Case Note & Summary
In 2008, elections were held for the Zilla Parishad, Dhule, where the petitioners were elected as councillors on the ticket of the Nationalist Congress Party (NCP). The party position was 21 Indian National Congress, 8 NCP, 14 Shiv Sena, 9 Bharatiya Janata Party, and 3 Independents. On 30 December 2008, a special meeting was convened for the election of the President and Vice President. While the NCP whip allegedly directed support for Budha Hiraman Pawar (Congress) for President and Smt. Lalita Motiram Bahiran (NCP) for Vice President, the petitioners voted for Sudhir Sudhakar Jadhav (Shiv Sena) and Bharat Nanabhau Ise (BJP), respectively. Respondent No. 1, claiming to be the elected leader of the NCP Zilla Parishad party, filed a petition under Rule 6 of the Maharashtra Local Authority Members' Disqualification Rules, 1987 before the District Collector, Dhule, seeking disqualification of the petitioners for violating the party whip. The Collector, by order dated 7 June 2011, allowed the petition and disqualified the petitioners under the Maharashtra Local Authority Members' Disqualification Act, 1986. The petitioners challenged this order through a batch of writ petitions before the High Court of Judicature at Bombay, Bench at Aurangabad. The core legal issues revolved around the validity of the whip, compliance with statutory procedure, service of the whip on the councillors, variance between pleadings and proof, and the correctness of the Collector's order, including a subsequent correction of the disqualifying provision. The petitioners argued that the disqualification proceeding was vitiated by non-adherence to mandatory rules, lack of proper service of the whip, faulty framing of charge, and improper exercise of power under Section 152 of the Code of Civil Procedure. The respondent contended that the procedural rules are directory, the councillors' voting contrary to the party candidate itself proved violation, and that the disqualification was justified. The High Court reserved judgment on 30 June 2011 and pronounced it on 5 August 2011. The provided excerpt of the judgment does not include the court's analysis, findings, or final decision.
Issue of Consideration
WRIT PETITION NO. 4146 OF 2011
Case Details
2011 LawText (BOM) (08) 18
Writ Petition No. 4146 of 2011 with connected petitions 4147, 4148, 4149, 4150 of 2011
V. J. Dixit, P. D. Bachate, R. R. Mantri, V. D. Hon, R. B. Raghuwanshi for Petitioners; P. M. Shah, Amol Sawant, Anturkar, R. N. Dhorde, S. S. Deshmukh for Respondent No.1; V. H. Dighe, AGP for Respondent No.2
Jitendra Himmat Biraris, Bhivaji Bhatu Pawar, Kedabai Shantaram Jadhav, Rajnibai Baburao Gharte, Soni Bharat Pawara
Kiran Gulabrao Patil and The District Collector, Dhule
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Nature of Litigation
Writ petitions under Article 226 of the Constitution of India challenging the order of the Collector, Dhule, disqualifying the petitioners as elected members of the Zilla Parishad, Dhule.
Remedy Sought
Quashing of the Collector's order dated 07.06.2011 and setting aside the disqualification of the petitioners.
Filing Reason
The Collector allowed the disqualification petition filed by respondent No. 1 and held that the petitioners had violated the party whip, thereby causing their disqualification from membership.
Previous Decisions
The District Collector, Dhule, by judgment and order dated 07.06.2011, disqualified the petitioners under Section 3(1)(a) of the Maharashtra Local Authority Members' Disqualification Act, 1986, later corrected to Section 3(1)(b).
Issues
Whether the Collector followed the procedure prescribed under the Maharashtra Local Authority Members' Disqualification Rules, 1987, and whether non-compliance vitiates the proceedings.
Whether there is a fatal variance between the pleadings and the evidence regarding the date of the whip and the meeting in which the respondent was elected as party leader.
Whether the whip was properly served on the petitioners and whether they had knowledge of its contents.
Whether the charge framed was valid and sufficient to support disqualification under Section 3(1)(b) of the Act.
Whether the Collector's subsequent correction of the order, substituting Section 3(1)(b) for Section 3(1)(a) without hearing the petitioners, is legally sustainable.
Submissions/Arguments
Petitioners: The disqualification proceedings must strictly adhere to the rules; any deviation vitiates the order. The evidence contradicts the pleading as the whip and leader election were not proved on the date alleged. The whip was never served; without service and knowledge of its contents, no violation can be inferred. The charge was faulty; the original disqualification was under Section 3(1)(a) and altering it under Section 152 CPC behind the petitioners' back is impermissible. The rules are mandatory, not directory, especially when unseating an elected representative.
Respondent No. 1: The procedural rules under the Disqualification Act are directory and meant to facilitate inquiry, not to obstruct it. The councillors' act of voting contrary to the party candidate itself proves violation of the whip. One petitioner signed the meeting proceedings wherein the respondent was authorized as party leader, yet failed to present herself as a witness, inviting adverse inference. The Collector's order is justified and requires no interference.
Judgment Excerpts
All these petitions involve common question of law and are based on same factual matrix, as such are decided together.
The rules governing the proceedings under the disqualification rules have to be strictly adhered.
The Disqualification Act and Rules are based on the provisions of the Xth Schedule of the Constitution.
If the rules are not followed then the proceedings before the Collector itself stand vitiated.
Procedural History
The petitioners were elected as councillors of Zilla Parishad, Dhule in the 2008 general elections as NCP candidates. On 30.12.2008, a special meeting for election of President and Vice President was held; the petitioners voted for candidates of Shiv Sena and BJP. Respondent No.1 filed a disqualification petition under Rule 6 of the Maharashtra Local Authority Members' Disqualification Rules, 1987 before the Collector, Dhule. The Collector, after inquiry, by order dated 07.06.2011, disqualified the petitioners under Section 3(1)(a) of the Maharashtra Local Authority Members' Disqualification Act, 1986, later corrected to Section 3(1)(b). The petitioners challenged this order in the present writ petitions before the High Court. The High Court heard counsel and reserved judgment on 30.06.2011, pronouncing it on 05.08.2011.
Acts & Sections
- Maharashtra Local Authority Members' Disqualification Act, 1986: 3(1)(a), 3(1)(b)
- Maharashtra Local Authority Members' Disqualification Rules, 1987: Rule 6
- Constitution of India: Tenth Schedule
- Code of Civil Procedure, 1908: Section 152
