Sau Malti W/O Rajesh Yawalkar and Sau. Durgabai W/O Wamanrao Ganorkar Vs. Sagar S/O Raghunathrao Kautkar, - Court Judgment

Vasanti A. Naik, J.

1. Rule. Rule made returnable forthwith. The petition is heard finally at the stage of admission, with the consent of the learned Counsel for the parties.

2. By this petition, the petitioners impugn the order passed by the Collector, Nagpur, on 10th of February, 2009, disqualifying the petitioners as councillors of the Municipal Council, Mohpa, under the provisions of Section 3(1)(b) of the Maharashtra Local Authority Members Disqualification Act, 1986.

3. Few facts giving rise to the petition are stated thus- The petitioners were elected as councillors of Municipal Council, Mohpa, as candidates from the Rashtrawadi Congress Party. After the elections, the respondent No. 1 was designated as a Group Leader of Rashtrawadi Congress + Congress + B.J.P. (B) Aghadi. The petitioner No. 2 was elected as a President of Municipal Council, Mohpa and had tendered her resignation in the month of July, 2005. After her resignation was accepted, the respondent No. 2-Collector, Nagpur, convened a special meeting for the election of the President of the Municipal Council, Mohpa. The respondent No. 1 filed a petition under Section 3 of the Act of 1986, read with Rule 6 of the Maharashtra Local Authority Members Disqualification Rules 1987, before the District Collector, Nagpur. It was the case of the respondent No. 1 that by a whip issued by him as the Group/Aghadi Leader, the elected councillors of said party were called upon to remain present for a special meeting dated 12/8/2008, for electing the President of the Municipal Council and were further called upon to participate in the meeting and vote in favour of one Sheelabai Khatik. According to the respondent No. 1, though the petitioners were the elected councillors of Rashtrawadi Congress Party, they deliberately remained absent from their residential houses and did not accept the whip. The copies of the said whip were, therefore, published in the daily newspaper 'Sakal' on 12/8/2008. According to the respondent No. 1, in spite of the issuance of the whip to the petitioners, the petitioners failed to obey the whip and instead the petitioner No. 1 set up her candidature for the post of the President of the Municipal Council and the petitioner No. 2 seconded her nomination against the declared nomination of Sheelabai Khatik. It was the case of the respondent No. 1 that the petitioners had disobeyed the whip and acted contrary to the directions issued by the respondent No. 1 and hence, they were liable to be disqualified under the provisions of Section 3(1)(b) of the Act of 1986.

4. The petitioners filed an application under Rule 7(2) of the Rules of 1987, for dismissal of the petition filed by the respondent No. 1 under Section 3 of the Act of 1986. According to the petitioners, the petition filed by the respondent No. 1 was not tenable as it did not satisfy the requirements of Rule 6 of the Rules of 1987. It was stated in the application that it was necessary to make a preliminary enquiry on the grounds raised in the petition. By the application, the petitioners requested the authority to conduct a preliminary enquiry and prayed for dismissal of the petition as not tenable. The application was opposed by the respondent No. 1, by filing reply. The respondent No. 2-Collector, Nagpur, however, rejected the application filed by the petitioners for dismissal of the petition. The order passed by the Collector was challenged by the petitioners before this Court in Writ Petition No. 5347/2008. This Court declined to interfere in the matter at that stage and granted liberty to the petitioners to challenge the order passed by the Collector on 18/11/2008, after final adjudication of the matter. The petition was disposed of by the order dated 18th of December, 2008.

5. The parties tendered their evidence and after an appreciation of the same, the respondent No. 2, by the impugned order dated 10th of February, 2009, allowed the petition filed by the respondent No. 1 and disqualified the petitioners under the provisions of Section 3 of the Act of 1986. The order dated 10/2/2009, so also the order dated 18/11/2008, is challenged in the instant petition.

6. Shri A.M. Gordey, the learned Counsel for the petitioners, submitted that the order passed by the respondent No. 2 on 10/2/2009 is liable to be set aside as the respondent No. 2 failed to follow the mandatory procedure prescribed under the provisions of Rules 6 and 7 of the Rules of 1987. The learned Counsel for the petitioners took this Court through the provisions of Rules 6 and 7 of the Rules of 1987, to substantiate that it was necessary for the Collector to consider, on the receipt of the petition under Rule 6 of the Rules, whether the petition complied with the requirements laid down in Rule 6 of the Rules of 1987. Apart from that, according to the learned Counsel for the petitioners, it was necessary for the respondent No. 2-the Collector to forward the copies of the petition to the councillors, along with the annexure's. The learned Counsel for the petitioners submitted that it was necessary for the respondent No. 2 to make a preliminary enquiry in accordance with the provisions of Rule 7 of the Rules of 1987. According to the learned Counsel for the petitioners, the procedure prescribed in Sub-rules 1 to 6 of Rule 7 of the Rules of 1987 was not followed by the Collector in this case. The statement of imputation of disqualification and the distinct articles of charge was not served on the petitioners, along with the list of documents and witnesses, by which and by whom, the articles of charge were proposed to be sustained. The learned Counsel for the petitioners submitted that the procedure prescribed under Rule 7 of the Rules of 1987 was mandatory and since the same was not followed by the Collector, serious prejudice was caused to the petitioners in raising their defence. The learned Counsel for the petitioners relied on the decisions in the case of Sadashiv H. Patil v. Vithal D. Teke reported in 2001 (1) Mh.L.J. 312 and in the case of Hariharrao Vishwanathrao Bhosikar v. Datta Anandrao Pawar and Ors. reported in : 2005 (4) Mh.L.J. 211 to substantiate his submission that the provisions of the Act and the Rules were mandatory and a rigorous compliance with the provisions was necessary while dealing with a reference under Section 7 of the Act of 1986. According to the learned Counsel for the petitioners, the petitioners had raised an objection in this regard as early as on 14/10/2008, but, the objection raised by the petitioners, to the tenability of the petition, was wrongly rejected by the respondent No. 2 by the impugned order dated 18/11/2008.

7. The learned Counsel for the petitioners then submitted that the impugned order dated 10/2/2009 cannot be sustained as the said order is sans reasons and does not disclose the thinking process of the respondent No. 2. According to the learned Counsel for the petitioners, the respondent No. 2 merely referred to the evidence tendered by the parties and arrived at the finding, without discussing the evidence or recording the reasons for arriving at a finding. It is submitted on behalf of the petitioners that it is well settled that a cryptic order which does not disclose the application of mind by the authority, cannot be sustained. The learned Counsel for the petitioners relied on the decision in the case of The Siemens Engineering and . v. The Union of India and Anr. reported in : AIR 1976 Supreme Court 1785 and the decision of this Court in the case of Laxmikant Tukaram Choudhari and Ors. v. State of Maharashtra and Ors. reported in : 2003 (4) Mh.L.J. 150, to substantiate his submission.

8. It is submitted on behalf of the petitioners that the respondent No. 2 committed a serious error in not recording the cross-examination of the two material witnesses examined by the respondent No. 1 for proving the service of the whip on the petitioners, as is normally recorded. It is submitted on behalf of the petitioners that the respondent No. 2 merely recorded a gist of the statements/evidence tendered by the two panch witnesses and the recording of the evidence in this fashion has caused serious prejudice to the petitioners. This irregularity, according to the learned Counsel for the petitioner, has vitiated the enquiry as also the impugned order dated 10/2/2009. The learned Counsel for the petitioner relied on the decision of the Supreme Court in the case of Nibaran Chandra Bag v. Mahendra Nath Ghughu reported in : AIR 1963 Supreme Court 1895 to substantiate his submission.

9. The learned Counsel for the petitioners then submitted that the record clearly demonstrates that the respondent No. 2 had also not afforded a reasonable opportunity to the petitioners to cross-examine the witnesses examined on behalf of the respondent No. 1 and an opportunity to be subjected to cross-examination. It is submitted on behalf of the petitioners that the action of disqualification entails serious penal consequences and hence, in such a case, it was all the more necessary for the respondent No. 2 to strictly adhere to and comply with the procedure prescribed under the Act and the Rules and afford a reasonable opportunity to the petitioners to raise their defence. Since this is not done in this case, according to the learned Counsel for the petitioners, the impugned order dated 10/2/2009, is liable to be set aside.

10. Shri A.S. Chandurkar, the learned Counsel for the respondent No. 1, supported the order passed by the respondent No. 2 on 10/2/2009 and submitted that though the provisions of Rules 6 and 7 of the Rules of 1987 are mandatory, in the instant case, the petitioners had waived the mandatory requirement. It is submitted on behalf of the respondent No. 1 that it is now well settled that even a mandatory requirement can be waived by the party concerned, if such mandatory provision is conceived in his interest and not in public interest. It is submitted on behalf of the respondent No. 1 that the mandatory provisions of Rules 6 and 7 of the Rules of 1987 could be said to be conceived in the interest of the petitioners in this case and hence the said provision could have been waived. According to the learned Counsel for the respondent No. 1, the material on record including the pleadings clearly show that the petitioners had waived the mandatory requirement, which was conceived in their interest as, while raising the objection to the tenability of the petition on 14/10/2008, the petitioners submitted to the jurisdiction of the respondent No. 2 by proceeding with the matter and filing the written statement on 14/10/2008 only. The learned Counsel for the respondent No. 1 submitted that by applying for permission to cross-examine the witnesses of the respondent No. 1 on 25/11/2008, the petitioners further showed that they were not prejudiced by the non-following of the mandatory procedure prescribed in Rule 7 of the Rules of 1987 and that they were able to defend themselves on the basis of the pleas raised in the petition. The learned Counsel for the respondent No. 1 submitted that the filing of the written statement on 14/10/2008 and seeking of the permission to cross-examine the witnesses of the respondent No. 1 on 25/11/2008, clearly showed that the petitioners had waived the mandatory requirements of the provisions of Rule 7 of the Rules of 1987 and they were able to raise a reasonable defence. The learned Counsel for the respondent No. 1 relied on the decisions in the case of State Bank of Patiala and Ors. v. S.K. Sharma reported in : 1996 (3) SCC page 364 and in the case of Rajendra Singh v. State of M.P. and Ors. reported in : 1996 (5) SC page 460, to substantiate his submission that a mandatory provision conceived in the interest of a private party could be waived at the instance of the party.

11. The learned Counsel for the respondent No. 1 then submitted that the voluminous evidence on record clearly showed that the petitioners had disobeyed the whip and the findings recorded by the respondent No. 2 on this issue cannot be faulted merely on the ground that very many reasons are not recorded for arriving at the said finding. The learned Counsel for the respondent No. 1 submitted that a reference was made to the material evidence in the impugned order and on a perusal of the same, it would be clear that the respondent No. 2 committed no error in passing the impugned order .

12. The learned Counsel for the respondent No. 1 submitted that it was not necessary for the respondent No. 2 to record the cross-examination strictly in accordance with the provisions of the Code of Civil Procedure and the Evidence Act. The learned Counsel for the respondent No. 1 submitted that the effect and the tenor of the cross-examination can be very well gathered from the gist of the cross-examination as recorded by the respondent No. 2 on 6/1/2009. The learned Counsel for the respondent No. 1 relied on the decisions in the case of Nibaran Chandra Bag v. Mahendra Nath Ghughu reported in : AIR 1963 Supreme Court 1895 and in the case of Md. Shakoor Mian v. Raj Mangal Mishra and Ors. reported in : (1999) 7 SCC 461.

13. It is submitted on behalf of the respondent No. 1 that ample opportunity was granted by the respondent No. 2 to the petitioners to cross-examine the witnesses of the respondent No. 1 and also to submit for cross-examination, but the petitioners had failed to avail that opportunity on false and non-existent grounds.

14. It is lastly submitted on behalf of the respondent No. 1 that the scope of interference with the impugned order in exercise of the extraordinary writ jurisdiction being extremely limited, this Court may not interfere with the impugned order as the respondent No. 2 has considered the evidence on record to arrive at the findings and finality is attached to the order as no appeal is provided against the same under the Act of 1986. The learned Counsel for the respondent No. 1 relied on the decision in the case of Hari Vishnu Kamath v. Ahmad Ishaque and Ors. reported in : AIR 1955 SC page 233 to substantiate the submission.

15. Shri D.B. Patel, the learned Assistant Government Pleader appearing on behalf of the respondent No. 2, also supported the impugned order dated 10/2/2009, and advanced his submission on the lines similar to those of the respondent No. 1.

16. I have considered the submissions made on behalf of the parties and perused the impugned order along with the documents which form a part of the record. I have also perused the relevant provisions of the Act of 1986 and the Rules of 1987. On a consideration of the same, it is clear that the respondent No. 2 has not complied with the mandatory procedure prescribed under Sub-rules 1 to 6 of Rule 7 of the Rules of 1987. It is necessary to note that the respondent No. 2 has given a complete go-bye to the procedure prescribed under Sub-rule 1 to 6 of Rule 7 of the Rules of 1987, and directly issued a notice to the petitioners on the petition filed by the respondent No. 1, without holding any preliminary enquiry as required under the provisions of Sub-rules 4 and 5 of Rule 7. It is necessary to note that the respondent No. 2 also did not consider whether the petition complied with the requirements laid down under Rule 6 of the Rules of 1987. At least this is not reflected from the record. It is rightly submitted on behalf of the petitioners that in the absence of the service of the statement of imputation along with the relevant facts and the list of documents and witnesses and in the absence of a preliminary enquiry, the petitioners were not able to raise a reasonable defence. The object of the provisions of Sub-rules 3 to 7 of Rule 7 of the Rules of 1987 is to provide an opportunity to the concerned councillor to peruse the statement of facts, the imputations of disqualification, the articles of charge, the list of documents and the list of witnesses so that the concerned councillor can raise an appropriate and reasonable defence. The non-compliance with the provisions of Sub-rules 3 to 6 of Rule 7 of the Rules of 1987, undoubtedly, caused a serious prejudice to the petitioners and it cannot be said that the petitioners were well aware of the charges which they had to answer, as a written statement/reply was filed by them.

17. It is, no doubt, true that in a given case, there can be a waiver of a mandatory requirement by a party when the mandatory provision is conceived in the interest of the party concerned and not in the interest of the public. But, in a case like the one in hand, the prejudice to a party by the non-compliance of the mandatory provisions of Sub-rules 3 to 7 of Rule 7 of the Rules of 1987, is obvious. In any case, it cannot be said that in this case, there was a waiver of the mandatory requirement as the petitioners had filed the written statement on 14/10/2008, and had also sought permission to cross-examine the witnesses of the respondent No. 1 on 25/11/2008, specially when the petitioners had raised a preliminary objection to the tenability of the petition, on 14/10/2008 and had specifically requested the respondent No. 2 to comply with the provisions of Rule 7 of the Rules of 1987 and atleast hold a preliminary enquiry in the matter. The submission made on behalf of the respondent No. 1 that there was no prejudice caused to the petitioners by non-compliance of the provisions of Rule 7 of the Rules of 1987 and there was a waiver of the mandatory requirement by the conduct of the petitioners, is liable to be rejected for the aforesaid reasons. The Hon'ble Supreme Court as also this Court has laid down in the judgments reported in 2001(1) Mh.L.J. 312 and : 2005(4) Mh.L.J. 211, that the provisions of the Act of 1986 and the Rules of 1987 are mandatory and a strict compliance of the same is necessary while dealing with the petition under Section 7 of the Act of 1986. Since the respondent No. 2 has not complied with the mandatory provisions of Rule 7 of the Rules of 1987, and since noncompliance has caused grave and serious prejudice to the petitioners in this case, the impugned order passed by the respondent No. 2 on 10/2/2009, is liable to be set aside. 18. A perusal of the impugned order dated 10/2/2009 in its entirety makes it abundantly clear that the respondent No. 2 has not recorded any reason, much less any cogent reason to reach to the finding that the whip was actually served on the petitioners and the petitioners had disobeyed the whip. The respondent No. 2 made a reference to the evidence tendered by the parties on record in the order dated 10/2/2009 and then merely recorded the five issues which arose for determination in the case and the findings on those five issues, without discussing any evidence while rendering the findings and without recording any reasons for doing so. It is now well settled that an order sans reasons is not an order in the eye of law and cannot be sustained as it does not disclose the mind of the authority which passes the order. The decisions reported in 2001(1) Mh.L.J. 312 and : 2005(4) Mh.L.J. 211 clearly support the case of the petitioners and the impugned order dated 10/2/2009 is also liable to be set aside on this ground.

19. In this case, the respondent No. 2 had not only failed to follow the mandatory procedure under the provisions of Rule 7 of the Rules of 1987, but had also not recorded the cross-examination of the two material witnesses in a manner which can be intelligible to a person who reads the same. In this case, the respondent No. 2 has not recorded the evidence as is done in the Civil Courts or in the question and answer form which is normally found in the departmental proceedings. The respondent No. 2 had found a novel way of recording the cross-examination by giving the gist of the statements which were tendered by the material witnesses in their cross-examination. I have perused the cross-examination of the material witnesses as recorded by the respondent No. 2. It is, however, difficult to gauge as to exactly what was deposed by the witnesses in their cross-examination. The recording of the cross-examination of the material witnesses in this fashion has also caused prejudice to the petitioners as it is difficult to gather as to what questions were posed to the witnesses and what answers were tendered by the witnesses, thereto. The enquiry conducted by the respondent No. 2 was surely not in accordance with the principles of natural justice.

20. In view of the observations made herein above, it would not be necessary to deal with the other ancillary questions which are raised by the petitioners. Suffice it to say that the impugned order dated 10/2/2009 cannot be sustained and is liable to be set aside, specially as it entails serious penal consequences and there is apparent noncompliance of the mandatory provisions of law and nonadherence to the principles of natural justice.

21. In the result, the petition succeeds and the impugned order passed by the respondent No. 2 on 10/2/2009 is hereby quashed and set aside. The matter is remanded to the respondent No. 2 for a fresh enquiry in accordance with law. Parties undertake to appear before the respondent No. 2 on 20th of July, 2009, so that issuance of individual notices to the parties could be dispensed with. The respondent No. 2 is, however, directed to complete the enquiry and decide the petition as early as possible and positively within a period of ninety days from the date of the appearance of the parties before the respondent No. 2. Rule is made absolute in the aforesaid terms with no order as to costs.