# 15 (ADDL.) S.C.R. 1083 KEDAR SHASHIKANT DESHPANDE ETC. ETC v. BHOR MUNICIPAL COUNCIL AND ORS. ETC. ETC

- **Citation:** [2010] 15 S.C.R. 1083
- **Court:** Supreme Court of India
- **Decided:** 2010-12-10
- **Case number:** Civil Appeal Nos.10452-10457 of 2010
- **Bench:** J.M. Panchal, Gyan Sudha Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/15-addl-s-c-r-1083-kedar-shashikant-deshpande-etc-etc-v-bhor-municipal-council-26725
- **Pages:** 43

## Headnote

A
B
Maharashtra Local Authority Members Disqualification
Act, 1986 - s3(1)(a) - Disqualification petition - Appellants
had contested the Municipal Council elections as candidates C
of NCP political party and were elected as Councillors -
Subsequently, they left NCP and formed another political party
- Disqualification petition against appellants on the ground
that they had defected from NCP and had incurred
disqualification under s.3(1)(a) - Plea of appellants that they
D
would not be liable to disqualification in view of sub-Section(1)
of s.5 because their political party or their Front viz., the
Sanghathana had merged with another political party namely
Congress (I) -
Held: The plea of merger has not been
specifically taken anywhere in the pleadings by the appellants
E
- S.5 contemplates the merger of the original political party
or Aghadi or Front with another political party or Aghadi or
Front and by virtue of such merger if a Member of the original
political party becomes a Member of the such other political
party then he can avail protection under s.5 of the Act from
disqualification under s.3 -
The original party of the
appellants was NCP - It is not the case of the appellants that
their original party NCP had merged with another political party
viz., Congress (I) at ariy point of time - Therefore, provisions
F
of s.5 are not attracted to the facts of the instant case and,
G
plea based on merger cannot be accepted - It is admitted by
the appellants themselves that they had left NCP party -
s. 3(1 )(a) without any qualification or rider provides that a
councillor or a member belonging to any political party or
1083
H
1084 SUPREM= COU~T REPORTS [2010] 15 (ADDL.) S.C R.
A aghadi or front shall be disqualified, if he has voluntarily given
up his membership of such political patty or aghadi or front
- The provisions are absolute in terms and are mandatory -
The mandate given by the legislature cannot be ignored by
t,'?e Coutt - The legal effect of proved and admitted tacts is
B that the appellants h::.ld incurred disqualification in terms of
s.3(1 )(a) -Also, the evidence on record shows that a whip was
issued to the appellants and other members of the NCP by
Pratod of NCP, requiring them not to vote in favour of any
resolution or motion for removal of the President and Vice
C President of the Municipal Council and not to sign any
requisition for calling meeting for the removal of the President
and the Vice President - The whip which was published in the
newspaper forms patt of the record - Despite the whip, the
appellants had not only signed the requisition requesting the
0
Collector to call a meeting for consideration of no confidence
motion against the President but had also in fact voted in
favour of the said motion -
Since the appellants had
disobeyed the whip issued, the appellants had also incurred
disqualification in terms of s.3(1)(b).
E
s.2(b) - Jurisdiction of Additional Collector to entettain
disqualification petition - Held: Additional Collectors are
delegated powers of Collectors under the Maharashtra Land
Revenue Code as well as under any law for the time being in
force - No doubt Maharashtra Local Authority Members'
F Disqualification Act, 1986 is a law for the time being in force
- Therefore, in the instant case the Additional Collector, Pune
was competent to entertain, hear and decide the
disqualification petition filed by the respondents - Not correct
to say that the Additional Collector had no jurisdiction to
I G entettain the disqualification petition filed by the respondents
because he is not Collector within the meaning of s.2(b) of
the Act - Maharashtra Land Revenue Code, ·f966 -s.13(3)
- Notification No.PWR4983175289(103)-L-2 dated 24.3.1967.
H
KEDAR SHASHIKANT DESHPANDE ETC. v. SHOR 1085
MUNICIPAL COUNCIL
Maharashtra Local Authority Members Disqualification
A
Rules, 1987:
Rules 6(3) and 6(4): Verification of disqualification
petition - Defect in - Held: Is curable - Rules 6(3) and 6(4)
are director

## Text

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[2010] 15 (ADDL.) S.C.R. 1083
KEDAR SHASHIKANT DESHPANDE ETC. ETC.
v.
BHOR MUNICIPAL COUNCIL AND ORS. ETC. ETC.
(Civil Appeal Nos.10452-10457 of 2010)
DECEMBER 10, 2010
[J.M. PANCHAL AND GYAN SUDHA MISRA, JJ.]
A
B
Maharashtra Local Authority Members Disqualification
Act, 1986 - s3(1)(a) - Disqualification petition - Appellants
had contested the Municipal Council elections as candidates C
of NCP political party and were elected as Councillors -
Subsequently, they left NCP and formed another political party
- Disqualification petition against appellants on the ground
that they had defected from NCP and had incurred
disqualification under s.3(1)(a) - Plea of appellants that they
D
would not be liable to disqualification in view of sub-Section(1)
of s.5 because their political party or their Front viz., the
Sanghathana had merged with another political party namely
Congress (I) -
Held: The plea of merger has not been
specifically taken anywhere in the pleadings by the appellants
E
- S.5 contemplates the merger of the original political party
or Aghadi or Front with another political party or Aghadi or
Front and by virtue of such merger if a Member of the original
political party becomes a Member of the such other political
party then he can avail protection under s.5 of the Act from
disqualification under s.3 -
The original party of the
appellants was NCP - It is not the case of the appellants that
their original party NCP had merged with another political party
viz., Congress (I) at ariy point of time - Therefore, provisions
F
of s.5 are not attracted to the facts of the instant case and,
G
plea based on merger cannot be accepted - It is admitted by
the appellants themselves that they had left NCP party -
s. 3(1 )(a) without any qualification or rider provides that a
councillor or a member belonging to any political party or
1083
H
1084 SUPREM= COU~T REPORTS [2010] 15 (ADDL.) S.C R.
A aghadi or front shall be disqualified, if he has voluntarily given
up his membership of such political patty or aghadi or front
- The provisions are absolute in terms and are mandatory -
The mandate given by the legislature cannot be ignored by
t,'?e Coutt - The legal effect of proved and admitted tacts is
B that the appellants h::.ld incurred disqualification in terms of
s.3(1 )(a) -Also, the evidence on record shows that a whip was
issued to the appellants and other members of the NCP by
Pratod of NCP, requiring them not to vote in favour of any
resolution or motion for removal of the President and Vice
C President of the Municipal Council and not to sign any
requisition for calling meeting for the removal of the President
and the Vice President - The whip which was published in the
newspaper forms patt of the record - Despite the whip, the
appellants had not only signed the requisition requesting the
0
Collector to call a meeting for consideration of no confidence
motion against the President but had also in fact voted in
favour of the said motion -
Since the appellants had
disobeyed the whip issued, the appellants had also incurred
disqualification in terms of s.3(1)(b).
E
s.2(b) - Jurisdiction of Additional Collector to entettain
disqualification petition - Held: Additional Collectors are
delegated powers of Collectors under the Maharashtra Land
Revenue Code as well as under any law for the time being in
force - No doubt Maharashtra Local Authority Members'
F Disqualification Act, 1986 is a law for the time being in force
- Therefore, in the instant case the Additional Collector, Pune
was competent to entertain, hear and decide the
disqualification petition filed by the respondents - Not correct
to say that the Additional Collector had no jurisdiction to
I G entettain the disqualification petition filed by the respondents
because he is not Collector within the meaning of s.2(b) of
the Act - Maharashtra Land Revenue Code, ·f966 -s.13(3)
- Notification No.PWR4983175289(103)-L-2 dated 24.3.1967.
H
KEDAR SHASHIKANT DESHPANDE ETC. v. SHOR 1085
MUNICIPAL COUNCIL
Maharashtra Local Authority Members Disqualification
A
Rules, 1987:
Rules 6(3) and 6(4): Verification of disqualification
petition - Defect in - Held: Is curable - Rules 6(3) and 6(4)
are directory in nature - Defect in verification does not affect
8
the jurisdiction of the Collector to entertain and decide a
disqualification petition - It would be a wrong exercise of
discretionary powers to dismiss a petition for disqualification
on the sole ground of defect in verification - Normally when
such defects are noticed the applicant should be called upon
C
to remove such lacuna - On facts, the appellants a/so failed
to point out that failure on the part of the respondents to verify
the annex11res at the time of filing of the disqualification
petition and permission granted by the Additional Collector
to the respondents to verify annexures had caused any kind
of prejudice to them - Non-compliance with Rule 6(4) and
D
6(3) at the initial stage did not vitiate the disqualification
petition nor affected the jurisdiction of the Additional Collector
to decide the same - Code of Civil Procedure, 1908 - s. 99.
Rules 6(3) and 6(4): Disqualification petition -
E
Permission for verification - Hearing to the non-petitioner -
Held: Verification of disqualification petition and/or annexures
accompanying the petition is a matter between the person(s)
who filed disqualification petition and the competent authority
before whom the election petition was listed for hearing - It is
F
not necessary for the competent authority to hear the nonpetitioner in the disqualification petition before granting
permission to the petitioner to verify the disqualification
petition and/or annexures accompanying the petition.
Rules 4 and 5 - Information furnished by Councillor -
G
Form-I, Form-I/I and/or publication of information in the Official
Gazette - Held: These forms and publication in the Official
Gazette have merely an evidentiary value which would prima
facie establish that a Councillor belongs to a particular
political affiliation and nothing more.
H
1086 SUPREME COURT REPORTS (201 OJ 15 (ADDL.) S.C.R.
A
Constitution of India, 1950:
Article 136 - New plea - Held: If a person has submitted
to the jurisdiction of a Authority, he cannot challenge the
proceedings before such authority, on ground of lack of
8 jurisdiction of said authority in further appellate proceedings
- On facts, appellants had submitted to the jurisdiction of the
Additional Collector and participated in proceedings before
the Additional Collector without any reservation - After having
lost befnre the Additional Collector, appellants cannot turn
C round and challenge the jurisdiction of the Additional Collector
for the first time in appeals filed under Article 136 of the
Constitution.
Administrative Law -
Order passed by authority -
Challenge to, on ground that while passing order, the authority
D quoted wrong provision of statute - Held: Merely quoting
wrong provisions of the statute while exercising power would
not invalidate the order passed by the authority, if it is shown
that such order could be passed under other provisions of the
statute.
E
The appellants had contested the Municipal Council
elections in Bhor Municipal Council, Pune, as candidates
of NCP political party and were elected as Councillors.
After election of President and Vice President of Bhor
Municipal Council, the appellants left NCP and formed
F another political party- Bhor Shahar Vikas Swabhimani
Sanghathana.
Respondent Nos. 4 and 5 filed disqualification
petition against the appellants for a declaration that they
G had defected from NCP and had incurred disqualification
under Section 3(1 )(a) of Maharashtra Local Authority
Members Disqualification Act, 1986. The contents of the
petition were verified before Notary only. An affidavit in
support of the petition as per the requirements under
H
KEDAR SHASHIKANT DESHPANDE ETC. v. BHOR 1087
MUNICIPAL COUNCIL
CPC was not filed. When the disqualification petition was
A
listed before the Additional Collector, Pune, both
respondent nos. 4 and 5 were absent and therefore the
matter was adjourned. However, on the same day after
departure of the appellants, an application was filed on
behalf of the respondents seeking permission to verify
B
the documents filed along with the Petition. The Additional
Collector, Pune granted the permission as prayed for, and
iater passed order disqualifying the appellants as
councillors of the Sanghathana. Aggrieved, the
appellants filed writ petitions before the High Court. The c
High Court dismissed the petitions.
In the instant appeals, it was contended by the
appellants that the disqualification petition filed by
respondents Nos. 4 and 5 before the Collector was not
verified in accordance with Rule 6(4) and 6(3) of the
D
Maharashtra Local Authority Members Disqualification
Rules, 1987 and, therefore, the same should have been
dismissed in limine; that the Additional Collector had
permitted respondent Nos.4 and 5 to verify the petition
behind the back of the appellants and thereby committed
E
illegality; that the Additional Collector had no jurisdiction
to entertain and decide the disqualification petition since
he was not the Collector within the meaning of Section
2(b) of the Act.
Dismissing the appeals, the Court
F
HELD:1.1. Rule 6(4) of the Maharashtra Local
Authority Members Disqualification Rules, 1987 deals
with verification of disqualification petition and
annexures thereto. A bare reading of Rule 6(4) and Rule
G
6(3) makes it abundantly clear that these provisions are
directory in nature and defect in verification of the petition
is curable. The requirement of Rule 6(3) and 6(4) of the
Rules is that the petition shall contain a concise
H
1088 SUPREME COURT REPORTS [201 OJ 15 (ADDL.) S.C.R.
A statement of material facts on which the petitioner relies
and it shall be accompanied by copies of the
documentary evidence if any on which the petitioner
relies. If the petitioner relies on any information furnished
to him by any person, the statement containing names
B and addresses of such person and existence of such
information as furnished by such person as well as any
annexure thereto signed by the petitioner and verified in
the manner laid down in the Code of Civil procedure for
verification of the pleadings is to be incorporated.
c Further, the defect in verification does not affect the
jurisdiction of the Collector to entertain and decide a
disqualification petition. [Para 7] [1104-0-E; 1105-8-D]
1.2. The claim of the appellants that before granting
permission to the respondents to verify the annexures,
D the appellants should have been heard and, therefore,
verification of the annexures should be regarded as no
verification in the eyes of law cannot be accepted.
Verification of the disqualification petition and/or
annexures accompanying the petition is a matter
E between the persons who filed disqualification petition
and the competent authority before whom the Election
Petition was listed for hearing. Having regard to the
scheme envisaged by the Rules, it was not necessary for
the competent authority to hear the appellants in the
F disqualification petition before granting permission to
respondent Nos. 4 and 5 to verify the disqualification
petition and/or annexures accompanying the petition.
Section 99 of the CPC or in any view of the matter, the
principle analogous thereto protects the validity of the
G proceedings from such irregularities. The said Section
inter-alia provides that no decree shall be reversed or
substantially varied, nor shall any case be remanded
inter-alia on account of any error, defect or-irregularity in
any proceeding not affecting the merits of the case. The
H
KEDAR SHASHIKANT DESHPANDE ETC. v. BHOR 1089
MUNICIPAL COUNCIL
so-called irregularity regarding verification of the petition
A
and annexures thereto would never affect the merits of
the case. It would be a wrong exercise of discretionary
powers to dismiss a petition for disqualification on the
sole ground of defect in verification. Normally when such
defects are noticed the applicant should be called upon
B
to remove such lacuna. [Para 12] [1108-B-H]
1.3. Further, the appellants have failed to point out
that failure on the part of the respondents to verify the
annexures at the time of filing of the petition and
C
permission granted by the Additional Collector to the
respondents to verify annexures has caused any kind of
prejudice to them. On the facts and in the circums.tances
of the case, non-compliance with Rule 6(4) and 6(3) of
the Rules at the initial stage by the respondents did not
vitiate the disqualification petition nor affected the
D
jurisdiction of the Additional Collector to decide the same.
[Para 13] [1109-A-C]
Murarka Radhey Shyam Ram Kumar v. Roop Singh
Rathore (1964) 3 SCR 573; Ch. Subbarao v. Member,
Election Tribunal, Hyderabad (1964) 6 SCR 213 - followed.
H.D. Revanna v. G. Puttaswamy Gowda and others AIR
(1999) SC 768; K. M. Mani vs. P.J. Antony (1979) 2 SCC 221;
F.A. Sapa v. Singora (1991) 3 SCC 375; Or. Mahachandra
Prasad Singh v. Chairman, Bihar Legislative Council and
Others (2004) 8 sec 747 - relied on.
2.1. The contention that the Additional Collector had
E
F
no jurisdiction to entertain and decide the disqualification
petition filed by the respondents because he is not the
G
Collector within the meaning of Section 2(b) of the Act
has no substance, and was never raised before the
Additional Collector who decided the disqualification
petition nor before the High Court. Whether Additional
Collector had jurisdiction to entertain and decide the
H
1090 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A disqualification petition filed by the respondents and
whether there was statutory delegation in favour of the
Additional Collector in terms of Section 13(3) of the
Maharashtra Land Revenue Code, is a question of fact.
Therefore, the appellants cannot be permitted to argue for
B the first time before this Court the point that Additional
Collector had no jurisdiction to entertain the
disqualification petition filed by the respondents. Even
otherwise, the record clinchingly showed that the
appellants had submitted to the jurisdiction of the
c Additional Collector and participated in the proceedings
before the Additional Collector without any reservation.
Therefore, having lost before the Additional Collector,
they car:mot turn round and challenge the jurisdiction of
the Additional Collector for the first time in the appeals
0 filed under Article 136 of the Constitution. It is wen settled
that if a person has submitted to the jurisdiction of the
'Authority, he cannot challenge the proceedings, on the
ground of lack of jurisdiction of said authority in further
appellate proceedings. Had this plea, been raised before
the Additional Collector, the respondents would have got
E the opportunity to place on record notification issued
under the provisions of Maharashtra Land Revenue
Code, 1966 to establish that the Additional Collector was
delegated the powers of the Collector and was competent
to decide the disqualification petition. [Para 14] [1109-C- ·
F H; 1110-A-D]
2.2.
A
meaningful reading of Notification
No.PWR4983/75289(103)-L-2 dated 24.3.1967 issued
under sub-section (3) of Section 13 of the Maharashtra
G Land Revenue Code, 1966 makes it clear that the
Additional Collectors are delegated powers of Collectors
under the Maharashtra Land Revenue Code, 1966 as well
as under any law for the time being in force. There is no
manner of doubt that the Maharashtra Local Authority
H Members' Disqualification Act, 1986 is a law for the time
KEDAR SHAS~IKANT DESHPANDE ETC. v. SHOR 1091
MUNICIPAL COUNCIL
being in force. Therefore, in this case the Additional
A
Collector, Pune was competent to entertain, hear and
decide the disqualificatio1;1 petition filed by the
respondents. Thus, it is not correct to say that the
Additional Collector had no jurisdiction to entertain the
disqualification petition filed by the respondents because s
he is not Collector within the meaning of Section 2(b) of
the Act. [Para 14] [1111-D-F]
Remington Rand of India Ltd. v. Thiru R. Jambulingam
(1975) 3 sec 254 - relied on.
c
3. Even otherwise, the issue of disqualification
cannot and should not remain undecided due to any
reason whatsoever as it involves issues of public
importance and not merely private rights and, therefore,
this Court can itself, adjudicate upon and decide the
D
same. [Para 15] [1111-G]
Rajendra Singh Rana & Ors. v. Swami Prasad Maurya
& ors. (2007) 4 sec 270 - relied on.
4. The argument that the appellants would not be
E
liable to disqualification in view of sub-Section(1) of
Section 5 because their political party or their Front viz.,
the Sanghathana had merged with another political party
namely Congress (I), is thoroughly misconceived and
liable to be rejected. The plea of merger has not been
F
specifically taken anywhere in the pleadings by the
. appellants, though, in the pleadings there was a
reference to Section 5 of the Act. The appellants have
failed to furnish relevant details, such as, when their
Front or a Aghadi merged with the Congress (I) and
G
whether the district President of Congress (I) and/or other
official of Congress (I) had agreed to the merger of the
front of the appellants with Congress (I) etc. The
pleadings of the appellants before the Additional
Collector and the High Court, in fact suggested a split of H
1092 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A the appellants from their original political party i.e. NCP.
The appellants had throughout contended that they had
voluntarily separated from NCP and formed a separate
Group/Aghadi/Front. There was no mention of split in the
NCP or appellants joining the Congress (I) party. The
· B clause relating to split is deleted from the provisions of
the Act of 1986 and is no longer available as defence in
the matter of disqualification. Even otherwise also, the
plea of appellants that their front had merged with
Congress (I) has no factual basis. There is nothing on the
C record to indicate that Congress (I) party had permitted
the front of the appellants to merge with the said party
nor there is evidence showing that the appellants were
permitted to join Congress (I) party. Section 5 of the Act
contemplates the merger of the original political party or
0 Aghadi or Front with another political party or Aghadi or
Front and by virtue of such merger if a Member of the
original political party becomes a Member of the such
other political party then he can avail the protection under
Section 5 of the Act from disqualification under Section
3 of the Act. In the instant case, the original party of the
E appellants was NCP. It is not the case of the appellants
that their original party NCP had merged with other
political party viz., Congress (I) at any point of time. In this
case what was admitted by the appellants was that they
had separated from their original political party viz., NCP
F and had formed a separate group known as Bhor Shahar
Vikas Swabhimani Sanghathana party. Therefore,
provisions of Section 5 are not attracted to the facts of
the present case and, plea based on merger cannot be
accepted. [Para 17, 18] [1112-G-H; 1113-A-H]
G
H
5. It is admitted by the appellants themselves that
they had left NCP party. Section 3(1 )(a) of the Act without
any qualification or rider provides that a councillor or a
member belonging to any political party or aghadi or front
KEDAR SHASHIKANT DESHPANDE ETC. v. SHOR 1093
MUNICIPAL COUNCIL
shall be disqualified, if he has voluntarily given up his
A
membership of such political party or aghadi or front. The
provisions are absolute in terms and are mandatory. The
mandate given by the legislature cannot be ignored by
ttie Court while hearing appeals arising out of the
petitions filed before the High Court under Articles 226
B
and 227 of the Constitution. The legal effect of proved and
admitted facts is that the appellants had incurred
disqualification in terms of Section 3(1 )(a) of the Act anti;
therefore, ~y are not entitled to any of the reliefs in the
present appeals. [Para 18] [1115-C-H]
c
6.1. The evidence on record shows that before the
six councillors of the Sanghathana along with eight
councillors of Congress (I) had submitted requisition for
no confidence motion against the President, a whip was
issued to the appellants and other members of the NCP
D
by Pratod of NCP, requiring the appellants and others no
to vote in favour of any resolution or motion for removal
f the President and Vice President of the Bhor Municipal
Council and not to sign any requisition for calling mee
ing for the removal of the President and the Vice President. T
E
e assertion made by respondent Nos. 4 and 5 is that the whip wa
sought to be served on the appellants but they had refu
ed to give acknowledgement and, therefore, the said whip was
ublished in the newspaper. There is no manner of doubt
that the Pratod of NCP had sensed that a move was afoot
F
to bring no confidence motion against the President and
Vice President of Bhor Municipal Council by the
appellants who were belonging to NCP, and therefore, it
had become necessary for him to issue whip to the
councillors of NCP to restrain the appellants and others
F
from joining the move for removal of President or Vice
President of the Council. The whip which was published
in the newspaper forms part of the record. Despite the
whip, the appellants had not only signed the requisition
requesting the Collector to call a meeting for
H
•
1094 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.
A consideration of no confidence motion against the
President but had also in fact voted in favour of the said
motion. [Para 20] [1117-F-H; 1118-A-E]
6.Z, Section 3(1 )(b) of the Act makes it more than
8 clear- that a councillor or a member belonging to any
political party or aghadi or front shall be disqualified for
being a councillor or a member if he votes or abstains
from voting in· any meeting of a Municipal Corporation,
municipal Council, Zilla Parishad or, as the case may be,
C Panchayat Samiti contrary to any direction issued by the
political party or aghadi or front to which he belongs.
According to the explanation (a), for the purposes of
Section 3 of the Act, 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
D he was set up as candidate for election as such
councillor or member. The fact that each of the six
appellants was set up as a candidate for election as
councillor of Bnor Municipal Council by NCP is not in
dispute. Therefore, for the purposes of Section 3 of the
t: Act, the appellants will have to be regarded as belonging
to the political party namely NCP. The fact that the
appellants had disobeyed the whip issued ic; not disputed
by them before this Court. Therefore, on the facts and in
the circumstances of the case it is clear that the
F .ippellants had also incurred disqualification in terms of
Section 3(1 )(h) of the Act. [Para 20-21] [1120-A-E]
7. On scrutiny of the record, it becomes evident that
a statement containing the names and addresses uf
G councillors of NCP as prescribed in Form-I was not
published in the Official Gazette. It is true that as per Rule
4 every councillor has to furnish to the Collector a
statement of particulars and declaration in Form-Ill, which
inter-alia, contains the information relating to the political
H party to which the councillor belongs. As per rule 4(3)
KEDAR SHASHIKANT DESHPANDE ETC. v. BHOR 1095
MUNICIPAL COUNCIL
summary of information furnished by the councillor to
A
the Collector has to be published in the Official Gazette.
Further, on a critical study of the provisions of rule 3 read
with rule 4(3) of the Rules, it is evident that neither rule 3
nor rule 4 nor any other rule of the Rules mentions that
a political affiliation of the councillor would come into
B
existence only upon submission of either Form-I, Form111 and/or publication of information in the Official Gazette.
These forms and publication in the Official Gazette have
merely an evidentiary value which would prima facie
establish that a councillor belongs to a particular political c
affiliation and nothing more. The alleged non-availability
of the evidence relating to the political affiliation of the
appellants in the Form-I, Form-Ill and/or publication in the
Official Gazette would not mean that the appellants did
not belong to NCP. Explanation to Section 3 of the Act D
clearly indicates that the councillor belongs to that
political party upon whose ticket the councillor has
contested the election and won the election. Therefore,
the contention based on the alleged breach of Rule (3)
and Rule (4) of the Rules of 1987 has no substance and
cannot be accepted. [Paras 24, 25] [1121-F-H; 1122-A-E]
E
8. The argument that there was total non application
of mind on the part of the Additional Collector in passing
the impugned order of disqualification purporting to
exercise powers under Section 3(1 )(c) of the Act and,
F
therefore, the appeals should be accepted also has no
merits. From the record of the case, it is apparent that the
case of the respondent Nos. 4 & 5 was that the
appellants had incurred disqualification under Section
3(1)(a) when they left NCP. It was never their case that G
the appellants had incurred disqualification under
Section 3(1)(c) of the Act. But Collector by mistake has
mentioned Section 3(1 )(c) in his order dated of which
undue advantage is sought to be taken. In catena of
decisions, this Court has held that merely quoting wrong
H
1096 SUPREME c;:ouRT REPORTS [201 OJ 15 (ADDL.) S.C.R.
A provisions of the statute while exercising power would
not invalidate the order passed by the authority if it is
shown that such order could be passed under other
provisions of the statute. What is important to notice is
that Section 3 (1) (c) of the Act inter-alia provides that a
B "nominated member in relation to a Panchayat Samiti
includes an associate member, referred to in Clause (c)
of sub-Section (1) of Section 57 of the Maharashtra Zilla
Parishads and Parichayat Samitis Act 1951." It is not the·
case of the appellants that they are either associate
C members or nominated members in relation to Bhor
Municipal Council. Thus reference made by the Collector
to Section 3(1) (c) will have to be regarded as mistake on
his part because of difference in Vernacular and English
version of the Act of 1986. The Maharashtra Local
0 Authority Members Disqualification Act, 1986 is basically
in vernacular language, wherein the Sections are
described as 3 (ka), (kha) & (ga) but in English it is
mentioned as 3(1) (a) (b) and (c). On the facts and in the
circumstances of the case, the appellants had incurred
disqualification under Section 3(1)(a) of the Act as
E pleaded by the respondent Nos.4 & 5 and not under
Section 3(1)(c) of the Act as mentioned by the Collector.
[Paras 26, 27] [1122-F-H; 1123-A-E]
9. The contention that the Court should not interfere
F with the election of the democratically elected candidate
and, therefore, the appeals should be accepted is difficult
to accept. It is true that the Court normally should not
lightly interfere with the election of a democratically
elected candidate. However, here in the instant case the
G appellants had incurred disqualification under the Act.
H
The question of disqualification of the appellants was
raised by respondent Nos. 4 & 5 and, therefore, not only
the Competent Authority under the Act was required to
decide the said question, but this Court also has to
KEDAR SHASHIKANT DESHPANDE ETC. v. BHOR 1097,,
MUNICIPAL COUNCIL
determine the question whether disqualification is
A
incurred by the appellants. If the Court comes to the
conclusion
that the
appellants
had
incurred
disqualification in terms of the provisions of the Act then
the Court has no alternative but to interfere with the
election of the appellants even though they were
B
democratically elected candidates. Merely because they
are democratically elected candidates, it would be wrong
to contend that they can never be disqualified. If such an
interpretation is accepted, it will defeat the object of the
Act, which can not be countenanced. [Para 28] [1123-F- c
H; 1124-A-B]
10. The contention that respondent Nos. 4 & 5 have
acted malafide in co-opting two councillors and in
constituting 5 new committees has also no substance.
There was no stay against co-option of the councillors
D
nor there was stay relating to the constitution of new
committees and therefore action of the respondents of
co-opting of two committees and constituting 5 new
committees cannot be regarded as malafide. Further the
co-option of the 2 councillors and the constitution of 5
E
new committees would not make any impact if the Court
were to rule in favour of the appellants that they had not
incurred disqualification under the Act. Therefore, the
appellants are not entitled to any relief on ground that
respondent Nos. 4 fl. 5 had acted malafide in resorting to
F
co-option of two councillors and constitution of 5 new
committees. [Paras 29, 30] [1124-C-F]
11. The plea that Additional Collector, Pune failed to
exercise jurisdiction vested in him by not deciding the
G
preliminary issue as to maintainability of the
· disqualification petition on the erroneous assumption
that the High Court had directed him to dispose of the
disqualification petition within two weeks and, therefore,
the order of the Additional Collector should be set aside,
H
1098 SUPREME COURT REPORTS [2010) 15 (ADDL.) S.C.R.
A has no substance. From the record, it is evident that one
of the preliminary points raised by the appellants before
the Collector was that Section 5(2) of the Act deals with
merger and in this case merger had taken place and,
therefore, the disqualification petition was not
B maintainable. Section 5 is an exception to Section 3
which deals with merger of an original political party or
aghadi or front with any political party or aghadi or front
and provii:les that in case of such merger, the councillor
or a member should not ~e disqualified under subC Section (1) of Section 3 of the Act. It was never the case
of respondent nos. 4 & 5 that the appellants had formed
a party and that party had merged into Congress (I) party
and had therefore, incurred disqualification. Section 5
speaks of merger of original political party. It is not the
. 0 case of respondent Nos. 4 & 5 that original i;.olitical party
of the appellants namely NCP had merged with any other
political party. Therefore, there w::is nothing to be decided
as preliminary issue for the purpose of ascertaining
whether the disqualification petition filed by the
E respondent Nos. 4 & 5 was maintainable. The Additional .
Collector did not comm1t any error in not deciding so
called preliminary issue relating to maintainability of the
petition and therefore, the appellants are not entitled to
any benefit on the ground that there was failure of
exercise of jurisdiction by Additional Collector. [Para 32]
F [1125-A-F]
Case Law Reference:
AIR (1999) SC 768
relie~ on
Para 8
G
(1964) 3 SCR 573
followed
Para 9
(1964) 6 SCR 213
followed
Para 9
(1979) 2 sec 221
relied on
Para 9
H
(1991) 3 sec 375
relied on
Para 10
KEDAR SHASHIKANT DESHPANDE ETC. v. SHOR 1099
MUNICIPAL COUNCIL
(2004) s sec 747
(1975) 3 sec 254
(2001) 4 sec 210
relied on
relied on
relied on
Para 11
A
Para 14
Para 15
CIVIL APPC:LLATE JURISDICTION : Civil Appeal No.
B
10452-10457 of 2010.
From the Judgment & Order dated 04.02.2010 in Writ·
Petition No. 971 of 2010 and dated 04.02.2010 in Writ Petition
Nos. 964, 965, 966, 967 & 968 of 2010 of High Court of
Judicature at Bombay.
C
Arvind V. Savant, Jayashree Rajkumar Shinde, Ravindra
Keshavrao Adsure for the Appellants.
Shekhar Naphade, Shubhangi Tuli, Gaurav Agrawal,
D'
Shankar Chillarge, Asha G. Nair for the Respondents.
The Judgment of the Court was delivered by
J.M. PANCHAL, J. 1. Leave granted in. each petition.
E
2. These appeals are directed against common juqgment
dated February 4, 2010 rendered by the Division Bench of Hj~h
. Court of Judicature at Bombay in Writ Peti+ion Nos. 964 of
2006 to 968 of 2006 and Writ Petition No. 971 of 2010 by which
the order dated Jan11ary 21, 2010 passed by the :\dditional
Collector, Pune holding that the petitioner in each case is dis
ualified to be a Member of Shor Municipal Council, Taluka Shor,
District Pune, is upheld.
3. The facts emerging from the record of the case are as
F
under: -
G
The general elections for the Shor Municipal Council,
District Pune, which consists of 17 councillors, were held on
June 22, 2008. The result of the election was declared on June
23, 2008 and the same was published· in Maharashtra
H
1100 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A Government Gazette on June 27, 2008. The result of the
election was as under :-
A)
NCP - 8 Councillors
1)
Yashawant Baburao Dal - Petitioner in SLP
B
(C) No.7479/2010.
2)
Manisha Rajkumar Kale
3)
Rajshree Anil Sagle - Petitioner in SLP (C)
c
No. 7481/2010
4)
Vijaya Ananta Ulhalakar - Petitioner in SLP
(C) No.7478/2010
5)
Kedar Shashikant Deshpande - Petitioner in
.
D
SLP (C) No.7477/2010
6)
Jayshree Rajkumar Shinde - Petitioner in
SLP (C) No.7480/2010
7)
Ganesh Anant Pawar
E
8)
Dattatraya Ramchandra Palakar - Petitioner
in SLP (C) No.7482/2010.
B)
Congress (I) - 8 Councillors
F
1)
Kailas Shankar Dhawale
2)
Suvarna Mohan Shinde
3)
Sachin Ashok Harnaskar
G
4)
Truptee Jagadeesh Kirve
5)
Tanaji Sadu Taru
6)
Gajanan Kisan Danawale
H
KEDAR SHASHIKANT DESHPANDE ETC. v. BHOR 1101
MUNICIPAL COUNCIL [J.M. PANCHAL, J.]
7)
Sanjay Dattartraya Jagtap
8)
Shankar Saban Pawar
C)
Independent - 1 Councillor
A
1)
Vittal @ Lahu Ramchandra Shinde
B
The said independent candidate joined NCP immediately
on June 27, 2008.
4. Mr. Yashawant Baburao Dal was appointed as Prated/
Gatneta of NCP on June 27, 2008. The Pratod/Gatneta of C
NCP, Mr. Yashawant Baburao Dal with his signature submitted
the information in Form I as per Rule 3(1)(a) of Maharashtra
Local Authority Members Disqualification Rules, 1987 ('The
Rules', for short) to District Collector stating the names and
addresses of 9 councillors of NCP. All the 9 councillors of NCP
D
also submitted the information in Form Ill as per Rule 4(1) of
the Rules. The election of President and Vice President of Bhor
Municipal Council took place on July 19, 2008. With a 9:8
majority, the NCP candidate Mr. Vittal Shinde was elected as
President whereas Mr. Ganesh Pawar was elected as Vice
EI
President of the Bhor Municipal Council. On December 21,
2009, Mr. Yashawant Dal resigned from the post of Prated/
Gatneta of NCP. The same was accepted and Mr. Ganesh
Pawar was appointed as Prated. On December 22, 2009,
following 6 NCP councillors left NCP and formed Bhor Shahar
F
Vikas Swabhimani Sanghathana ("the Sanghathana" for short):-
1)
Yashawant Baburao Dal
2)
Rajshree Anil Sagle
G
3)
Vijaya Ananta Ulhalakar
4)
Kedar Shashikant Deshpande
5)
Jayshree Rajkumar Shinde
Hi
1102 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A
6)
Dattatraya Ramchandra Palakar
It may be mentioned that Mrs. Jayshree Rajkumar Shinde
was appointed as a Party Prated of the said Sanghathana. On
December 23, 2009 the Pratod/Gatneta of Sanghathana, Mrs.
8 Jayshree Shinde gave a letter to the District Collector informing
the Collector that the Sanghathana was formed. The Prated/
Gatneta also submitted Form I as per Rule 3(1 ){a) of the Rules.
Each of the 6 councillors also submitted Form· Ill as per Rule
4(1) of the Rules. An affidavit sworn by Mr. Yashawant Dal
before Notary on December 21, 2009 was also submitted to
C the District Collector informing the Collector about the formation
of the Sanghathana. On December 29, 2009, 6 councillors of
the Sanghathana and 8 councillors of Congress (I) submitted
requisition to the Collector for 'No Confidence Motion' against
President Mr. Vittal Shinde. On December 30, 2009 the
D Collector issued the agenda for the meeting to be held on
January 6, 2010. The said meeting was held in which 'No
Confidence Motion' with 14:3 votes was passed for removal
of President Mr. Vittal Shinde. The New Prated, Mr. Ganesh
Pawar of NCP, i.e., the respondent No. 4 herein and the
E President of NCP Pune District, i.e., the respondent No. 5
herein Mr. Suresh Ghule filed Disqualification Petition no.25/
2009 against 6 councillors who had formed the Sanghathana,
for a declaration that they had defected from NCP and had
. incurred disqualification under Section 3(1 )(a) of Maharashtra
F Local Authority Members Disqualification Act, 1986 ('The Act',
for Short). The contents of the petition were verified before
Notary only and an affidavit in support of the petition as per the
requirements under CPC was not filed. The Disqualification
Petition was li3ted for the first time on January 4, 2010 when
G by way of oral argument the appellants raised preliminary
objection regarding non-compliance with Rule 6(3) and Rule
6(4) of the Rules and prayed to dismiss the said petition in
limine. Again the Disqualification Petition was listed before the
Additional Collector, Pune on January 8, 2010 when both Mr.
H Ganesh Pawar and Mr. Suresh Ghule were absent and
KEDAR SHASHIKANT DESHPANDE"ETC. v. BHOR 1103
MUNICIPAL COUNCIL [J.M. PANCHAL, J.]
therefore the matter was adjourned to January 12, 2010.
A
However, on the same day after the departure of Mrs. Jayshree
Shinde and Advocate for the appellants Mr. D.S. Patil, the
advocate for the respondents gave an application at about 1.35
P.M. seeking permission to verify the documents filed along
with the Petition i.e. (Exh.A to Exh.I). The Additional Collector,
Pune granted the permission as prayed for. The appellants
claim that before granting the permission to the respondents
to verify the documents filed along with the petition, no notice
was given to the appellants and without hearing the appellants,
B
the respondents were permitted to verify the documents which c
was illegal. On January 11, 2010, Notice for framing of charge
i.e. substance of imputation of disqualification with articles of
charges was issued by the Additional Collector and hearing
was fixed on Januar; 22, 2010. The appellants filed an
application on January 12, 2010 raising preliminary objection
D
stating that there was non-compliance of Rule 6(4) and 6(3) of
the Rules and prayed to dismiss the disqualification petition.
The grievance of the appellants is that the said application was
never decided till the disposal of the main petition. The
respondents filed an affidavit in reply in the said Disqualification
E
Petition on January 19, 2010. The Additional CollectJr Pune
passed final order dated January 21, 2010 in Disqualification
Petition No.25 of 2009 and disqualified the appellants,
retrospectively with eff Pct from January 23, 2010 as councillors
of the Sanghathana.
5. Feeling aggrieved Writ Petition Nos. 964 of 2006 to 968
of 2006 and 971 of 2010 were filed by the appellants before
the High Court challenging the aforesaid order. The High Court
by the impugned judgment dated February 4, 2010 has
dismissed those petitions giving rise to the present appeals.
6. This Court has heard the learned counsel for the parties
· at length and in great detail. This Court has also considered
the documents forming part of the appeals and different
affidavits filed by" the parties.
F
G
H
1104 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.
A
7. The first contention raised by Mr. Arvind V. Savant,
learned senior advocate for the appellants is that the
disqualification petition filed by the respondents Nos. 4 and 5
herein l)efore the Collector was not verified in accordance with
Rule 6(4) and 6(3) of the Rules and, therefore, the same should
B have been dismissed in limine.