ORDER
V.P. Tipnis, J.
1. The petitioner is an elected Councillor of Ratnagiri Municipal Council. Admittedly, she was elected on the ticket of Bhartiya Janta Party. One Pramod Manohar Redij the group leader of Bhartiya Janta Party in respect of group of Councillors of the said party in Ratnagiri Municipal Council, made an application in the Collector under section 7 of the Maharashtra Local Authority Member Disqualification Act, stating that the petitioner has incurred disqualification on the ground of defection as per section 3 of the said Act.
2. Section 3 provides that a Councillor or a member belonging to any political party or aghadi or front shall be disqualified from being a Councillor pr a member inter alia if he votes or abstains from the voting in any meeting of the Municipal Council contrary to any direction issued by the political party or aghadi or front to which he belonged or by any person or authority authorised by any of them in this behalf without obtaining in either case, the prior permission of such political parry or aghadi or front person or authority and such voting has not been condoned by such political party or aghadi or front person or authority within 15 days from the date of such voting.
3. The Counsel pointed out that the petitioner voted against the direction of the party in the meeting held on 31st October, 1997 of the Ratnagiri Municipal Council and she voted in favour of two resolutions against the direction by the political party and as such, by virtue of provisions of section 3 of
the Act, she has become disqualified. It was pointed out that in fact there was a meeting of the Ratnagiri Municipal Council on 28th October, 1997 and the Bhartiya Janata Party took a decision that if any voting takes place by Councillors belonging to party to vote against the resolutions. Such direction was to be communicated to all the Councillors by one Avinash Satam who is the Vice President of the City Unit of Ratnagiri City of Bhartiya Janta Party and one Sachin Wahalkar who is the Secretary of the said City Unit. The aforesaid ‘Pakshadesh’ (WHIP) was communicated to all the Councillors. When aforesaid two persons went to the petitioner for serving the Whip on her on 26th October, 1997, she refused to accept the same and therefore, party was required to publish the Whip by publishing the same in daily ‘Ratnagiri Times’ in its issue on 27th October 1997. Though some meeting was held on 28th October, 1997, ultimately upon the complaints of several Councillors the Collector cancelled the proceedings and directed the President of Ratnagiri Municipal Council to hold a fresh meeting within twenty days.
4. A meeting was held of Ratnagiri Municipal Council on 31st October, 1997 for considering the very same agenda. Prior to the meeting, the group of Councillors belonging to Bhartiya Janta Party assembled and it was decided that if the occasion arises to put any resolution to vote, all the Councillors should vote against the resolution or resolutions. The petitioner was not present for the aforesaid meeting, therefore, to inform the petitioner regarding the direction of the party one Vasant Bhansari, the President of City Unit Bhartiya Janata Party, Ratnagiri, tried to inform the aforesaid Whip and tried to serve the same on the petitioner, but petitioner told him that she will not abide by the Whip and she refused to accept the Whip. In the meeting on 31st October, 1997 infact, the petitioner sat with and among the members of the Congress party and when resolution Nos. 196 and 220 were put to vote, against the direction of the party, she gave her vote in favour of the resolutions. Thereafter, there was a meeting of the group of Councillors belonging to Bhartiya Janta Party on 4th November, 1997, it was decided not to condone the said lapse on the part of the petitioner and accordingly aforesaid application was made to the Collector.
5. After the receipt of the application, the Collector issued notice to the petitioner. The petitioner filed her reply and parties were also heard through advocate. One Satpute the Additional Collector, Ratnagiri was appointed to conduct an enquiry and submit a report. Said Satpute submitted report to the Collector on 14th June, 1998. The Inquiry Officer submitted a report with the recommendation that the petitioner has incurred disqualification as per section 3 of the Act. Thereafter, the Collector heard the parties through their advocates. The material and evidence produced before the Inquiry Officer was also considered by the Collector. The submissions of rival Counsel in detail were heard by the Collector and ultimately by his order dated 10th August, 1998, the Collector was pleased to hold that Mrs. Shilpa Dundhur the Councillor of Ratnagiri Municipal Council has incurred disqualification and she was disqualified to continue as Councillor of the Municipal Council.
6. Being aggrieved by the said order, said Smt. Dhundur has filed this petition under Article 226 of the Constitution of India.
7. We have heard Shri Desai, the learned Counsel in support of petition and Shri Shetye for the Collector and State of Maharashtra and Shri Kanade
for the original applicant and leader of the group of Bhartiya Janta Party Councillors in Ratnagiri Municipal Council Shri Redij respondent No. 3 herein. Shri Desai contends that as a matter of fact, there is no material on record to hold that party had taken such decision. Secondly, there is no material to hold that any such decision even if is taken, was not duly and properly communicated to the petitioner by properly authorised person. Shri Desai contended that if two things are not proved then there is no question of petitioner having voted against the direction or the Whip. Shri Desai secondly contended that petition and the annexures before the Collector have not been verified as required under the provisions of sub-rule (4) of Rule 6 of the relevant applicable rules and as such, the Collector was duty bound to reject the application at the initial stage itself under Rule 7 of the aforesaid Rules. Shri Kanade and Shri Shetye on the other hand, contended that material on the record clearly shows that there is enough evidence to show that there was such a Whip and it was properly communicated. Secondly, they contended that on proper interpretation and the facts of the case, it cannot be stated that the petition and annexures were not verified in the manner in which they are supposed to be verified under the provisions of Rule 6(4).
8. Coming to the first contention of Shri Desai that there was no such direction by the party and that it was never served on the petitioner, it is relevant to notice that there are seven Councillors of Ratnagiri Municipal Council belonging to Bhartiya Janta Party, that the petitioner voted in favour of two resolutions in the meeting of 31st October 1998 is not disputed. The only question is whether there was any Whip or there was any direction to vote against the said resolution and whether the same was served on the petitioner. In that behalf, it is relevant to notice that the applicant Pramod Redij who is the leader of the group of Councillors belonging to Bhartiya Janta Party in Ratnagiri Municipal Council has filed an affidavit, which clearly supports the allegations in the application. In case of meeting on 31st October 1998, he has asserted in the affidavit that there was a meeting of the Councillors belonging to Bhartiya Janta Party prior to the Councillor meeting on 31st October, 1997, despite invitation, the petitioner remained absent. In the said meeting it was decided to vote against the resolutions Nos. 196 and 220. All the Councillors were served with the said direction or Whip excepting Smt. Dhundur the petitioner herein. The President of the City Unit of Bhartiya Janta Party of Ratnagiri City viz. Shri. Vasant Bhansari went to the residence of the petitioner and orally intimated the direction of the party and infact, he also tried to serve the written direction upon Smt. Dhundur the petitioner, but Smt. Dhundur flatly refused to accept the same. Shri Redij was immediately informed about it. Therefore just prior to the commencement of the meeting of the Council; in the presence of Shri Redij Shri Bhansari again orally informed the direction of the party to Smt. Dhundur petitioner and Redij tried to serve the copy of the direction but the petitioner bluntly told that she is not going to abide by the direction of the party. Infact, Smt. Dhundur petitioner sat among the Congress Councillors and not alongwith the Bhartiya Janta Party members. She voted in favour of both the resolutions. In a meeting of the Councillors belonging to Bhartiya Janta Party held on 4th November 1997, it was decided not to condone the conduct of Smt. Dhundur petitioner in voting against the party Whip or party direction.
These assertions in the affidavit of Shri Redij are supported by Shri Bhansari in the affidavit filed by him before the authority.
9. The fact finding authority viz. the Collector and the Inquiry Officer on the basis of material, has held that the party had given directions not to vote in favour of the two resolutions and that the petitioner was very clearly informed about the same. The fact that the petitioner voted in favour of resolution is an admitted fact. In such matters, it is clear that when there is enough material on record which can be accepted and the authorities concerned take a decision and reach conclusion on fact on the basis of appreciation of evidence, it is not function of the High Court in its jurisdiction under Article 226 of the Constitution of India to interfere with such finding. On the basis of material on record, we do not find any fault with the order holding that there was a decision by the group of Councillors of Bhartiya Janta Party to oppose two resolutions and that infact, such direction was duly communicated to the petitioner.
10. Shri Desai contended that as per Rule 6(4) every petition and any annexures thereto shall be signed by the petitioner and verified in the manner laid down in the Civil Procedure Code for the verification of pleadings. Order 6, Rule 15 of the Civil Procedure Code provides as under :
“(1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.
(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.
(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.”
There is a Bombay High Court amendment to the rule as under :
In sub-section (1) of Rule 15, substitute a colon for the full stop at the end and add the following proviso, thereafter,
“Provided that in respect of pleadings to be filed in the Bombay City Civil Court such verification shall, within the local jurisdiction of the Court, be made before one of the officers of the said Court empowered to administer oath, and elsewhere, before any officer mentioned in section 139 of the Code of Civil Procedure, 1908”.
Shri Desai therefore, submits that as per the Bombay High Court amendment, the petition ought to have been verified before any Officer has provided under section 139 of the Civil Procedure Code and in asmuch as admittedly the petition before the Collector is not verified before any of the authorities, the same does not comply with sub-rule (4) of Rule 6 and ought to have been dismissed. We are not at all impressed by this submission for the simple reason that on proper reading, the Bombay High Court amendment adding aforesaid to sub-rule (1) of Rule 15 of Order 6, in our opinion, is clearly restricted to the pleadings to be filed in Bombay City Civil Court. The amendment provides that when in respect of pleadings to be filed in Bombay City
Civil Court such verification if is within the local jurisdiction of the Court has to be made before one of the officers of the said Court empowered to administer oath and elsewhere before any officer mentioned in section 139 of the C.P.C. Both these phrases “within local jurisdiction of the Court” and ‘elsewhere’ pertain to verification in respect of pleadings to be filed in the Bombay City Civil Court. For example, in respect of a plaint to be filed in Bombay City Civil Court if the person verifying verifies it within local jurisdiction then he will have to verify the same before one of the officers of the said Court empowered to administer oath but when in respect of pleadings to be filed in the Bombay City Civil Court, the verification is done at a place outside the local jurisdiction of the said Court, it will have to be before any officer mentioned in section 139 of the Civil Procedure Code. As such, the said Bombay amendment is not relevant and not attracted or applicable at all to the petition filed before the Collector under the provisions of section 7. There is no dispute that the original application is otherwise duly verified as is evident from the copy of the application annexed to the petition.
11. The Counsel cited several judgments upon the issue as to what is the effect of non-compliance of the Rules or verification or attestation as required. However, on the basis of facts of the case, as we have come to the conclusion that infact, there is no non-compliance and that there is compliance, we find it unnecessary to refer to those authorities.
12. In the result, the petition fails and is rejected. Ad-interim order shall stand vacated forthwith.
13. At this juncture, Shri Desai prays for continuation of stay order of disqualification passed by the Collector. Considering the facts and circumstances of the case and in view of the fact that all the conclusions are upon the basis of material on record, said prayer is rejected. Certified copy expedited.
14. Petition dismissed.