suffer from any illegality or deficiency.
13. Reference is also made to the ruling in the case of Kiran s/o. Narhari Wattamwar and another vs. The Collector, Nanded and Others reported in 2013 (1) ALL MR 260, wherein this Court with reference to rule (3) was considering the submission that duty is cast on every Council to furnish to the Collector within 30 days the statement of particulars and declaration in Form III. Declaration tendered to the Collector about the leader of the party in Municipal Council concerned was considered. The ruling relied upon on behalf of the petitioner in the case of Sahebrao Narayan Kharat and another (cited supra) was also considered apart from the ruling in the case of Sadashiv H. Patil (cited supra), in which the Apex Court held that, in absence of any authorisation to sign the whip on behalf of the party, provisions of Section 3(1)(b) are not attracted and no disciplinary action can be taken against the members. Following observations were made in para 8 in the case of Sadashiv H. Patil (cited supra).
âIn the appeals before us we are required to deal with an aghadi or front relating to municipal council. We would therefore analyse the provisions of the Act from the angle of municipal council leaving aside municipal corporation, zilla Parishad or panchayat samiti. In the scheme of the Act, it is clear that the formation of an aghadi or front by a group of persons must precede the election to a local authority. The politicolegal doctrine of disqualification by defection has been percolated to the elections of local authorities in Maharashtra by enacting the Act. The Act proposes to encourage the elections being fought by group of persons bringing themselves together so as to have a common purpose and by contesting election on a common symbol propagating the principles and purpose with which that group proposes to administer the local authority if returned to power by the electorate. Such group of persons having a common ideology though no necessarily belonging to a political party of State or national level may form themselves into a party, the immediate purpose whereof is to set up candidates for election to the local authority. The collective name assigned to such group of persons is an aghadi or front. On the elections being accomplished, a municipal council comes into existence which includes elected councilors belonging to any political party, aghadi, or front. Once a candidate set up by a political party, aghadi or front is declared elected he shall be fictionally deemed to be belonging to the political party or aghadi or front by which he was set up as a candidate at the elections. He has no option in the matter. The elected councilors of a particular political party, aghadi or front constitute a municipal party identified with any political party or aghadi or front by which the candidature of such councilors was sponsored. The municipal party gets a statutory recognition. Rule 3 contemplates a leader of such municipal party being elected or appointed who shall furnish within 30 days from the date of its formation a statement in writing in Form I being filed with the Collector wherein the names of members of such party (which means a municipal party) shall be mentioned. The statement shall also mention the names and designation of the members of such party authorised to communicate with the Collector. A copy of the rules and regulations (whether known as such or a constitution or by any other name) of the municipal party and of the parent party, aghadi or front are to be filled, with the Collector. There is a system of crosscheck provided by the Rules. Not only a statement by the leader of municipal party is to be filed under Rule 3(1)(a), every councilor in relation to municipal party shall, before he has taken his seat, furnish a statement of particulars and declaration in Form III. The information so furnished shall be published in the Maharashtra Government Gazette and subject to rectification of such discrepancy as may be pointed out and necessary corrigendum if necessary being published in the Gazette, the information shall be maintained in the records of the Collector in a register in Form IV under Rule 5. In this manner, the evidence of formation of a municipal party comes into existence and any doubts or disputes relating to formation of a particular municipal party, and the members thereof along with the requisite particulars furnished, filed, notified and entered in the register are ruled out. â
14. The object of informing the Collector is to ensure that limitation provided for laying down such information within 30 days from the date of formation of municipal party is communicated so that if time limit is not observed, the Collector may, within the extended time, permit such communication to be made.
15. The submission that a Councilor has to be elected by the Councilors and mere nomination by the District President of Indian National Congress Party was not sufficient, is not acceptable in view of rule which clearly gives exhaustive meaning to the leader in relation to Municipal party. Rule 2(bc)( i) gives exhaustive meaning to the leader of Municipal party. He may be a Councilor chosen by a political party in the Municipal Corporation or Municipal Council and includes any other Councilor of such party to discharge function of leader of such party for the purpose of the Act. Thus, there is no prohibition for the political party concerned to appoint or authorise leader of such party for the purposes of Act and Rules.
16. Coming back to the facts and circumstances of the present case, the communication reflected that President of Indian National Congress Party namely Wamanrao Kasawar, who had earlier approved appointment of the petitioner as a group leader in Municipal Council, Yavatmal, had informed the Collector of Yavatmal about the fact that the petitioner was suspended on account of antiparty activities and therefore, respondent no.4 Jaffar Sadik Gilani was appointed on behalf of the Indian National Congress Party to represent party as a group leader in Municipal Council, Yavatmal. If at all the petitioner is aggrieved by the action taken by his own political party to change him as leader in Municipal Council on behalf of the party; he could have approached the President of the political party to raise his grievances, if any, for substituting him as a group leader by another Councilor. It is not in dispute that Wamanrao Kasawar, who, as a President of the Yavatmal District Congress Committee, had informed about appointment of petitioner, had informed about change in the name of the group leader so as to enable the Collector of Yavatmal to note the information and act according to law. The Collector, in the present case, had limited role to play i.e. to note the change informed by the political party concerned and to act according to law and had no business to sit over the decision of the Indian National Congress Party who changed its group leader which was unanimous decision of the political party concerned. That being so, the action taken on behalf of the Collector, Yavatmal to inform the Chief Officer of the Municipal Council, Yavatmal about the fact that the petitioner was suspended on account of his anti party activities and that he has been substituted by Jafar Sadik Gilani to represent the political party as a group leader on behalf of it in the Municipal Council, Yavatmal, was only to enable the Municipal Council concerned act upon information and to rectify its record and not beyond that. Therefore, the petitioner, to my mind, cannot question the communication made from the Collector's Office, Yavatmal to the Chief Officer, Municipal Council, Yavatmal. I do not find any fault with the impugned communication as it is nothing but mere intimation on behalf of Collector's Office, Yavatmal about the change which has been informed by Wamanrao Kasawar, President of Yavatmal District Congress Committee. Substitution of the petitioner by respondent no.4 was pursuant to unanimous decision by the Yavatmal District Congress Committee and role of the Collector was only to note about the change informed and to communicate it to the Municipal Council, Yavatmal and not beyond that. That being so, the petition is without any merits. Hence, the petition is dismissed. Rule is discharged. No order as to costs.
17. Mr. S.M. Vaishnav, learned Counsel for the petitioner prays for grating stay to operation of this order, which is strongly objected on behalf of the respondent. Considering the request so made and the reasons given there-for, I do not find any good ground for staying of this order. Hence, the request is rejected.