Judgment : 1. Rule. Rule made returnable forthwith. With the consent of the learned Counsel appearing for the parties, these Writ Petitions are being disposed of finally by this common Judgment. 2. The petitioner in both Writ Petitions, namely, Sunil Sapadu Mahajan, is admittedly Municipal councillor of Jalgaon Municipal Corporation, Jalgaon(Henceforth referred to as “the Corporation”). Respondent No.1 in both these Petitions is one Manoj Dayaram Choudhari, who is also a Municipal councillor. Both got elected in Corporation Election, which was held on 31st August, 2008. It is common ground that, respondent No.1 was official candidate of a political party by name “Shivsena” for this election and got elected as Official Candidate of Shivsena party. 3. Soon after election, respondent No.1 made declaration to the effect that he belongs to Shivsena Party and filled Form No.4 to that effect. He was the only candidate belonging to Shivsena Party, who was elected. Respondent No.1, then formed “Municipal Party” of Shivsena of which he was the only member. 4. In this election, several candidates of Nationalist Congress Party, a political party, got elected. They too formed a “Municipal Party” of NCP. They elected one Ganesh as their leader in the Corporation. 5. Sometime, prior to 10th September, 2009, respondent No.1 made an application to the NCP Municipal Party and requested them to allow merger of Shivsena Municipal party with that of NCP. On 10th September, 2009, NCP Municipal Party allowed this request in a meeting. Accordingly on 17th September, 2009, the respondent No.1 conveyed the above mentioned information to the Divisional Commissioner. He requested the Divisional Commissioner to record this event as per section 5 of the Maharashtra Local Authority Members Disqualification Act (Hereinafter referred to as “the Act” for short). Similar information was also sent by the leader of the NCP Municipal party to the Divisional Commissioner and requested him to took note of merger of two Municipal Parties. 6. Soon thereafter on 22nd September, 2009, the petitioner moved petition under section 3 of the Act, seeking declaration of the disqualification of respondent No.1, as Councillor of the Corporation before the Divisional Commissioner, Nashik, who after perusal of the same, issued notice to respondent No.1. 7. 6. Soon thereafter on 22nd September, 2009, the petitioner moved petition under section 3 of the Act, seeking declaration of the disqualification of respondent No.1, as Councillor of the Corporation before the Divisional Commissioner, Nashik, who after perusal of the same, issued notice to respondent No.1. 7. Respondent No.1 appeared before the Divisional Commissioner on 06th October, 2009, and requested the Commissioner to adjourn the case, because along with notice a copy of petition and documents annexed to the petition were not received by him. Accordingly, his application for adjournment was allowed. 8. In the meantime, a little prior to 6th October, 2009 election for the state legislative assembly was announced and respondent No.1 filed his nomination for MLA Jalgaon City Constituency, as an independent candidate(although hitherto he belonged Sivsena). The election for such post was scheduled on 13th October, 2009. 9. On 6th October, 2009, the petitioner filed his second petition under section 3 of the Act, seeking disqualification of respondent No.1 on the ground that by filing nomination as an independent candidate he had defected from his original political party. Along with this petition amongst other documents, the petitioner also annexed copy of Form No.7A of assembly election, enumerating list of candidates contesting the said election. In this list, name of respondent No.1 appeared as independent candidate, having given election symbol of “Railway Engine”. 10. On 10th November, 2009, respondent No.1 made two applications in the first petition, and he requested that since second petition is now filed, the first petition filed against him should be dismissed. In the second application, he stated that, the petitioner did not comply with the requirements of the Rule 6 of Maharashtra Local Authority Members Disqualification Rules ( Hereinafter referred to as “the Rules” for short) and so petition should be dismissed. 11. In the second petition, respondent No.1 entered his appearance on 10th November, 2011, and made similar applications mainly saying that the petitioner has not complied with provisions of Rule 6 of the Rules, and so petition should be dismissed. 12. Respondent No.1 did not file his written comments nor he could have file written statement to oppose the petitions. The learned Divisional Commissioner, then heard the submissions on the petitions’ maintainability. It seems that, hearing continued for more than one session and ultimately on 18.01.2010, a detail judgment was delivered by the learned Commissioner and dismissing both the petitions. 12. Respondent No.1 did not file his written comments nor he could have file written statement to oppose the petitions. The learned Divisional Commissioner, then heard the submissions on the petitions’ maintainability. It seems that, hearing continued for more than one session and ultimately on 18.01.2010, a detail judgment was delivered by the learned Commissioner and dismissing both the petitions. 13. The gist of the judgment in Petition No. 05 of 2009 is that, on one hand the learned Divisional Commissioner, since beginning mentioned that he was deciding maintainability of the petition in the light of rules 6 and 7 of the Rules, but on the other hand he also heard submissions made by the learned Advocates appearing for the parties on merits of the case, and ultimately held that since respondent No.1’s Shivsena Municipal party got merged into NCP Municipal Party, respondent No.1 (in view of section 5 of the Act) would not incur qualification. He placed reliance on various judgments of the High Court and the Supreme Court. He mainly placed reliance on the judgment of Division Bench of this Court in the case of Umesh Shrikant Shete Vs. Collector, Ratnagiri, 2009(6) Mh.L.J. 209 . He said, the law laid down in the said ruling applies to the facts of this case. He observed that this was the case of merger of Shivsena Municipal party with NCP Municipal Party, which formed a new front and so provisions of section 3 of the Act will not apply to such merger. He further held that, in view of this findings, the petitioner had failed to make out a case to continue the enquiry further and he preferred to dismiss the petition at the threshold under Sub-rule 2 of Rule 7 of the Rules. 14. In the judgment in Petition No.6 of 2009 the learned Divisional Commissioner, initially proceeded to decide maintainability of the petition, but later-on discussed the merits, as well as various case laws on the subject and recorded his finding that respondent No.1, after merging Shivsena Municipal party with NCP Municipal party, if had contested MLA election of 2009 from Jalgaon City Constituency, as independent candidate, same can at the most be said to be defection from his new political party viz. NCP Party. He said, since such action was not objected by the NCP, the petition should fail at threshold. 15. Mr. NCP Party. He said, since such action was not objected by the NCP, the petition should fail at threshold. 15. Mr. Shah, learned Senior counsel appearing for the petitioner submitted that two facts alleged against respondent No.1, namely, that he chose to merge his so called Shivsena Municipal Party with NCP Municipal party and that he contested MLA election 2009 as an independent candidate are irrefutable, and therefore, do not require further proof. He said, in view of the judgment of the Supreme Court in the case of Dr.Mhachandra Prasad Singh Vs. Chairman Bihar Legislative Council and others 2004 (8) SCC 747 . Both these petitions (Petition Nos. 05 of 2009 and 06 of 2009)filed before Divisional Commissioner deserve to be allowed. He said, the compliance of the rules made under the Act are only directory and in the facts of this case, the learned Divisional Commissioner could not have insisted on their strict compliance. He thirdly submitted that, the proceedings before the Divisional Commissioner were not of adversarial nature and that there was no lis between the petitioner and respondent No.1 on the question as to whether respondent No.1 had incurred disqualification. 16. On the other hand, Mr. Dixit Sr. Counsel appearing for respondent No.1 submitted that learned Divisional Commissioner while examining the maintainability of the petitions could not have discussed the merits of the case. He further submitted that, the learned Divisional Commissioner should have followed the procedure laid down in the rule 7 of the Rules. He submitted that since the procedure was not properly followed, respondent No.1 did not get opportunity to submit his written comments contemplated under rule 7 (4) of the Rules and also his written statement as contemplated under 7(6) of the Rules. He submitted that the allegations made against respondent No.1, mentioned above could not have been held to be proved. 17. Mr. Dixit, also made certain submissions on the merits of the case, which same are mentioned in the later part of the judgment. 18. The rival submissions give rise to following questions: (i) Whether respondent No.1 has incurred disqualification as contemplated by section 3 of the Maharashtra Local Authority Members Disqualification Act? 17. Mr. Dixit, also made certain submissions on the merits of the case, which same are mentioned in the later part of the judgment. 18. The rival submissions give rise to following questions: (i) Whether respondent No.1 has incurred disqualification as contemplated by section 3 of the Maharashtra Local Authority Members Disqualification Act? (ii) Whether respondent No.1 is entitled to further hearing as per procedure laid down under the rules 6 and 7 of the Maharashtra Local Authority Members Disqualification Rules and for that purpose whether cases should be remanded back to the learned Divisional Commissioner? 19. The Act was made by State Legislature, pursuant to the Fifty Second Constitutional (Amendment) 1985, by which Tenth Schedule was added to the Constitution with effect from 01st March, 1985. The provisions of Tenth Scheduled of the Constitution are almost paramateria to the provisions of the Act. The relevant provisions of the Act are as under: “2. Definitions-In this Act, unless the context otherwise requires,- (a) "aghadi" or" front" means a group of persons who have formed themselves into party for the purpose of setting up candidates, for election to a local authority. (c) "Commissioner" means the Commissioner of a revenue, division appointed under section 6 of the Maharashtra Land Revenue Code, 1966; (d) "Councillor'" means a Councillor of a Municipal Corporation, or a Municipal Council, or a Zilla Parishad; (i) "municipal party", in relation to the Councillor belonging to any political party or aghadi or front in accordance with the Explanation to section 3, means - (i) in the case of a councillor of a Municipal Corporation, the group consisting of all the councillors of the Municipal Corporation for the time being belonging to that political party or aghadi or front in accordance with the said Explanation. (ii) in the case of a councillor of a Municipal Council, the group consisting of all the councillors of the Municipal Council for the time being belonging to that political party or aghadi or front in accordance with the said Explanation. (j) "original political party " in relation to a councillor or a member, means the political party to which he belongs for the purposes of sub-section (1) of section 3; “3. (j) "original political party " in relation to a councillor or a member, means the political party to which he belongs for the purposes of sub-section (1) of section 3; “3. Disqualification on ground of defection-(1) Subject to the provisions of 1[section 5]a councillor or a member belonging to any political party or aghadi or front shall be disqualified for being it councillor or a member- (a) if he, has voluntarily given up his membership of such political party or aghadi or front; or (b) if he votes or abstains from voting in any meeting of the Municipal Corporation, Municipal Council, Zilla Parishad or, as the case may be, Panchayat Samiti contrary to any direction issued by the political party or aghadi or front to which he belongs or by any person or authority authorized by any of them in this behalf, without obtaining, in either case, the prior permission of such political party or aghadi or front, person or authority and such voting or abstention has not been condoned by such political party or aghadi or front, person or authority within fifteen days from the date of such voting or abstention: Provided that, such voting or abstention without prior permission from such party or Aghadi or front, at election of any office, authority or committee under any relevant municipal law or the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 shall not be condoned under this clause : Explanation.-.For the purposes' of this section- (a) 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 candidate for election as such councilor or member;. (b) a nominated 2 [concillor] shall- (i) where he is a member of any political party or aghadi or front on the date of his nomination 3 * * * * be deemed to belong to such political party or aghadi or front, (ii) in any other case, be deemed to belong to the political party or aghadi or front of which he becomes, or as the case may be, first becomes a member of such party or aghadi or front before the expiry of six months from the date on which he is nominated 2* * * *; © 3 [ X X X ] (2) An elected councillor, or as the case may be, member who has been elected as such otherwise than as a candidate set up by any political party or aghadi or front shall be disqualified for being a councillor, or as the case may be, a member if he joins any political party or aghadi or front after such election. (3) 4 * * * * (4) Notwithstanding anything contained in the foregoing provisions, of this section a person who on the commencement of this Act, is a councillor, or as the case may be, member (whether elected' or, nominated2 * * * * as such councillor or member) shall- (a) where he was a member of a political party or aghadi or front immediately before such commencement, be deemed, for the purposes of Sub-section (1), to have been elected as a councillor, or as the case may be, a member as a candidate set up by such political party or aghadi or front; (b) in any other case, be deemed to be an elected councillor, or as the case may be, member who has been elected as such otherwise than as a candidate set up by any political party or aghadi or front for the purpose of sub-section (2) 6 * * * *. 5. 5. Disqualification on ground of defection not to apply in case of merger-(1) A councillor or a member shall not be disqualified under sub-section (1) of section 3 where his original political party or aghadi or front merges with another political party or aghadi or front and he claims that he and any other members of his original political party or aghadi or front- (a) have become members of such other political party, or aghadi or front or as the case may be, of a new political party formed by such merger; or (b) have not accepted the merger and opted to function as a separate group, and-from the time of such merger, such other political party or new political party or aghadi or front or group, as the case may be, shall be deemed to the political party or aghadi or front to which he belongs for the purpose of sub-section (1) of section 3 and to be original political party or aghadi or front for the purpose of this sub-section. (2) For the purposes of sub-section (1), the merger of the original political party or aghadi or front of a councillor, or as the case may be, a member shall be deemed to have taken place if, and only if, not less than two-thirds of the members of municipal party, Zilla Parishad party, or as the case may be, Panchayat Samiti party, concerned, have agreed to such merger.” 20. On plain reading of these provisions, one finds that, a person who wishes to get elected as councillor of a Municipal Corporation may belong to a political party, prior to the election, he may not even belong to any political party and is also entitled to file his nomination, as an independent, for contesting election to the post of councillor. Thus, a person who gets elected as councillor either belongs to original political party or could be an independent. Once, official candidate/s of an original political party get/s elected as councillor/s, he or they form a Municipal party of to that specific political party to which they belong prior to their election. Thus, a person who gets elected as councillor either belongs to original political party or could be an independent. Once, official candidate/s of an original political party get/s elected as councillor/s, he or they form a Municipal party of to that specific political party to which they belong prior to their election. Once these concepts is understood, one would find that a councillor belonging to any political party would incur disqualification for being a councillor, if (a) he has voluntarily given up his membership of such political party, or (b) if he votes of or abstains from voting in any meeting of the Corporation, contrary to the directions issued by political party to which he belongs without obtaining prior permission of his political party within 15 days from date of such voting or abstinent. The exception to this rule is provided in Section 5, which says that a councilor may not incur disqualification, if and only if his original political party merges with another political party and he claims that he and other members of his original party have become members of such other political party or of new political party formed by such merger. Section 5 further provides that, in case of merger, a councillor would have option of not becoming member of other political party or new political party formed after merger. He could continue as a counciallor in separate group and would remain a councillor belonging to his original political party. 21. As per section 9 of the Act, the State Government has made Rules, which are named as Maharashtra Local Authority Members Disqualification Rules 1987. These Rules interalia provided procedure as to how a petition could be filed before a Competent Authority for deciding as to whether a Councillor has incurred disqualification. Rules 6 and 7 are relevant rules in this regard and are quoted below. “6. These Rules interalia provided procedure as to how a petition could be filed before a Competent Authority for deciding as to whether a Councillor has incurred disqualification. Rules 6 and 7 are relevant rules in this regard and are quoted below. “6. References to be by petitions: (1) No reference of any question as to whether a councillor in relation to a Municipal party, zilla parishad party, or member in relation to a panchayat Samitti party has become subject to disqualification under the Act shall be made except by a petition in writing to the commissioner in the case of a councillor of a Municipal Corporation and the Collector in the case of any other councillor or member, by any other councillor or, as the case may be, member, in relation to such councillor or, as the case may be member. (2) Before making any petition in respect of a councillor in relation to a municipal party and a Zilla Parishad party or a member in relation to the Panchayat Samitti party 2[the petitioner shall satisfy himself] that there are reasonable grounds for believing that a question has arisen as to whether such councilor or, as the case may be, member has become subject to disqualification under the Act. (3) Every Petition- (a) Shall contain a concise statement of the material facts on which the petitioner relies; and (b) shall be accompanied by copies of the documentary evidence, if any, on which the petitioner relies and where the petitioner relies on any information furnished to him by any persona statement containing the names and address of such person and the gist of such information as furnished by each such person. (4) Every Petition and any annexure thereto shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (V of 1908) for the verification of pleadings.” “7. Procedure :- (1) On receipt of a petition under rule 6, the commissioner, or, as the case may be, collector shall consider whether the petition complies with the requirements laid down in that rule (2) If the petition does not comply with the requirements of rule 6, the Commissioner, or, as the case may be, Collector shall dismiss the petition and intimate the petitioner accordingly. (3) If the petition complies with the requirements of rule 6, the Commissioner, or as the case may be, Collector shall forward copies of the petitioner and of the annexures thereto- (a) to the councillor in relation to a municipal party and a Zilla Parishad party and member in relation to a Panchayat Samiti party in respect of whom the petition has been made, and (b) Where such councillor in relation to a municipal party and a Zilla Parishad party and member in relation to a Panchayat Samiti party belongs to any political party or aghadi or front and such petition has not been made by the leader thereof also to such leader; and such councillor, member or leader shall, within seven days of the receipt of such copies, or within such further period as the Commissioner, or as the case may be, Collector may for sufficient reason allow, forward his comments in writing thereon to the Commissioner or as the case may be, Collector. (4) After considering the comments, if any, in relation to the petition received under sub-rule(3) within the period allowed (including the extended period), the Commissioner, or, as the case may be, Collector shall proceed to determine the question after making a preliminary enquiry. (5) The procedure which shall be followed by the Commissioner or, as the case may be, Collector for the purpose of making a preliminary enquiry to determine any question under sub-rule (4) shall be as prescribed in sub-rules(6) to (15) (6) The Commissioner or as the case may be, Collector shall draw up or cause to be drawn up- (i) the substance of the imputations of disqualification into definite and distinct articles of charge; (ii) a statement of the imputations of disqualification in support of each article of charge, which shall contain- (a) a statement of all relevant facts including any admission or confession made by the Councillor or the Member, and (b) a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained. (7) The Commissioner or, as the case may be, Collector shall deliver or cause to be delivered to the Councillor, or as the case may be, the Member, a copy of articles of charge, the statement of the imputation of disqualification and a list of documents and of the witnesses by which each article of charge is proposed to be sustained, and shall by a written notice, require the councillor or, as the case may be, the Member to submit to him within such time as may be specified in the notice, a written statement of his defence and to state whether he desires to be heard in person. (8) On receipt of the written statement of defence, the Commissioner or, as the case may be, the Collector, may himself inquire into such of the articles of charge as are not admitted, and where all the articles of charge have been admitted by the Councillor or Member in his written statement of defence, the Commissioner or, as the case may be, the Collector, shall record his findings on each charge after taking such evidence as he may think fit and shall act in the manner laid down in rule 8 of these rules. (9) If no written statement of defence is submitted by such Councillor or Member, the Commissioner or, as the case may be, the Collector shall proceed to inquire as if the Councillor or Member has nothing to say. (10) The Commissioner or as the case may be, Collector shall require the complainant as well as the Councillor or Member who wishes to be heard either in person or through his Advocate to appear before him on such day and at such time as may be fixed by him. (11) The Councillor or, as the case may be, the Member shall appear in person before the Commissioner or, as the case may be, the Collector, on such day and at such time within ten working days from the date of receipt by him of the articles of charge and the statement of the imputations of disqualification, as the Commissioner or, as the case may be, the Collector may by a notice in writing, specify in this behalf, or within such further time not exceeding ten days, as the Commissioner or, as the case may be the Collector, may allow. (12) The Commissioner or, as the case may be, the Collector, shall if the Councillor or, as the case may be, the Member, fails to appear within the specified time or refuses or admits to plead, produce the evidence by which he proposes to disprove article of charge, adjourn the case to a later date not exceeding thirty days, after recording an order that the Councillor or, as the case may be, the Member, may for the purposes of preparing his defence- (i) inspect within five days of the order or within such further time not exceeding five days as the Commissioner or, as the case may be, the Collector, may allow, the documents specified in the list referred to in sub-rule(6) of this rule: (ii) submit a list of witnesses to be examined on his behalf. (13) Where the Councillor or, as the case may be, the member applies orally or in writing for the supply of copies of the statements of witnesses mentioned in the list referred to in sub-rule(6) of this rule, the Commissioner or, as the case may be, the Collector, shall furnish him with such copies as early as possible, and in any case not later than three days before the commencement of the examination of the witnesses on behalf of the disciplinary authority. (14) The enquiry shall be commenced on the date fixed in that behalf by the Commissioner or, as the case may be, the Collector, and shall be continued thereafter on such date or dates as may be fixed from time to time by him. (15) On the date fixed for the inquiry, the oral and documentary evidence shall be produced by or on behalf of the petitioner. The witnesses shall be examined by or on behalf of the petitioner and may be cross examined by the Councillor or member, against whom there are charges of disqualification].” 22. In view of the provisions in the rules quoted above, the petitioner on two occasions made petitions before Competent Authority i.e. Divisional Commissioner for his appropriate orders for declaring that respondent No. 1 had incurred disqualification as councillor of Jalgaon Municipal Corporation. As mentioned above, after submission of the petitions, the Divisional Commissioner issued notice to respondent No.1. In view of the provisions in the rules quoted above, the petitioner on two occasions made petitions before Competent Authority i.e. Divisional Commissioner for his appropriate orders for declaring that respondent No. 1 had incurred disqualification as councillor of Jalgaon Municipal Corporation. As mentioned above, after submission of the petitions, the Divisional Commissioner issued notice to respondent No.1. This would apparently means that learned Divisional Commissioner did not utilize his option to dismiss the petition for non-compliance of the requirements laid down in rule 6. After such notice is served on the councillor in question, he is under obligation to submit his comments in writing. In these two cases, respondent No.1 sought time to file his comments in writing, but instead, raised objection to the maintainability of the petitions, on the ground that they had not complied with requirements of rule 6, the question is “whether such course of action was available to respondent NO.1?” In my view, such option is not available to the respondent No.1 or for that matter the councillor, who is served with notice under sub-rule 3 of rule 7. He has opportunity to submit his comments in writing, in such comments the councillor is able to not only raise his objections to non-compliance of the requirements of rule 6, but he also make his comments on the question as to whether any question has arisen for making preliminary enquiry into it. It is seen in number of cases that, the councillor in question, instead of submitting his comments in writing, indulged in making submissions as regards to alleged non compliance of requirements of rule 6. I think this practice should be curtailed and authorities should be directed not to allow such councillor/s to make such submissions instead of authorities should direct such councillor to submit his comments as contemplated in clause (b) of sub-rule 3 of rule 7. 23. As said above, on the basis of such objection regarding maintainability of the petitions, compliance of requirements under rule 6, the learned Divisional Commissioner proceeded to hear the parties and their learned Advocates, and ultimately recorded his findings even on merits of the case. As regards procedural aspect or non-compliance of procedure, I would give my findings in the subsequent part of my judgment. Presently, I would deal with question as to whether the respondent No.1 had incurred disqualification. 24. As regards procedural aspect or non-compliance of procedure, I would give my findings in the subsequent part of my judgment. Presently, I would deal with question as to whether the respondent No.1 had incurred disqualification. 24. The first allegation against respondent No.1 is that, even though he belonged to Shivsena, his original political party, on whose ticket he got elected as councillor, he decided to join Municipal party formed by councillors, who belonged to another original political party, by name Nationalist Congress Party (NCP). The allegation is amply proved by the documents, which are annexed to the petition No. 05 of 2009. The Gazette of the State dated 04th September, 2008, published the election result of Jalgaon Municipal Corporation of 2008. The list of elected councilors mentions name of respondent NO.1 at serial No.42. He was shown to have been elected, as official candidate of political party of Shivsena. On 17th September, 2009, letters written by respondent NO.1 and Ganesh Sonwane (who was leader of Municipal party of NCP) are also brought on record. The copies of these letters were secured by the petitioner by utilizing his powers under Right to Information Act, officially from the Municipal Corporation. 25. The letter dated 17th September, 2009 of Ganesh Sonwane is annexed with minutes of certain meetings, held by the members of Municipal party of NCP, on 10th September, 2009. The minutes of meetings show that, on that day Municipal party of NCP allowed respondent No.1 to become a member of their Municipal Party. This resolution was passed pursuant to the request made by respondent No.1 to the Municipal party of NCP. The genuineness of these documents is beyond doubt, even though respondent No.1 has made his comments on the genuineness of these documents, there is practically no need to wait for his admission or denial of contents of these documents. It is clearly seen that he was party to these documents. Apparently, there is no need to prove these documents, and therefore, I hold that it is amply proved that respondent NO.1 joined Municipal party of NCP on 10th September, 2009 and declared so vide his letter dated 17th September, 2009. The question is, whether this would amount to disqualification? The answer is in affirmative. There was no scope for respondent No.1 for abandoning his so called Municipal party of Shivsena and to join Municipal party of NCP. 26. Mr. The question is, whether this would amount to disqualification? The answer is in affirmative. There was no scope for respondent No.1 for abandoning his so called Municipal party of Shivsena and to join Municipal party of NCP. 26. Mr. Dixit, learned Sr. Counsel appearing for respondent No.1 made submissions that respondent NO.1 belonged to his original political party Shivsena, once he got elected as Councillor and once he formed a Municipal party of Shivsena, he could lawfully merge his Municipal party with another Municipal party. He said “the concept of merger” is quite “evident” from section 5 of the Act. He thereby suggests that there could be a merger of one Municipal party with other, without there being merger of original political parties. In order to support his contention he also placed reliance on the judgment of Division of this Court in the case of Umesh Shrikant Shete Vs. Collector Ratnagiri and others, reported in 2009(6) MH.L.J.209. 27. I do not agree with Mr. Dixit. The concept of merger of Municipal parties is not known to the provisions of the Act. The Act clearly contemplates in section 5 that there could be a merger of two or more original political parties, which would then give option to Councillors, who are elected as official candidates of such political parties, to either merge the Municipal parties, or to continue as different Municipal parties. Section 5 suggests that such option, after merger of political parties, is available to the councillor of such political parties for only one time. It further suggests that once a choice is made by a councillor either to become a member of new political party, after merger, and thereby merging his Municipal party into other Municipal party, or to continue, as if merger has not taken place, he is prevented from changing his position. 28. In this regard judgment of Supreme Court in the case of Dr. Mahachandra Prasad Singh Vs. Chairman Bihar Legislative Council and others, supra gives us elaborate guidance. I think law on this subject is elaborately laid down in this judgment. Para No.7 of this Judgment should be quoted to complete the discussion on the question. “7. 28. In this regard judgment of Supreme Court in the case of Dr. Mahachandra Prasad Singh Vs. Chairman Bihar Legislative Council and others, supra gives us elaborate guidance. I think law on this subject is elaborately laid down in this judgment. Para No.7 of this Judgment should be quoted to complete the discussion on the question. “7. Paragraph 2 of the Tenth Schedule lays down the contingencies under which a member of the House belonging to any political party shall be disqualified for being a member of the House and they are enumerated in sub-paras(1),(2) and (3) Sub-para(2) deals with a situation where a member of the House elected as an independent candidate joins any political party after such election and sub-para (3) deals with a situation where a nominated member of the House joins any political party after the expiry of six months from the date on which he takes a seat. Sub-para(1) deals with a situation where a member of a House belonging to any political party voluntarily gives up his membership of such political party. It also deals with a situation where he votes or abstains from voting in the House, contrary to any direction issued by the Political party to which he belongs, without obtaining prior permission of such political party and such voting or abstention has not been condoned by such political party within fifteen days from the said voting or abstention. The scrutiny of the provisions of sub-para(2) would show that a member of a House belonging to any political party becomes disqualified for being a member of the House if he does some positive act which may be either voluntarily giving up his membership of the political party to which he belongs or voting or abstention from voting contrary to any direction issued by the political party to which he belongs and in the case of an independent of nominated member, on his joining a political party. On the plain language of Paragraph 2, the disqualification comes into force or becomes effective on the happenings of the event. Paragraph 4 is in the nature of an exception to Paragraph 2 and provides for certain contingencies when the rule of disqualification will not apply in the case of merger of political parties. On the plain language of Paragraph 2, the disqualification comes into force or becomes effective on the happenings of the event. Paragraph 4 is in the nature of an exception to Paragraph 2 and provides for certain contingencies when the rule of disqualification will not apply in the case of merger of political parties. Paragraph 6 says that where any question arises as to whether a member of the House has become subject to disqualification under the Schedule, the same shall be referred for the decision of the Chairman, or as the case may be, the Speaker of the House and his decision shall be final. Therefore the final authority to take a decision on the question of disqualification of a member of the House vests with the Chairman or the Speaker of the House. It is to be noted that the Tenth Schedule does not confer any discretion on the Chairman or Speaker of the House. Their Role is only in the domain of ascertaining the relevant facts. Once the facts gathered or placed show that a member of the House has done any such act which comes within the purview of sub-paragraph (1) (2) or (3) of Paragraph 2 of the Tenth Schedule, the disqualification will apply and the Chairman or the Speaker of the House will have to make a decision to that effect.” 29. Above quoted paragraph would clarify that once a councilor voluntarily gives up his membership of political party, the disqualification comes into force and becomes effective on the happening of the event. In this case, by joining Municipal party of NCP, respondent No.1 has clearly given up his allegiance/loyalty to his original political party Shivsena. The moment this happened, disqualification became effective. In this case, admittedly, there was no merger of political parties, namely, Shivsena on one hand, and NCP on the other. The case, thus, would not fall within exception of S. 5 of the Act. 30. The Supreme Court delivered one more judgment on this subject, in the case of Kedar Shashikant Deshpande etc. Vs. Bhor Municipal Council and others etc reported in AIR 2011 Supreme Court 463. In this judgment interalia the Supreme Court held that “Section 5 speaks of merger of original political party.” This would mean that, it does not speak about merger of Municipal parties, so argument of Mr. Dixit would lose its efficacy. Vs. Bhor Municipal Council and others etc reported in AIR 2011 Supreme Court 463. In this judgment interalia the Supreme Court held that “Section 5 speaks of merger of original political party.” This would mean that, it does not speak about merger of Municipal parties, so argument of Mr. Dixit would lose its efficacy. Even reliance on the judgment of Umesh Shete’s case would not give him any support, as the subject matter of said judgment was different. From the contents of judgment, it is clear that there were no submissions made before the Division Bench that, there could have been merger of Municipal parties, without there being merger of original political parties etc. In any case, the judgments of the Supreme Court in the above mentioned two cases, as said above give proper and elaborate guidance, as to how the question in respect of disqualification is required to be decided. The reliance of Mr. Dixit, on the judgment of Umesh Shete’s case is, therefore, unnecessary and useless. 31. The Second point is in respect of procedure to be followed, while conducting the enquiry under rule 7 of the rules. I have discussed above, as to at what stage impugned judgments and orders were made. They were made even before the petitions had reached the stage of sub-rule 4 of rule 7. The Divisional Commissioner, thus did not make preliminary enquiry and did not determine the question raised in the petitions. The Divisional Commissioner did not draw up substance of imputations of disqualification into definite and distinct articles of charge, did not draw up statement of facts and a list of documents, did not deliver the articles of charge etc. to respondent No.1, did not allow him to submit his written statement of defence, did not record oral and documentary evidence etc. of the parties. The question is, whether failure of the Divisional Commissioner to take necessary steps under sub-rule 5 of rule 7 onwards would prove fatal to findings recorded by him?, the answer is negative. The Supreme Court in the judgment of Dr. Mahachanda Prasad Singh’s case dealt with similar question. It was submitted before the Supreme Court that, there was no compliance to the rules, and therefore, the authority would not assume jurisdiction to decide the petition. The second submission before the Supreme Court was that authority did not give an opportunity of personal hearing etc. Mahachanda Prasad Singh’s case dealt with similar question. It was submitted before the Supreme Court that, there was no compliance to the rules, and therefore, the authority would not assume jurisdiction to decide the petition. The second submission before the Supreme Court was that authority did not give an opportunity of personal hearing etc. and thereby violated principle of natural justice. The Supreme Court on this point dealt with rules 6 and 7 of Bihar Legislature Council Members (Disqualification on Ground of Defection) Rules, 1994, which are almost para meteria to the Rules under the Act. The supreme Court held as under: “The purpose and object of the Rules is to facilitate the job of the Chairman in discharging his duties and responsibilities conferred upon him by Paragraph 6, namely for resolving any dispute as to whether a member of the house has become subject to disqualification under the Tenth Schedule. The Rules being in the domain of procedure, are intended to facilitate the holding of inquiry and not to frustrate or obstruct the same by introduction of innumerable technicalities. Being subordinate legislation, the Rules cannot make any provision which may have the effect of curtailing the content and scope of the substantive provision, namely, the Tenth Schedule. There is no provision in the Tenth Schedule to the effect that until a petition which is signed and verified in the manner laid down in CPC for verification of pleadings is made to the Chairman or the Speaker of the House., he will not get the jurisdiction to give a decision as to whether a member of the House has become subject to disqualification under the Schedule. Paragraph 6 of the Schedule does not contemplate moving of a formal petition by any person for assumption of jurisdiction by the Chairman or the Speaker of the House. The purpose of Rules 6 and 7 is only this much that the necessary facts on account of which a member of the House becomes disqualified for being a member of the House under Paragraph2, may be brought to the notice of the Chairman. There is no lis between the person moving the petition and the member of the House who is alleged to have incurred a disqualification. It is not an adversarial kind of litigation where he may be required to lead evidence. There is no lis between the person moving the petition and the member of the House who is alleged to have incurred a disqualification. It is not an adversarial kind of litigation where he may be required to lead evidence. Even if he withdraws the petition it will make no difference as a duty is cast upon the Chairman of the Speaker to carryout the mandate of the constitutional provision viz, the Tenth Schedule. The object of Rule 6 which requires that every petition shall be signed by the petitioner and verified in the manner laid down in CPC for the verification of pleadings, is that frivolous petitions making false allegations may not be filed in order to cause harassment. It is not possible to give strict interpretation to Rules 6 and 7 otherwise the very object of the Constitution (Fifty Second Amendment) Act by which the Tenth Schedule was added would be defeated. A defaulting legislator, who has otherwise incurred the disqualification under paragraph 2, would be able to get away by taking the advantage or even a slight or insignificant error in the petition and thereby asking the Chairman to dismiss the petitioner under sub-rule(2) of Rule 7. The validity of the Rules can be sustained only if they are held to be directory in nature as otherwise on strict interpretation, they would be rendered ultra vires.” 32. These observations clearly suggest that, the Divisional Commissioner in this case, on receipt of petitions even without following due procedure contemplated by rules 6 and 7, could have asked respondent No.1, as to why he should not declared disqualified. There was practically no lis between the petitioner and respondent no.1, after petitions were filed and prima facie material was brought on record. Once, the Divisional Commissioner was delivered the information regarding the defection of the respondent No.1, he should have proceeded to decide as to whether the respondent No.1 had incurred disqualification. In order to decide such question, all that the Divisional Commissioner was to do was to confirm from the record and after giving an opportunity of hearing to the respondent No.1, as to whether respondent No.1 had voluntarily given up his membership of original political party of Shivsena by joining Municipal party of NCP. In order to decide such question, all that the Divisional Commissioner was to do was to confirm from the record and after giving an opportunity of hearing to the respondent No.1, as to whether respondent No.1 had voluntarily given up his membership of original political party of Shivsena by joining Municipal party of NCP. Secondly, he was under obligation to decide after verifying of the record and after hearing respondent No.1, as to whether he had contested MLA election as an independent candidate. In the case of this nature, elaborate inquiry as contemplated under rules 6 and 7 was really not needed. After filing of the petitions, the learned Divisional Commissioner issued notice to respondent No.1, and thereby afforded him an opportunity to make his submission either in writing or oral, and thus, afforded him ample opportunity of being heard. The respondent NO.1 clearly avoided to face the allegations, but tried to evade them by raising futile objections regarding so called non compliance of requirements of rule 6. 33. On perusal of original papers, I found that requirements of rule 6 were clearly complied with, and it appears that after being satisfied in respect of compliance of rule 6, the learned Divisional Commissioner had issued notice to respondent NO.1. As said earlier, respondent No.1 in order to evade the allegations and to prolong enquiry chose to file his piece meal objections, which were not pertinent in absence of his comments in writing, as contemplated by sub-rule 4 of rule 7. In such situation, the learned Divisional Commissioner had ample opportunity to peruse the documents on record, assume that documents are admitted by respondent No.1 and then proceed to decide the question as to whether, respondent No.1 had incurred disqualification. In any case, the learned Divisional Commissioner ultimately examined merits of both petitions. He heard at length the submissions made by the learned advocates of the parties on merits of the case. 34. The record clearly shows that submissions on the merits of the case were made before the ld. Commissioner. The learned counsel appearing for respondent No.1 made submission that, letters dated 17th September, 2009 sent by respondent No.1 and Ganesh Sonwane, would not prove defection of the Respondent No.1 etc. The discussion on facts above, clearly establish that by joining Municipal party of NCP, the respondent NO.1 had give up his original political party. Commissioner. The learned counsel appearing for respondent No.1 made submission that, letters dated 17th September, 2009 sent by respondent No.1 and Ganesh Sonwane, would not prove defection of the Respondent No.1 etc. The discussion on facts above, clearly establish that by joining Municipal party of NCP, the respondent NO.1 had give up his original political party. Despite of this, the learned Divisional Commissioner erred in holding that this was a case of merger of two Municipal Parties and such merger is permissible under section 5 of the Act. This finding of the learned Divisional Commissioner is patently incorrect and deserves to be set aside. 35. The allegation in the second petition that, respondent NO.1 contested the election, as an independent candidate and not as official candidate of Shivsena, his original political party would indicate stronger case for disqualification of respondent NO.1. The documents annexed to the petition came from official source, these documents were obtained by the petitioner using his powers under Right to Information Act. The documents clearly show that respondent No.1 contested the election, as an independent candidate. Thus, there is practically no scope for respondent No.1 to deny this allegation. Thus, there was no further need for the learned Divisional Commissioner to make preliminary enquiry in this regard. Once on the facts, this allegation was proved, the only question that was before the learned Divisional Commissioner, was to find out whether facts incur disqualification to respondent NO.1, as councillor of the Corporation. But on perusal of the judgment of the Divisional Commissioner, it is found, he simply forgot that respondent NO.1 belonged to Shivsena, his original political party. He erred in assuming that since respondent No.1 merged his Municipal party with Municipal party of NCP, he at the most could have betrayed his new political party namely NCP. He further opined that since NCP party did not raise objection to contest Election of Legislative Assembly, respondent No.1 did not incur disqualification. This findings is an indication of naivety and/or perversity. The learned Divisional Commissioner failed to apply law and provisions of section 3 of the Act to the facts of the case, or was he not willing to do so? 36. In any case, Judgments and orders dated 18th January, 2010 passed by the Divisional Commissioner, Nashik, in the Disqualification Petition Nos. 05 of 2009 and 06 of 2009, respectively, deserve to be set aside. 36. In any case, Judgments and orders dated 18th January, 2010 passed by the Divisional Commissioner, Nashik, in the Disqualification Petition Nos. 05 of 2009 and 06 of 2009, respectively, deserve to be set aside. ORDER (1) Rule is made absolute. (2) The impugned Judgment and order dated 18th January, 2010 passed by the Divisional Commissioner, Nashik, in the Disqualification Petition Nos. 05 of 2009 and 06 of 2009 respectively stands set aside. (3) Respondent No.1 stood disqualified as Councillor of Jalgaon Municipal Corporation, Jalgaon w.e.f. 17th September, 2009. (4) The request of Mr.Dixit, learned Sr. Counsel for respondent No.1 to keep the effect of this judgment and order in abeyance, is rejected.