JUDGMENT
T.K. Chandrashekhara Das, J.
1. These three writ petitions are directed against the order passed by the Collector of Sangli in Municipal Case No. 27 of 1997 on 22nd June, 1998, whereby the three petitioners were declared to be disqualified under the Maharashtra Local Authorities Members Disqualification Act, 1986, (herein after called as the Act,) from being the Councillors of Vita Municipal Council. The allegation in general against them was that they had voted in the election to the President of the Council which was held on 16th December, 1997, contrary to the direction of Janata Aghadi to which they belong. The allegation against the petitioner in Writ Petition No. 3274, in particular, was that he contested the Election for the post of the President against the official Candidate set up by his political party in violation of the directions issued by the party to withdraw his nomination against the Official Candidate. So also, the allegation, in particular, against the petitioner in W.P. No. 3275 was that he proposed the candidature of the petitioner in W.P. No. 3274 whereas the allegation against the petitioner in W.P. No. 3276 was that he voted in favour of the petitioner in W.P. No. 3274, contrary to the direction issued by the political party or Aghadi, which resulted in the defeat of the official candidate, Respondent No. 2 in all the petitions.
2. Thus, as’ the petitioners were disqualified by a common order, and as the same is challenged in these writ petitions, on common grounds, and heard them together, we are proposing to dispose of all the three writ petitions by this common Judgment.
3. The Petition before the Collector was filed by three Councillors of Vita Municipal Council. Respondents Nos. 1 to 3 herein, by virtue of the Rule 6 of the Local Authority Members Disqualifications Rules, 1987 (hereinafter referred to as “Rules”), and petitioner No. 2 therein who is Respondent No. 2 herein, was the candidate for the president decided by the Janata Aghadi.
4. The main argument advanced by the learned Counsel appearing for the Petitioner in Writ Petition No. 3274, Shri Anturkar can be summarised as follows: The learned Counsel for the petitioners in the other two writ petitions, Shri More, was endorsing Shri. Anturkar’s contentions.
Firstly, so called directions issued by the political party is not the direction contemplated under the Act and the Rules made thereunder. Therefore, it is not binding on them. Precisely, he submits that the directions should have been issued by the Municipal party.
The second submission is that respondent No. 1 is not the Leader of the Municipal Party. Respondent No. 1 was described as “PRATOD” meaning thereby “SPOKESMAN”. He is not the Leader of the political party nor is he the leader of the Municipal Party.
The third submission is that the decision said to have been taken in the meeting held on 14th December, 1997 cannot be said to be the decision taken in the meeting of the Apex body, and the person who had issued the directions was not the person authorized by the meeting held on 14th December, 1997.
Fourthly, the Collector has failed to consider the decision of this Court rendered in the case of Suresh Madhaorao Bhange and Ors. v. Collector, Wardha 1990 Mah. L.J. 848 : (1990) 3 Bom. CR. 199, which had held, in substance, that Whip is to be issued by the Municipal Party in order to render the violation of Whip a disqualification. In view of this the conclusion arrived at by the Collector that the Petitioner has violated the Whip or direction was not correct.
5. Shri Kumbhakoni, learned Counsel for the first respondent in all the writ petitions, on the other hand, submits that the Act does not contemplate that the direction has to be issued by the Municipal party as mentioned in Section 3 of the Act. This contention has been strongly supported by Shri Oka, the learned Counsel for respondents Nos. 2 and 3 in all the writ petitions. The learned Additional Advocate General Shri Apte, appearing for the State of Maharashtra was critical of the judgment of this Court cited supra. He submits that the Division Bench was not right in its conclusion and it requires reconsideration by a larger Bench. In short the narrow campus of the controversy centres round the following two issues.
(a) Whether the direction issued by the political Party or Aghadi will have the legal force, to, have the consequence of incurring of disqualification in the event of breach of that direction? and,
(b) Whether such direction should emanate from the leader of the Municipal party to have such, a legal consequence as mentioned in (a) above?.
Before addressing these two questions and appreciating the arguments of counsel appearing on both the sides, we have to deal with certain relevant facts, necessary for the purpose of this case, as disclosed from the order impugned in the writ petitions.
6. Janata Aghadi had 12 elected Councillors in the Vita Municipal Council and the Vikas Aghadi had 7. It has been claimed that the respondent No. 1 is the leader of the Aghadi and also the leader of the municipal Party of the Janata Aghadi. The election to the office of the President of the Council was announced on 9.12.1997, to be held on 16.12.1997, The Janata Aghadi issued a notice to its 12 Councillors to meet on 14.12.1997 to decide on the Presidential candidate. In this meeting, it was decided that the respondent No. 2 would be the official party candidate and that respondent No. 1 would also file nomination as a substitute candidate. The petitioners were present in that meeting. The petitioner in W.P. No. 3274/1998, Shri Vithal Teke filed his nomination paper for this election and he was proposed by the petitioner in W.P. No. 3275/1998 on 15.12.1997. It is alleged that filing of nomination by the petitioner in W.P. No. 3274/1998 was in violation of the direction and the decision taken in the meeting on 14.12.1997. Therefore the party had issued a directive to the petitioners in. W.Ps. Nos. 3274 and 3275 of 1998 to withdraw the nomination form filed by them. When they refused to withdraw the nomination, the party had issued directive (whip) to all the 12 Councillors to vote in favour of the respondent No. 2 in the elections to be held on 16.12.1997. It is alleged that the said direction was issued and served on all the concerned Municipal Councillors belonging to Janata Aghadi on 15.12.1997. Nevertheless, the petitioner Vithal Dhondiram Teke did not withdraw his nomination. Though an objection was raised at the time of scrutiny, that was ruled out. After the voting, the petitioner Shri Vithal Teke was declared to be the winning candidate having secured 10 votes and respondent No. 2 was defeated in the election having secured only 9 votes. It is disclosed from the averments that a meeting was immediately held and the action of the petitioner Vithal Teke was considered and condonation of their action was refused as contemplated under the provisions of the Act. Therefore, according to the respondents, the petitioners incurred the disqualification, being members of the Municipal Council and, therefore, the aforementioned petition before the Collector, Sangli was filed by the respondents.
7. As we noted above, out of the aforesaid two issues, we would like to take up for discussion the first issue on which there was a. heated discussion and much heat has been emitted by the counsel on both sides during their arguments charged with passion and prudence. The learned Counsel appearing for the petitioner Vithal Teke, Shri Anturkar has contended that the so called directive cannot be considered as one issued by the political party, or Janata Aghadi. He brought to our notice the relevant provisions of the Act. He also brought to our notice that the document No. 20 which was pressed into service before the Collector for having taken the decision by the party. Document No. 20 is the Minutes of the meeting held on 14.12.1997. Two objections were raised by Shri Anturkar with regard to this meeting. They are, (i) this was not a meeting of the Janata Aghadi party and, therefore, the decision is not binding on the petitioners, and that (ii) the person in favour of whom, the authorization was issued, by this meeting had in fact no authority to issue Whip. Dwelling upon the first point, he argued that the meeting, as evidenced by document No. 20 as disclosed in the opening para, was a meeting of Councillors and workers of Janata Aghadi. He questions whether Councillors and workers constitute the Janata Aghadi so as to take a decision under Section 3 of the Act.
8. Even before the Collector and before us, as well, there is no material to show that this was valid meeting of Janata Aghadi party. In this connection it is relevant to note that even though Section 3 speaks of a political party or Aghadi or front, nowhere in the provision of the Act the words “political party” have been defined. Even the 10th Schedule of the Constitution which give rise to the present legislation, has not defined the words “political party”. Supposing we substitute the words “political party” for Aghadi for the purpose of the Act, Section (2)(a) defines Aghadi or front means a group of person, who have formed, themselves into party(emphasis supplied) Here italicised for the purpose of setting up candidates for election to local authority. Going by this definition a group of persons can form a party or Aghadi. The word ‘form’, as per dictionary meaning, can be used as noun or verb. As we see here the word ‘form’ is used as a verb. As per the Oxford Dictionary ‘form’ means make or fashion into a certain shape, or take a certain shape or bring or be brought into certain arrangement or formation etc. so, what is deducible from the dictionary meaning is that any formation has to assume certain shape.
9. The next question is as to how a political party is said to come to a certain shape. It is only common sense that a shape of a political party or form of a political party can be demonstrate only through its constitution or by-laws. Such a document would declare the shape of political party or Aghadi, its philosophy if any, its hierarchical character of leadership, its decision making procedures, character of its apex body etc. Maharashtra Local Authority Members Disqualification Rules, 1987, particularly, Rule 3(1)(b) and (c) enjoins to have such rules or regulations, atleast with respect ‘ to ‘Municipal Party’. As we observed earlier neither before the Collector nor before us the by-laws of Janata Aghadi have been produced. In the absence of such an important document, one cannot claim that the document No. 20, which was adopted in the meeting held on 14.12.1997, contain any binding directive as contemplated under Section 3 of the Act, unless it is shown that the said meeting is in conformity with the bye-laws, or Constitution, it cannot be said to be a meeting of Janata Aghadi at all. Based on this rationale, we have to consider the contention of the learned Counsel for the petitioner. As we noted earlier, the said meeting held on 14.12.1997 was attended by the workers and the Councillors. Evidentally, there is hardly any material or evidence to show that these workers and Councillors constitute political party and have the authority to issue direction to the Councillors to act in a particular manner. This problem would have been answered, had there been a by-law or the constitution of Janata Aghadi produced before the Collector. In the absence of this valid material, we have to accept the contention of the learned Counsel for the petitioner that the meeting held on 14.12.1997 cannot be treated as a meeting of Janata Aghadi party to bind the Councillors.
10. The other objection of Shri Anturkar is that even if it is assumed that it is a meeting of Aghadi party the communication of the direction has not been done by the person authorized by the party in that meeting. As we have held that in the absence of any cogent material to prove that the meeting was a valid meeting of the Janata Aghadi, we think it is a secondary question whether the communication has been intimated by the proper authority or proper person. Document No. 6 is styled as whip (Aghadi Nirdesh) and stated that one should vote for the Presidential candidate Shri Nandkumar B. Patil respondent No. 2. This was signed by Shri Sadashivrao H. Patil respondent No. 1. The document No. 8 which is styled as whip is signed by two persons, Shri Sadashivrao Patil respondent No. 1 and Shri Hanumantrao Patil and this whip is only a direction to petitioner Vithal Teke to withdraw. The contention of Shri Kumbhakoni that the Act does not say that the whip should be issued by the Municipal party leader and on the other hand it would suffice to issue a direction by the Aghadi party in view of Section 3, is not sustainable on the ground that there is no evidence before the Collector that proper Aghadi party, has issued the direction, as is evident from document Nos. 6 and 8. In order to bind a party Councillor, it should be established first that the direction had emanated from a Competent Authority. In the factual matrix of this case it is difficult to hold that the direction was issued by a Competent Authority. The burden was heavy on the party who asserted that the document No. 20 was valid and a binding decision, taken by a Competent Authority or body. The burden, in our view, has not been discharged by the respondents.
11. Now coming to the second issue raised by the counsel for the petitioners, it depends upon, mainly, the interpretation of the relevant provisions of the Act namely Sections 3, 4 and 7 of the Act. It may be relevant to refer to the definition clause which defines Councillor ‘Municipal party’, ‘Original political party’ etc. However, we do not think it is necessary for us to go into those sections because, to our advantage the earlier decision of this Court, in Suresh Madhaorao Bhange’s case, cited supra, is in elaborate details and with forensic ability has considered these aspects. This Court, in the said decision, has found that in order to issue a whip, there must be the municipality party (in that case Zilla Parishad party) and that Municipal party leader cap issue the whip in order to have the legal consequence of incurring the disqualification in the event of its breach.
12. We notice that in the aforesaid decision this Court has held that a reading of Section 2(p) with explanation (a) to Section 3 makes it imperative to have a municipal party or Zilla Parishad party or Panchayat party, as the case may be,, for the purpose of carrying out the provisions of the Act. We are in perfect agreement with that decision. We cannot agree with the submission of the learned Addl. Advocate General that for the purpose of some ancillary work, as mentioned in some rules particularly in Rule 3 Sub-clauses (3), (4) and (5) etc. of the Rules, Municipality party and its leader is relevant. The purpose of providing a ‘municipal party’ and its leader, is very clear. The legislature has carefully taken note of and is well aware that in a political party pr a Aghadi as the case may be, many a time split may occur and its leaders are likely to change. There may be rival claims for political leadership. A political party may be divided into 3 or 4 factions and each faction may claim itself to be the original, party. These developments are is innate and inherent in a political party in the Indian context and are bound to have repercussion in the Municipal Party also. Chaos and uncertainty in the political parties may be likely, to be reflected in the functioning of the Municipal Party or Zilla Parishad party also. The legislature seems to have this avowed object and wanted to arrest or control, to some extent, the percolation of such vexed situation in the Municipal Party. The Legislature seems to have been very particular, that such uncertainty should not affect the functioning of the parties in the local authorities like Panchayat, Municipality and Zilla Parishad. With this end in view the explanation to Section 3 has been enacted by the legislature. Reading of the explanation to Section 3 may lead to conclude that as far as the exercise of the whip or direction is concerned, it should be exercised by the municipal party and unless it is exercised by the leader of the Municipal party any political leader howsoever high in status in hierarchy of the political party, he cannot exercise that power and cannot disturb the function of the Councillors. The intention of the legislature is writ large by providing the explanation to Section 3 of the Act and framing of the relevant rules. In other words, in order to incur the disqualification, a Councillor must have acted contrary to the directions issued by the leader of the Municipal party who is the spokesman of the Municipal party. A political party can speak only through him under the scheme of the Act.
13. A question may then arise as to what is the purpose of the words “political party” which occur in Section 3. According to us, it is only for identifying the municipal party or Panchayat party, as the case may be. The said section only recognizes the fact that in India, the democratic governance articulates only through political parties having political or social philosophy. It also recognizes the grouping of individuals for achieving common political or social objects. Candidates are set up for election by the Aghadi and after the election they will be identified as having belonged to that Aghadi or party. For that purpose the words “political party” appear in Section 3. But for all practical purposes, the functions and responsibilities which are to be discharged under this Act have to be exercised by the municipal party and its leader. This view seems to be quite consistent with the provision contained in the 10th Schedule of the Constitution of India also. There also the words “legislature party” are not defined. It is significant to note that the words “political party” are not defined in the 10th Schedule to the constitution also. In an ideal situation a leader of the political party may direct the Municipal party or its leader to act in a particular manner, but in order to have the legal effect of such a direction, it should have issued by the municipal party leader. This is very clear from the observations of the Division Bench of this Court in the case Of Suresh Madhaorao Bhange (cited supra). In para 10, with reference to Section 3, this Court held thus:
It means group consisting of all the members of the Zilla Parishad for the time being belonging to that political party in accordance with the said Explanation. The reading of the definition shows that the Zilla Parishad Party’ means a group consisting of all the members of the Zilla Parishad for the time being belonging to that political party. The definition proceeds on the assumption that there is a group consisting of all the members of the Zilla Parishad for the time being belonging to that political party. It thus contemplates the factual existence of the group belonging to that political party. Explanation to Section 3 creates a fiction in as much as it lays down that a person elected as a Councillor, or as the case may be a member, shall be deemed to belong to the political party or aghadi or Front, if any, by which he was set up as a candidate or election as such Councillor or member. Thus reading Section 2(p) along with Explanation (a) to Section 3 leads to the inevitable conclusion that factual existence of a group consisting of all the members of the Zilla Parishad for the time being belonging to that political party is envisaged and once this factual existence is there, the fiction helps in recognizing the character of that group. Thus what the definition contemplates is the factual existence of the group belonging to the political party on the day when the disqualification flowing from Section 3 occurs.
(emphasis supplied) Here italicized.
14. In para 14 of the judgment in Suresh Madhaorao Bhange’s case this Court further observes as follows:
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 want 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 elected 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.
The Division Bench of this Court also considered the relevant rules and found that its conclusion was fortified by the rules also, we do fully endorse the interpretation given by the Division Bench of this Court in the above case with regard to the relevant provisions of the Act and we cannot accept the contention of the learned Addl. Advocate General to take a different view.
15. After dealing with the main issues, in this case we have to deal with certain submissions made by Shri Oka, learned Counsel for respondents Nos. 2 and 3. Relying on the decision of the Supreme Court in the case of Kihoto Hollohan v. Zachillhu , he submits that this Court is not expected to embark upon the judicial scrutiny of the order impugned in this case which is passed by the Collector. According to the counsel, under the scheme of the Act, Collector has been placed at par with the Speaker of the Legislative Assembly. He has pointed out that in the above decision the Speaker’s decision is held to be non justifiable and likewise Collector’s decision also is not liable to judicial scrutiny. Therefore he submits that the writ petition is liable to be dismissed on that ground. We cannot agree with this submission. Referring to the Kihoto Hollohan, in a subsequent decision, in Ravi Naik v. Union of Indian , the Supreme Court has explained the case of Kihoto Hollohan. Supreme Court in para 18 held thus:
Moreover, the field of judicial review in respect of the orders passed by the Speaker under sub-paragraph (1) of paragraph 6 as construed by this Court in Kihoto Hollohan’s case (supra) is confined to breaches of the constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity.
As observed by the Supreme Court, the Court can interfere when the exercise of the power of the Speaker is mala fide, or suffers from non-compliance with the rules of natural justice and perversity. It is therefore to be held that Collector’s order impugned is justiciable and subject to judicial, scrutiny by this Court in exercise of its powers under Article 226 of the Constitution of India, when there is perversity in appreciating the facts of the case.
16. Here, we find that the Collector was proceeding on the basis that the meeting held on 14.12.1997 was the meeting of the political party and, therefore, a decision taken in that meeting was binding. We have noted earlier that the respondents have not established, nor did the Collector take up the responsibility to find out whether such meeting was authorized to be called as a meeting of the political party as envisaged Under Section 3 of the Act. Therefore the very approach of the Collector was basically wrong and it has resulted in miscarriage of justice and is unreasonable.
17. We notice, on the other hand the finding of the Collector that the Municipal Party had never met independently and taken a decision about casting vote in the presidential election. Collector also noted that the leader of the Municipal party had not signed form No. 1 as envisaged under Rule 3(1)(a), The Collector also had found that the meeting held on 14.12.1997 was attended by the Municipal Councillors and other workers of the party. Collector also did not decide the genuineness of the register produced by the respondents for showing that Municipal Party had elected respondent No. 1 as its leader (Paksha Protod) in the meeting held on 16.12.1996. He brushed aside the said objections stating that it was not a substantial ground to dismiss the petition and it was only an irregularity. Unseating a democratically elected representative from his post is a very serious matter and any authority exercising such power should act carefully and cautiously. Procedural lapses committed by the person who seeks a declaration of disqualification of a member cannot be viewed lightly. Any procedure touching the election, or nullifying the election has to be construed strictly and benefit of doubt should be given to the elected member, because the will of the people was already expressed in favour of such elected representative, to continue him for a particular period and nullifying such expression of the will of the people has to be considered by a Tribunal or a Court as the rearest of rear responsibility and it is unpleasant too. In such context, dividing the objections into irregular or illegal is very dangerous in the gamut of electoral law. Having arrived at a finding on the factual position of the meeting held on 14.12.1997, it was quite illegal on the part of the Collector to hold that the decision taken in the meeting will operate as a direction to the Municipal Party, the violation of which results in disqualification of the petitioners. We are unable to justify the order passed by the Collector both on the facts and on the law. We think it appropriate to sum up this decision by refering to an observation of Hon’ble Shri K.I. Thomas, J. in Mayavati v. Markandeya Chand and Ors. J.T. 1998 (7) 36, and in para 98 it has been observed thus:
We will not say that rules of procedure are on par with the constitutional mandate incorporated in the Xth Schedule of the constitution. Nonetheless, the procedure prescribed in the Disqualification Rules are meant to be followed for the purpose for which they are made. It is by virtue of the authority conferred by the Xth Schedule that Disqualification Rules are formulated” for giving effect to the provisions of this Schedule”. What would have happened if the Rules have not been formulated as enjoined by Paragraph 8 of the Xth Schedule? The provisions of the Xth Schedule would remain ineffective. So the Rules cannot be read in isolation from the provisions of the Xth Schedule, instead they must be read as part of it. Of course, mere violation of a Rule is not enough to constitute violation of the provisions of the Xth Schedule. When a certain procedure is required by the Rules to be adopted for giving effect to the provisions of the Constitution, the non adoption of the procedure cannot be sidelined altogether as a mere procedure and of no consequence. Compliance or non-compliance with the Rules of procedure would very much help the authorities to decide whether there was violation of the constitutional provision envisaged in the Xth Schedule.
18. In view of the above discussions, we have to conclude that no valid whip was issued in this case and therefore the breach of such a whip produces no legal consequences. Resultantly, the declaration issued by the Collector that the petitioners are disqualified for being continued as members of the Vita municipality is liable to be set aside. We do so, we further declare that the petitioners are continuing as the Councillors of the Vita Municipal Council as such without any interruption.
19. In the result, the writ petitions are allowed. The rule is made absolute in terms of prayer Clause (b).
Prayer Clause (b):
That by an appropriate writ, order or direction this Hon’ble Court be pleased to quash arid set aside the impugned judgment and order dated 22.6.1998 passed by the learned Collector Sangli, i.e. Respondent 1 No. 9 herein, in Municipal Case No. 27 of 1997 and further be pleased to dismiss the disqualification petition numbered as Municipal Case No. 27 of 1997, filed by the Respondents Nos. 1 to 3 with costs throughout.
20. In the circumstances there is no order as to costs. We direct the A.G.P. to communicate this order forthwith to the concerned authorities.
21. At this stage the learned Counsel for the respondents have made applications in writing being Civil Applications Nos. 36335, 36336 and 36337 to grant stay of our judgment. The counsel for the Petitioners opposed this request. It is disclosed that the vacancies occurred consequent on the passing of the impugned order are going to be filled up by a by-election which was notified to be held on 1.11.1998. Since we are inclined to grant stay of our judgment, it has become necessary to stay the election which is scheduled to be held on 1.11.1998.
22. In view of this the applications are disposed of accordingly and there shall be an order granting relief in terms of prayer Clauses (b) and (c) of the Civil Application.
Prayer Clause (b):
The effect, operation and implementation of the judgment and order delivered today by this Hon’ble Court, (Coram A.V. Savant and T.K. Chandrashekhara Das, JJ.) in the Orig. Writ Petition No. 3274 of 1998 may kindly be stayed for a period of six weeks from today.
Prayer Clause (c):
The Election Programme published by the Opponent State Election Commission, Maharashtra Exh. 1 to this Civil Application for holding By-election in respect of Ward Nos. 2, 10 and 17 of Vita Municipal Council District Sangli may kindly be stayed for the same period of six weeks from today.
23. C.C. expedited.