1 Heard learned Counsel for the petitioners.
Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for respective parties.
2 Petitioners in both the petitions are elected councillors of Municipal Council, Loha, District Nanded. Petitioners are declared disqualified to continue as Councillors of the Municipal Council for remainder term by the District Collector, Nanded on 18.02.2012 on consideration of Disqualification Petition No.49/2011 presented by Respondent No.3 – Gajanan Subhashrao Suryawanshi under Section 3(1) (a) and (b) of the Maharashtra Local Authority Members Disqualification Act, 1986 and under Rule 6 of the Maharashtra Local Authority Members Disqualification Rules, 1987.
3 The General Elections to Loha Municipal Council were held in the month of November 2008 and in all 17 Councillors are declared to be elected including the petitioners. The petitioners belong to Congress (I) political party. There are six members belonging to Congress (I) party elected as Councillors of Municipal Council, Loha. After the General Elections in the year 2008, the President of the Municipal Council, belonging to Congress (I) party, was elected for the term of two and half years. Respondent No.3 – Gajanan Suryawanshi was elected as Vice President.
4 After completion of term of two years, there arose fractional feud amongst elected members of Congress (I) party. Petitioner No.1 Kiran Narhari Wattamwar (in W.P. No.1875 of 2012) claims that he has been elected as Gat Neta / group lea er of their Muncipal party. The election of Gat Neta/group leader, according to petitioner no.1 Kiran Wattamwar (in W.P. No.1875/2012) was held in the meeting dated 03.03.2010. The meeting was convened for nomination of Members for Subject Committees of the Municipal Council wherein, it is alleged that, petitioner no.1 – Kiran is elected as Gat Neta / party leader in Municipal Council. Respondent No.3 – Gajanan Suryawanshi also claims that he is a Gat Neta of Congress (I) Municipal Party and his nomination has been approved by all the elected councillors belonging to Congress (I) party. Respondent No.3 – Gajanan Suryawanshi also contends that he has been functioning as party leader since after the General Elections.
5 On 3rd June, 2011, District Collector, Nanded, issued notice convening meeting for election of President and Vice President of Municipal Council Loha for the next term of two and half years. Petitioner No.1 in W.P. No.1875/2012 – Kiran Wattamwar presented his nomination paper for the post of President, whereas, Respondent No.3 – Gajanan Suryawanshi, according to whom, he was nominated by the Party President to contest election for the post of President of Municipal Council. According to Respondent No.3 – Gajanan Suryawanshi, District President of Congress (I) Party – Shri B.R.Kadam had issued whip on 15.06.2011 directing the councillors to vote in favour of party nominee and said whip was allegedly served on all the petitioners. The panchanama was drawn in respect of service of whip and whip was pasted on the door of residences of respective petitioners. The meeting to elect President and Vice President was held on 17.06.2011 and petitioner no.1 – Kiran Wattamwar (in W.P. No.1875/2012), has been elected as President with majority. The petitioners in both the petitions, except Smt.Shobabai Bagade, cast vote in favour of petitioner no.1 – Kiran Wattamwar, violating the directives issued by the party. Smt.Shobhahai did not attend the meeting.
6 According to Respondent No.3 – Gajanan Suryawanshi, he, after securing permission from the Party President, proceeded to file Disqualification Petition with the District Collector, Nanded, requesting for a declaration that the petitioners herein stand disqualified for continuing as Councillors for the remainder term. Petitioners herein resisted the petition presented before the Collector by filing their reply.
7 The learned District Collector, after recording evidence of the parties, allowed the Disqualification Petition presented by Respondent No.3 – Gajanan Suryawanshi and declared the petitioners disqualified for continuing as Councillors of Municipal Council, Loha.
8 At the first instance, it is contended by petitioners that Respondent No.3 – Gajanan Suryawanshi is not at all elected as Gat Neta / Group leader of Congress (I) Municipal party. It is the contention of petitioner no.1 – Kiran Wattamwar that in the meeting dated 03.03.2010, he has been declared as elected as party leader / Gat Neta. The second contention raised by the petitioners is that neither Shri Kadam, District President of Congress (I) Party nor Respondent No.3 – Gajanan Suryawanshi have authorisation to issue whip nor whip has been served on the petitioners. The panchanamas in respect of service of whip are fabricated. Petitioner No.1 – Kiran Wattamwar (in W.P. No.1875/2012) specifically denies receipt of packet containing letter dated 10.06.2011 issued by the Party President or any letter issued by Respondent No.3 – Gajanan Suryawanshi and also further denies to have refused to accept any packet containing the letter. According to the petitioners, no whip has been issued, as alleged, nor same has been served on the petitioners. The documents placed on record, referred to as ‘whip’ by the applicant before the Collector, are fabricated one. According to the petitioners, the Collector has passed the order without application of mind to the record of the case and overlooking the law laid down by the Supreme Court.
9 The Respondents contend that Respondent No.3 – Gajanan Suryawanshi has been functioning as Gat Neta / party leader since holding of General Elections. It has been contended that the District President and the Party leader are empowered to issue whip and same has been issued validly. Since petitioners have refused to accept the same, panchanamas in respect of service have been drawn. It is contended that it would suffice the purpose if it is brought to the notice that whip has been validly issued and put into circulation and petitioners have voted in favour of a candidate against the party directives and are, therefore, liable to be declared disqualified. It is the contention of the Respondents that petitioner no.1 – Kiran Wattamwar (in W.P. No. 1875/2012), who has presented his nomination paper for the post of President, by his conduct, has violated the party discipline and has also breached the directives issued by the party and as such, is liable to be declared disqualified.
10 Petitioners seriously object to the claim of Respondent No.3 – Gajanan Suryawanshi that he is a party leader / Gat Neta in the Municipal Council. According to petitioners, petitioner no.1 – Kiran Wattamwar has been elected as Gat Neta in the meeting dated 03.03.2010. My attention is invited to the proceedings of the meeting of the Municipal Council dated 03.03.2010. The meeting was convened for constituting Subject Committees. The business in respect of election of the party leader is not expected to be transacted in the said meeting. There is absolutely no evidence that petitioner no.1 – Kiran Wattamwar has, since the General Elections of the Municipal Council in the year 2008, acted at any point of time, as Gat Neta / party leader. However, so far as recognition of Respondent No.3 – Gajanan Suryawanshi as Gat Neta / party leader in the Muncipal Council is concerned, there is abundant evidence that since 2008 onwards, he has been recognised as party leader. It would be beneficial to refer to some of the provisions of the Maharashtra Local Authority Members Disqualification Act, 1986. Section 2 (h)(i) defines “municipal party” in relation to the Councillor belonging to any political party or aghadior front in accordance with the Explanation to Section 3, means–
“(ii) in the case of a councillor of a Municipal Council, the group consisting of all the councillors of the Municipal Council for the time being belonging to that political party or aghadior front in accordance with the said Explanation.”
11 “Original political party” is defined, in relation to a councilor or a member, means the political party to which he belongs for the purposes of subsection (1) of Section 3. So far as petitioners are concerned, they belong to Congress (I) party, which is a “original political party”, by which party, they were set up as candidates for election to the Municipal Council. Rules 3 and 4 of the Maharashtra Local Authority Members Disqualification Rules , 1987, read thus:
“3 Information to be furnished by a leader of a Party – (1) The leader of each municipal party or a Zilla Parishad in relation to a councillor and the leader of Panchayat Samiti in relation to a member (other than a municipal party or a Zilla Parishad party or a Panchayat Samiti party consisting of only one member) shall, within thirty days from the date of commencement of these rules or, where such party is formed after such date, within thirty days from the date of its formation, or in either case, within such further period as the Commissioner, in the case of a councillor of a Municipal Corporation, or the Collector, in the case of any other Councillor or member may for sufficient reason allow, furnish the following information to the Commissioner, or as the case may be, to the Collector, namely:-
(a) a statement in writing containing the names of members of such party together with other relevant particulars regarding such members as prescribed in Form I and the names and designations of the members of such party who have been authorised by it for communicating with the Commissioner or, as the case may be, Collector for the purposes of these rules;
(b) a copy of the rules and regulations (whether known as such or a Constitution or by any other name), of the municipal party, Zilla Parishad party or the Panchayat Samiti party concerned, as the case may be; and
(c) where such party has any separate set of rules and regulation (whether known as such or as constitution or/by any other name) also a copy of such rules and regulations. (2) Where a municipal party or a Zilla Parishad party in relation to a councillor and a Panchayat Samiti party in relation to a member, consists of only one member then such member shall furnish a copy of the rules and regulations mentioned in clause (b) of sub-rule (1) to the Commissioner or, as the case may be, Collector within thirty days from the date of commencement of these rules or, where he has become a councillor of the Municipal Corporation, Municipal Council, Zilla Parishad or as the case may be, a member of the Panchayat Samiti after such date, within thirty days from the date on which he has taken his seat in the Municipal Corporation, Municipal Council, Zilla Parishad, or as the case may be, Panchayat Samiti, or in any case, within such further period as the Commissioner or, as the case may be, Collector may for sufficient reason allow.
(3) In the event of any increase in the strength of a municipal party or a Zilla Parishad party in relation to a councillor and the Panchayat Samiti party in relation to a member, consisting of only one member, the provisions of sub-rule (1) shall apply in relation to such party as if such party had been formed on the first date on which its strength increased.
(4) Whenever any change takes place in the information furnished by the leader of a municipal party or a Zilla Parishad party, in relation to a Councillor and by the leader of a Panchayat Samiti party, in relation to a member under sub-rule (1) or by a member under sub-rule (2), he shall as soon as may be thereafter and in any case not later than thirty days from the date on which such change has taken place or within such further period as the Commissioner, or, as the case may be, Collector may for sufficient reasons allow, furnish in writing the information with respect to such change to the Commissioner or, as the case may be, Collector.
(5) Where a councillor in relation to a municipal party or a Zilla Parishad party and a member in relation to a Panchayat Samiti party votes or abstains from voting in any of the meetings of the Municipal Corporation, Municipal Council, Zilla Parishad or, as the case may be, Panchayat Samiti contrary to any direction issued by the political party or aghadior front to which he belongs or by any person or authority authorised by it in this behalf, without obtaining in either case, the prior permission of such party, person or authority, the leader of such municipal party or Zilla Parishad party or as the case may be, Panchayat Samiti party, or where such Councillor or member is the leader or, as the case may be, the sole member of such municipal party, Zilla Parishad party or Panchayat Samiti party, such councillor or, as the case may be, member, shall as soon as may be thereafter and in any case within thirty days from the date of such voting or abstention, inform the Commissioner or, as the case may be, the Collector in Form II whether such voting or abstention has or has not been condoned by such party, person or authority.
4 Information etc. to be furnished by Councillor or member: -
(1) (a) Every councillor in relation to a municipal party or Zilla Parishad party and a member in relation to a Panchayat Samiti party who is holding office as such on the commencement of the Act in the Municipal Corporation, Municipal Council, Zilla Parishad or, as the case may be, Panchayat Samiti shall furnish to the Collector within thirty days from the date of commencement of these rules or within such further period as the Commissioner or, as the case may be, the Collector may for sufficient reason allow, a statement of particulars and declaration in Form III.
(b) Every Councillor in relation to a municipal party or a Zilla Parishad party and a member in relation to a Panchayat Samiti party after the commencement of the Act who is elected to the Municipal Corporation, Municipal Council, Zilla Parishad or, as the case may be, Panchayat Samiti before taking his seat, shall be furnished to the Commissioner, or, as the case may be,
Explanation 1:- For the purpose of this sub-rule “Councillor” in relation to a Municipal Party or a Zilla Parishad party and “member” in relation to a Panchayat Samiti party means a Councillor or member belonging to such political party or aghadior front, which has set up his candidature for the election of Municipal Corporation, Municipal Council, Zilla Parishad or as the case may be, the Panchayat Samiti.
Explanation 2:- For the purpose of this sub-rule, the Commissioner or as the case may be, the Collector, after the expiry of the date prescribed for the statement of the particulars and the declaration in Form III may decide as and when need arises about the affiliation of the political party or aghadior front of the councillor, or as the case may be the Member on the basis of the election symbol allotted to him at the time of his election.
Explanation [(3):- For the purpose of this sub-rule, if a Councillor is elected as a nominee of a particular political party or aghadior front in Zilla Parishad, he will automatically be considered as a nominee of the same political party or aghadior front in Panchayat Samiti; as each Councillor who is elected on Zilla Parishad is a member of Panchayat Samiti.]
(2) Every councillor in relation to a municipal party and a Zilla Parishad party and member in relation to a Panchayat Samiti party who takes his seat in the Municipal Corporation, Municipal Council, Zilla Parishad or as the case may be, in Panchayat Samiti, after the commencement of these rules shall, before taking his seat in the municipal corporation, municipal council, Zilla Parishad or as the case may be, Panchayat Samiti, deposit with the Commissioner, or, as the case may be, Collector, his election certificate, or as the case may be, a certified copy of the notification nominating him as a member and also furnish to him a statement of particulars and declaration in Form III.
Explanation:- For the purposes of this sub-rule, “election certificate” means the certificate of election issued under the Bombay Municipal Corporation Act (Bom III of 1888), the Bombay Provincial Municipal Corporation Act, 1949 (Bom. LIX of 1949), the Maharashtra Municipalities Act, 1965 (Mah. XL of 19650, the City of Nagpur Corporation Act, 1948 (C.P. and Berar II of 1950), the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 (Mah. V of 1962) and the rules made thereunder.
(3) A summary of the information furnished by the councillor in relation to a Municipal party and a Zilla Parishad party and member in relation to a Panchayat Samiti party, under this rule shall be published in the Maharashtra Government Gazette and if any discrepancy therein, is pointed out to the satisfaction of the Commissioner, or, as the case may be, Collector necessary corrigendum shall be published in the said Gazette.
12 On perusal of the Rules, it would transpire that in view of Rule 3, leader of each Municipal Council shall, within thirty days from the date of its formation, furnish a statement in writing containing names of members of such party together with other relevant particulars regarding such members as prescribed in Form I, and the names and designations of the members of such party who have been authorised by it for communicating with the Commissioner or, as the case may be, Collector, for the purposes of these rules. A duty is cast on every Councillor also to furnish to the Collector, within thirty days, a statement of particulars and declaration in Form III. In the instant matter, District President of Congress (I) party, informed the Collector on 17.12.2008. that Respondent No.3 – Gajanan Suryawanshi has been nominated (“HINDI”) as group leader or Gat Neta. Respondent No.3 – Gajanan Suryawanshi has also presented requisite information as required by Rule 3(1)(a) of the Rules to the Collector. The Collector also issued communication on 14.12.2008 to Gajanan Suryawanshi to furnish necessary information with the Collector and in compliance with that communication, Respondent No.3 – Gajanan Suryawanshi has furnished necessary information with the Collector. The newly elected members have also tendered information in Form-III. The information furnished to the Collector in Form – I and in Form – III, narrated on a single sheet of paper, bear signature/s of Shri Suryawanshi as leader of the party and of each of the member including all the petitioners as elected members. Apart from furnishing information along with Shri Suryawanshi recognizing him as leader of the party, each of the petitioner has also presented a declaration with the Collector. Petitioners herein have tendered a declaration informing the Collector that except being a member of the Municipal Council, each of them do not hold any office of profit or post. So far as Respondent No.3 – Gajanan Suryawanshi is concerned, he has also tendered a declaration with the Collector and has declared that apart from being a member of the Municipal Council, he is also leader of the party and Vice President of the Municipal Council. The record annexed to the petition pertaining to the year 2008 demonstrates that Shri Suryawanshi has acted as leader of the municipal party and his being a leader, has been all the while accepted by the members belonging to Congress (I) party including petitioners. The contentions raised by petitioners that Shri Suryawanshi cannot represent as group leader is unacceptable.
13 The petitioners have contended that the group leader is necessarily required to be elected amongst the elected members of the Municipal Council and Shri Suryawanshi has been nominated by the President and was never elected by members of Congress (I) party. In this context, my attention is invited to the observations made by the learned Single Judge in the matter of SahebraoNarayan Kharat and another Vs. Collector, Jalna and others, reported in 2011 (4) Bom.C.R. 354. The learned Single Judge, in the reported matter, on consideration of Constitution of Ambad Municipal Council and on consideration of Rules, concluded that the group leader shall necessarily will have to be elected from amongst the members. It is observed in para 38 of the judgment that Rule 2(b1)(i) define the phrase group leader in relation to municipal council to mean Councillor chosen by such political party. Looking to the Marathi version of the Rules, it has been concluded that for English word “chosen”, the words used in Marathi is “elected” (“HINDI”). The Constitution of Ambad Municipal Council also provides for election of the leader. In the facts of the case in the reported matter, a conclusion was drawn that as leader of the party was not elected and as such, had no authority. In the instant matter, however, Respondent No.3 – Gajanan Suryawanshi has tendered all necessary declarations in consonance with Rules 3 and 4 of the Rules. Petitioners herein have also approved Respondent No.3 – Gajanan Suryawanshi as a leader which is evident from the declarations presented with the Collector by each of the individual members. The declarations in Form-I and Form-III are presented on one sheet of paper which bears signature of Shri Suryawanshi as group leader. Petitioners herein have never raised a dispute as regards Shri Suryawanshi’s status as group leader. The contention raised by petitioner no.1 – Kiran Wattamwar that he is elected as group leader in the year 2010 cannot be accepted for the reason that the meeting, in which he is stated to have been declared as elected, was convened for the purposes of formation of Subject Committees of the Municipal Council and there was no question of transaction of any business in respect of election of group leader.
14 One more instance needs to be taken into consideration at this stage which supports the case of Respondents that Shri Suryawanshi has, all the while, acted as group leader. In the year 2010, the Municipal Council was required to co-opt a member. With a view to facilitate co-option, leader of the Municipal party was supposed to suggest name of the candidate for co-opting him as a member. Shri Suryawanshi proposed name of one Shaikh Ajmoddin, which was accepted and said member was co-opted. Whereas, name suggested by petitioner no.1 – Kiran Wattamwar that of Sow. Rahibai was turned down for the reason that Shri Wattamwar is not leader of the municipal party. The argument advanced by the petitioners that Shri Suryawanshi cannot be recognized as Gat Neta / leader of the municipal party is devoid of substance and stands rejected.
15 The second objection raised by the petitioners that neither Shri Kadam, President of the District Congress (I) party nor Shri Suryawanshi, had authorization to issue whip, needs to be considered. It is the case of Respondent-Gajanan Suryawanshi, as appearing from the contents of para 5 of the Disqualification Petition presented before the Collector, that:
“5 ..... Such whip dated 15-6-2011 is issued and served on respondent No.1 to 4 by petitioner himself and also as per the party President whip dated 1-6-2011 served on respondent by making the Inkari panchanama on denial by the respondent dated 16-6-2011 by affixing it the copy of whip on the door of respondent No.1 to 4 in the presence of panchas by petitioner.”
(underline supplied)”
16 According to Shri Suryawanshi petitioner before the Collector, whip dated 15.06.2011 and whip dated 10.06.2011 were served on the members. The communication dated 10.06.2011 is issued by Shri B.R.Kadam, District Party President to Shri Gajanan Suryawanshi, leader of the party. It has been informed to Shri Suryawanshi that he is selected as nominee for the post of President by the party and hat he shall tender his nomination paper and it was further instructed to bring this fact to the notice of other members. On perusal of communication dated 10.06.2011, there does not appear to be any directive issued to members of the party to cast vote in favour of party nominee. The letter dated 10.06.2011, issued by the President bears Outward No.104/11, whereas, the alleged whip dated 15.06.2011, issued by the District President of Congress (I) party, bears Outward No.103/11. The communication dated 15.06.2011, which is stated to be a whip, issued to each of the party members, contains a directive to the members to attend the special meeting of the Municipal Council dated 17.06.2011 at 11.00 a.m. and cast vote in favour of Shri Gajanan Suryawanshi. There is also another directive / whip placed on record bearing date 16.06.2011. The alleged whip dated 16.06.2011 bears signature of Shri Suryawanshi and the same appears to have been issued to all the members of Congress (I) party. The panchanama drawn by Shri Suryawanshi in respect of service of whip does not contain particulars as to which of the three communications, either dated 10.06.2011, 15.06.2011 or 16.06.2011, were tried to be served. However, from the pleadings contained in the application, it is clear that what was tried to be served upon the petitioners was communications dated 15.06.2011 and 10.06.2011. The letter issued by the President on 10.06.2011 does not contain any directive and, therefore, cannot be branded as whip / party directive. There is no material on record to demonstrate that communication dated 16.06.2011 addressed by Shri Suryawanshi was tried to be served on the petitioners and in the absence of pleadings in the application in that behalf, it cannot be permitted to be contended that the directive dated 16.06.2011 issued by the party leader was tried to be served on the petitioners. A grievance has been made that in the absence of examination of the pancha witness or scribe of the panchanama, it cannot be concluded that panchanama in respect of service of party directive / whip has been proved. It is true that neither any of the pancha witnesses nor scribe of the panchanama has been examined to prove the contentions in respect of service of whip / party directive or its denial by each of the members.
17 It has been vehemently contended by the petitioners, relying upon the judgment of the Supreme Court in the matter of SadashivH. Patil Vs. Vithal D. Teke and others, reported in 2000 (Supp.) Bom.C.R. 829, that in the 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. In paragraph 8 of the judgment, it is observed by the Supreme Court, thus:
“8 ....... On the elections being accomplished, a Municipal Council comes into existence which includes elected councillors 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 councillors 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 councillors was sponsored. The Municipal party gets 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 where the names of members of such party (which means a Municipal Party) shall be mentioned.”
(underline supplied)
18 In paragraphs 14 and 15 of the judgment, the Supreme Court has observed thus:
“14 A finding as to disqualification under the Act has the effect of unseating a person from an elected office held by him pursuant to his victory at the polls in accordance with the democratic procedure of constituting a local authority. The consequences befall not only him as an individual but also the constituency represented by him which would cease to be represented on account of his having been disqualified. Looking at the penal consequences flowing from an elected councillor being subjected to disqualification and its repercussion on the functioning of the local body as also the city or township governed by the local body the provisions have to be construed strictly. A rigorous compliance with the provisions of the Act and the Rules must be shown to have taken place while dealing with a reference under section 7 of the Act.
15 In Civil Appeals Nos.626668 of 1998 no rules or regulations of Janta Aghadi are shown to have been filed with the Collector. The record does not show that any such rules or regulations exist. Had they been there, an effort could have been made to find out “authorisation to issue whip” having been provided therein. During the course of hearing we asked the learned Counsel for the appellant to show any resolution of Janta Aghadi authorising the signatories of the whip to issue the whip. No such resolution was filed before the Collector or the High Court and not even shown to us. The contents of the whip do not also contain any recital spelling out the existence of any such authorisation which also goes to show that there was no such authorization given. In the absence of proof of the signatories of the whip having been authorised by the Janta Aghadi to issue the whip the violation thereof would not attract the applicability of section 3(1)(b) of the Act. May be that the party, aghadi or front had resolved to sponsor a particular person’s candidature at the election. Acting contrary to such resolution, however, strongly worded, may render its members liable to disciplinary proceedings at the party level. But to incur disqualification under the Act there must be a direction issued and such direction must be either by the party, aghadi or front to which the councillor proceeded against belongs or be by any person or authority authorized in this behalf. Mere resolution is not a substitute for direction. On this single ground alone the judgment of the High Court deserves to be maintained.”
19 As has been laid down by the Division Bench of this Court in SadashivH. Patil’scase (cited supra), that rigorous compliance with the provisions of the Act and the Rules must be shown to have taken place while dealing with a reference under section 7 of the Act.
20 Similarly, since the disqualification petition leads to a consequence of unseating a person from elected office, inquiry in the matter shall be restricted to the grounds stated in the petition. No fishing and roving inquiry to improve case of the petitioner would be permissible. The trial of disqualification petition is akin to the trial of an election petition. The petitioner is expected to state facts and grounds in his pleadings and the inquiry in the disqualification petition shall be restricted to these grounds and pleadings stated in the petition. Besides, no evidence can be led on a plea which is not raised in the pleadings and no amount of evidence can cure the defect in the pleadings.
21 Turning to the facts of the instant case, there are no separate Rules/by-laws of the Loha Municipal Council filed with the Collector. What is presented on record is the Constitution of the Indian National Congress party. There is no reference to the authorization to issue whip in relation to transaction of business of the local bodies. There is absolutely no record placed either before the Collector or this Court to arrive at the conclusion that Shri B.R.Kadam, District President, had authorisation to issue whip nor there is any material to conclude that Shri Suryawanshi, leader of municipal party, has been authorised to issue whip. In the absence of by-laws or Rules of the Municipal Council regulating issuance of authorisation of whip/directives, it cannot be inferred that either Shri B.R.Kadam, District President or Shri Suryawanshi have the authorisation to issue directives. There is no resolution placed on record adopted by the elected members of the municipal Council belonging to Congress (I) party authorising its leader or the District President to issue whip/directives. In the absence of any authorisation given by the elected members or the authority borrowed from the rules, regulations or by laws of the original party or municipal party, which has been placed on record before the Collector, it cannot be concluded that either Shri B.R.Kadam, District President or Shri Suryawanshi had authorisation to issue whip. The observations in the judgment of the Supreme Court in the matter of SadashivH. Patil (cited supra), squarely apply to the facts of the instant case.
22 A reference also can be conveniently made to observations of the Division Bench of this Court in the matter of Suresh Madhaorao Bhange and others Vs. Collector, Wardha and others, reported in 1990 (3) Bom. C.R. 199. In paragraph 14 of the judgment, the Division Bench has observed thus:
“14 .... The original party is a genus whereas the Zilla Parishad Party, Municipal Party, Panchayat Samiti Party are the species and the sphere of these species is restricted to that particular geographical area over which the jurisdiction of these different party is extended. Original political party may be the genus; but what section 3(1)(a) and (b) of the Disqualification Act contemplates is not the genus but the species, which may ultimately have their allegiance to the genus. It is these species who have to issue directions to the members of Councillors. It is these species who have to condone the contravention, if at all they went and it is from these species that the member or Councillor has to obtain prior permission before acting contrary to the directions. The scheme of the Act as contained in section 3 is very clear. These elections are after all local and it is after all the local units which contest these elections and not the apex body. The function of the apex body, if at all, is only to give directions to the units and nothing more. The members so selected are responsible directly to the units. The controlling and advisory powers vest in the units and that is why the permission of “such political party” is necessary before acting contrary to the directions of such political party.”
23 So far as instant matter is concerned, the District unit of the party is not contemplated to issue directions. It is also to be born in mind that neither the District President of the party nor the leader of the Municipal Council have authorisation to issue directives, at least such authorisation has not been placed on record either before the Collector or before this Court.
24 Shri Shah, learned Senior Counsel appearing for Respondent No.3, has invited my attention to the judgment delivered by learned Single Judge of this Court in the matter of Sheshrao Trimbakrao Patil and others Vs. Pandit s/o Trimbakrao Shrirangrao Bhise and others, (W.P. No.2905/2011, decided on 18.07.2011), which has been confirmed in L.P.A. No.245/2011, by the Division Bench of this Court. It is pointed out that in the aforesaid matter, one Shri Ghorpade, who was the observer of the political party, had issued the whip. It is contended that the directive, issued by the observer of the political party, was found sufficient to hold the elected members disqualified. It is also contended that the judgment in the matter of SadashivH. Patil (cited supra) has been taken into consideration by the learned Single Judge and it has been concluded that the observer appointed by the political party had authorisation to issue whip. It has been emphasized that the judgment delivered by the learned Single Judge has been upheld by the Division Bench and L.P.A. No.245/2011 has been dismissed. It is to be taken note of that in the facts and circumstances of that case, it was found by the learned Single Judge of this Court that the observer appointed by the party has valid authorisation to issue whip and he has exercised the authority lawfully. The judgment delivered by the learned Single Judge, which has been confirmed by the Division Bench in L.P.A. No.245/2011, is based on the facts of that particular case.
25 Placing reliance on the observations of learned Single Judge in the matter of AmrutaBabaji Mozar Vs. Kondabai Babaji Mozar and another, reported in 1994 (2) Mh.L.J. 1663, it is contended that since the learned Single Judge has considered the decision of the Supreme Court and has put its own gloss thereon, that gloss is binding on all the Courts in the State. The judgment of the Supreme Court is not capable of putting different interpretations and the learned Single Judge has not interpreted the judgment of the Apex Court differently. The only reasonable interpretation of the judgment of the Supreme Court is to be accepted.
26 In the instant matter, however, by application of principle laid down by the Supreme Court in the matter of SadashivH. Patil (cited supra), it needs to be concluded that neither Shri B.R.Kedar, District President of Congress (I) party nor Shri Suryawanshi, leader of the municipal party, are successful in pointing out authorisation in their favour to issue whip / directives. In the absence of specific authorisation in favour of the persons issuing directives, such directives cannot be held to be binding on the members.
27 Now turning to the issue of service of whip, as has been recorded earlier, the panchanamas drawn by Shri Suryawanshi in respect of pasting party directives on the doors of residential premises of each of the members has not been proved. Neither the pancha witnesses, who are signatories to the panchanamas, nor the scribe, who wrote the panchanamas, have been examined before the Collector. The petitioners herein have specifically disputed correctness and validity of the panchanamas. Since the petitioners have disputed validity of the panchanamas, it was the responsibility of Respondent No.3 to prove the same in accordance with law. It is contended, placing reliance on the judgment in the matter of JitendraHimmat Biraris Vs. Kiran Gulabrao Patil and another, reported in 2011 (5) AIR Bom R 413, that the term directions “issued” cannot be equated with the term directions “served”. As laid down by the learned Single Judge of this Court, the object of enactment is to provide for disqualification of members of certain authorities on the ground of defection and for matters incidental and connected therewith. The voters cannot be taken for a ride by change of affiliation by such a member to another political party. In the light of the said object the word “direction issued” as appearing in S.3(1)(b) of the Disqualification Act, will have to be interpreted. It is further observed that if the word “directions issued” is to be interpreted as “served” then that would frustrate the very purpose of the enactment and the provisions. It is contended by the learned Senior Counsel appearing for Respondent No.3, that in the facts and circumstances of the case, it would suffice the purpose if it is pointed out that the directions were issued and it need not be demonstrated that the directions were served.
28 Looking to the facts of the instant case, as has been recorded earlier, neither the District President of Congress (I) party nor the leader of municipal party, are successful in demonstrating that they have authorisation to issue directives. The directives issued must be brought to the notice of the members by some convenient mode. In the instant matter, there does not appear to be anything on record to indicate that the directives issued by the person authorised to issue such directives, has been brought to the notice of the petitioners.
29 The argument advanced by the learned Counsel appearing for petitioners in respect of validity of the communications dated 10.06.2011 and 15.06.2011 needs to be considered at this stage. The communication allegedly issued by Shri B.R.Kadam, District President in favour of Shri Suryawanshi on 10.06.2011 bears Outward No.104/2011. The communication has been allegedly issued from the office of Nanded District Congress (I) Committee, Nanded, whereas, the communication, allegedly issued from the said office on 15.06.2011, bears Outward No. 103/2011. The communication dated 15.06.2011 is in the form of directives to the elected members to cast votes in favour of official candidate of Congress (I) party, whereas, the communication dated 10.06.2011 is addressed to Shri Suryawanshi informing him that he has been offered candidature for the post of President by the party. It is indeed intriguing to note as to how the communication / letter dated 15.06.2011, which shall bear Outward number earlier than the communication/ letter dated 10.06.2011 bears outward no.103/2011. The contention raised by the petitioners that record in respect of issuance of whip has been created subsequently appears to bear substance. There is absolutely no reference to the directives issued by the party President in the subsequent communication made to the Collector or to the leader of the party. In these circumstances, it cannot be safely concluded that there was any whip validly issued by the person authorised to issue such whip / directive.
30 Shri Shah, learned Senior Counsel appearing for Respondent No.3, has contended that petitioner no.1 – Kiran Wattamwar has presented his nomination paper for the post of President in violation of the party directives issued by the party and this act of disregarding party directives shall attract penal consequences, as provided by Section 3 of the Act.
31 In order to prove that petitioner no.1 – Kiran Wattamwar has been informed not to contest election and to vote in favour of party nominee, reliance is placed on the communications issued by Shri Suryawanshi on 11.06.2011 and 13.06.2011, which are stated to have been sent by Registered Post Acknowledgment Due and that the same have been refused by petitioner no.1 – Kiran Wattamwar. The postal acknowledgment in respect of refusal of packet containing the letter is placed on record, which is dated 15.06.2011. The communication sent by Registered Post appears to have been transmitted on 13.06.2011 as appearing from the postal acknowledgment and same appears to have been returned back to the sender on 15.06.2011, within two days. Petitioner no.1 – Kiran Wattamwar has denied that the postman has ever brought the packet containing letter to his notice. He has specifically denied in his deposition that the letter was ever tried to be served upon him. It has been argued that there is presumption in respect of receipt of the postal communication once it is brought to the notice that the same has been transmitted in regular course and on the correct address. Reliance is placed on following three decisions:
(1) In the matter of SukumarGuha Vs. Naresh Chandra Ghosh and another, reported in AIR 1968 Calcutta 49;
(2) In the matter of Ayisabeeviand another Vs. Aboobacker, reported in AIR 1971 Kerala 231; and
(3) In the matter of Om Parkash Bahal Vs. A.K.Shroff, reported in AIR 1973 Delhi 39.
andit is contended that merely denial by the petitioner that he had not received the article sent by registered post will not be sufficient to rebut the presumption under Section 114 of the Evidence Act unless he can prove that some extraordinary event prevented the common course of business being followed. As stated above, the communication appears to have been transmitted on 13.06.2011, whereas, the same appears to have been received back by the sender on 15.06.2011. Even if efficiency of the postal department is presumed and the contention of the petitioners is to be accepted, it has to be demonstrated that the receiver of the alleged letter has, in fact, refused to accept the same when there is a specific denial by the receiver (petitioners herein) in respect of factum of attempt to deliver the packet. In this context, it is to be noted that presumption in such matters is rebuttable and petitioner no.1 – Kiran Wattamwar has, in terms, denied any attempt on the part of postal department to serve the letter on him. In these circumstances, it was the responsibility of the applicant before the Collector (Respondent No.3 herein – Gajanan Suryawanshi) to examine the postman and prove the factum of refusal of the packet containing communication about directives. Reliance can be placed on the judgment in the matter of B.S.Mahajan, since deceased by heirs and Lrs. Vs. Chapsey R. Mistry, reported in 1988(3) Bom.C.R. 535 and in the matter of ParvatibaiMaruti Hande Vs. Satish Mohanram Prajapati, reported in 2002 (Supp.) Bom.C.R. 522, wherein it has been recorded that presumption, in such matters, is rebuttable and once dispute is raised, factum of sending letter by Post and refusal thereof needs to be proved.
32 For the reasons recorded above, both the writ petitions presented by respective petitioners deserve to be allowed and same are accordingly allowed. The order passed by District Collector, Nanded on 18.02.2012 in Disqualification Petition No.49/2011 stands quashed and set aside.
33 Rule is accordingly made absolute. In the facts and circumstances, there shall be no order as to costs.
34 Learned Counsel appearing for Respondent No.3 prayed for stay of the order so as enable Respondent No.3 to challenge the order before appellate forum.
The petitioners are elected representatives and no embargo need be put on the elected representatives from carrying out their functions.
Prayer for grant of interim relief stands refused.