Judgment : 1. Both these writ petitions are challenging the judgment and order passed by the learned Collector, Latur dated 08/04/2011 holding that the petitioners stood disqualified as members of Zilla Parishad, Latur. 2. The facts leading to this litigation in short can be stated as under. 3. The petitioners are members of Indian National Congress, a national level political party and as its official candidates, were elected as councilors of Zilla Parishad, Latur in 2007. 4. The elections for the post of President and Vice President were due in 2009. A meeting was called on 02/12/2009 for the election. Fifty Seven councilors of Zilla Parishad attended this meeting. Out of them, 31 councilors including petitioners belonged to Indian National Congress, five councilors belong to Nationalist Congress party. (Indian National Conress and Nationalist Congress party jointly contested the election of Zilla Parishad.) 5. Time for filing of the nominations for the posts was given to the councilors between 11.00 a.m. to 1.00 p.m. on that date. Accordingly, number of councilors filed their nominations for the post of President and Vice President. Two amongst the petitioners namely Pandit Dhumal and Sambhaji Patil filed their nominations for the post of President and Vide President respectively. The respondents Trimbak Bhise and Dilip Patil also filed their nominations for the post of President and Vice President. All these councilors belonged to Indian National Congress. 6. On that day, at 3.00 p.m., the meeting was convened. First, the presiding officer scrutinised the nominations and found most of the nominations valid. The announcement of valid nominations was made at about 3.20 p.m. and the Presiding Officer allowed 15 minutes time for withdrawal of the nominations. During those 15 minutes, above mentioned Trimbak Bhise made an announcement in the meeting stating that as the leader of Zilla Parishad party of Indian National Congress, he was authorised to make an announcement that the political party had issued directions that the councilors belonging to his party should vote in favour of official candidates of the party by name Trimbak Bhise and Dilip Patil. To this, the above mentioned Pandit Dhumal replied in the meeting that the whip issued by party has not been received by some of the members of the party. To this, the above mentioned Pandit Dhumal replied in the meeting that the whip issued by party has not been received by some of the members of the party. Trimbak Bhise then announced as the leader of the Zilla Parishad party the whip of the party would be served on all the members before commencement of voting. 7. Thereafter, most of the candidates withdrew their nominations except the above mentioned four candidates. For the post of President, Pandit Dhumal and Trimbak Bhise remained contesting candidates and for the post of Vice president, Dilip Patil and Sambhaji Patil remained the contesting candidates. The election was held by show of hands and it was found that petitioners Pandit Dhumal and Sambhaji Patil could secure 33 votes, out of 57 which included the votes of the twelve petitioners and were declared elected. 8. In view of this, the defeated candidates namely Trimbak Bhise and Dilip Patil moved their complaint under rule 6 read with section 3 and 7 of Maharashtra Local Authorities Members’ Disqualification Act, 1986 and rules made thereunder in 1987 (henceforth be referred to as the ‘Act and the rules’). They narrated their case as under. 9. They stated that the Indian National Congress Party had declared their names as official candidates of the party for the post of President and Vice President on 02/12/2009 (the day when the election took place). Accordingly, they filed nominations. They say that to their surprise, they found that their own party men Pandit Dhumal and Sambhaji Patil had filed nominations against them. They said that they requested them to withdraw their candidature, because they were not the official candidates of the party. They further narrated that the Maharashtra Pradesh Congress committee had deputed one Gulabrao Ghorpade as the observer for ensuring smooth election. This observer was appointed by party not only for declaring the names of the official candidates of the party but was also authorised to issue whip to the councilors. They said that on that day, Shri Ghorpade had declared their names as official candidates of the party and issued written whip under his own signature to be served on the members of the party. They said that when the whip was sought to be served on the petitioners, some of them avoided to accept it. They said that on that day, Shri Ghorpade had declared their names as official candidates of the party and issued written whip under his own signature to be served on the members of the party. They said that when the whip was sought to be served on the petitioners, some of them avoided to accept it. They said that when they realised that the petitioners were not in mood of obeying whip, they informed this fact to Shri Ghorpade telephonically and also to the District Congress committee president Shri Zawar. They say that then Shri Ghorpade and Shri Zawar orally authorised Shri Pandit Dhumal to communicate/serve written whip of the party to the petitioners in the meeting itself. Accordingly, Shri Pandit Dhumal orally communicated the directions of the party to the petitioners and other members of the party. They say that despite of such communication, the petitioners voted against the directions issued by the political party and so they had incurred disqualification, as per the provisions of Section 3(1)(b) of the Act. 10. The petitioners filed reply to this complaint and denied most of the allegations made against them. They denied the fact that the party had deputed Shri Ghorpade as party observer and that he had authority to announce names of the official candidates of the party or that he had authority to issue whip in respect of the voting in the election. In addition to this, they said that they were never served with any party whip before voting. They further pointed out that the elected councilors belonging to Indian National Congress did not form and register "Zilla Parishad party" after election of year 2007 and so Zilla Parishad party of Indian National Congress did not come in existence. They asserted, it is the Zilla Parishad party of Indian National Congress, which could controlled the councilors and was not Indian National Congress, the political party. They asserted further that for the purpose of attracting disqualification under section 3, there should be a breach of mandate or directions issued by Zilla Parishad party and not by the political party. 11. In view of this, the learned Collector framed certain issues and held that the Indian National Congress, the political party had issued whip for the election meeting and the same was served on the petitioners. He further held that they disobeyed whip and so incurred disqualification. 12. 11. In view of this, the learned Collector framed certain issues and held that the Indian National Congress, the political party had issued whip for the election meeting and the same was served on the petitioners. He further held that they disobeyed whip and so incurred disqualification. 12. The learned counsel for the petitioners asserted that the real issue between the parties was, whether the socalled whip issued by Shri Ghorpade was lawful. In other words, he suggested that Shri Ghorpade was not competent to issue the whip because he was not authorised by the political party namely the Indian National Congress party, to issue such whip. He even questioned his authority to issue such whip in the light of the provisions of party's constitution. 13. As indicated above, the petitioners did not even admit that Shri Ghorpade had come as party observer to Latur for controlling the process of election. They even denied that Shri Ghorpade held meeting of the workers of the party including the Zilla Parishad councilors for deciding the strategy for the election. However, on facts the Collector held that Shri Ghorpade had been camping at Latur few days prior to the election and had held meeting to decide about the course of action for the proposed election. The learned Collector held on facts that on 30th November, Shri Ghorpde held a meeting in which the Zilla Parishad councilor of Congress party authorised the party to nominate the official candidates for the posts of president and vice president. The learned Collector discussed the evidence on this point and I do not find his conclusion perverse. 14. As mentioned above, there is a clear indication that despite of Shri Ghorpade’s efforts, the party could not finalise the names of the official candidates for the post of President and Vide President, till the date of election. It is clear from the narration above that till the nominations were filed, the decision of the party to officially nominate Trimbak Bhise and Dilip Patil as official candidates was not communicated. Amongst such uncertainty, four councilors of Indian National Congress had filed their nominations. Their nominations were scrutinised and found valid. Until the scrutiny was held and the result of the scrutiny was announced, Shri Ghorpade could not communicate to the councilors of his party the names of the official candidates. Amongst such uncertainty, four councilors of Indian National Congress had filed their nominations. Their nominations were scrutinised and found valid. Until the scrutiny was held and the result of the scrutiny was announced, Shri Ghorpade could not communicate to the councilors of his party the names of the official candidates. It is rather belatedly at about 3.20 p.m. at the crucial time when 15 minutes time was given for withdrawal of candidature, (in the meeting itself) the party observer through the official candidate himself (Trimbak Bhise) announced the fact that the party had nominated Trimbak Bhise and Dilip Patil as official candidates of the party. The announcement was made as mentioned above in the meeting by Trimbak Bhise. While making this announcement, he even asserted that he was making this announcement as the "leader" of the Zilla Parishad party and that the political party had issued whip. He even announced that the whip was served on all the members of the party. Pandit Dhumal, one of the petitioners tried to contradict him saying that some of the members of Congress party were not served with the whip. The learned Collector after recording evidence held on facts that the whip was issued in writing by the observer Shri Ghorpade and that Shri Ghorpade was authorised to issue such whip, by the Pradesh Congress committee’s President Shri Manikrao Thakare. I am not inclined to disturb this finding on facts recorded by the learned Collector because I do not find it perverse. 15. The learned advocate appearing for the petitioner asserted that the so called whip was not binding on the petitioners. He questioned the legality of the whip on the ground that even the President of Pradesh Congress Committee could not have authorized Shri Ghorpade the observer, to issue such whip without there being resolution of the political party to that effect. He questioned the authority of the President of the committee to issue such whip as the President of the Committee. He said, it was necessary for the complainants (the respondents) to prove that the whip was lawfully issued as per the provisions of the Congress party constitution. He pointed out that as per the provisions of Congress party constitution, the powers of the President of the Pradesh Congress committee, can not be delegated to any other person. He said, it was necessary for the complainants (the respondents) to prove that the whip was lawfully issued as per the provisions of the Congress party constitution. He pointed out that as per the provisions of Congress party constitution, the powers of the President of the Pradesh Congress committee, can not be delegated to any other person. He further pointed out that powers of President of District level Congress committee, can not be delegated further. He was trying to take advantage of such provisions incorporated in Congress constitution to assert that Shri Manikrao Thakare the President of Pradesh Congress Committee could not have delegated his authority to issue whip to the observer Shri Ghorpade and that the President of District Level Congress Committee, Latur Shri Zawar could not have delegated his authority to the official candidate Shri Trimbak Bhise. In order to support his contention, he placed reliance on the judgment of Supreme Court in the case of SadashivH. Patil Vs. Vithal D.Teke & others reported in 2000 (Supp) Bom. C.R. 829. The Supreme Court in order to highlight the importance of the inquiry into the question of disqualification observed as under. 14. A finding as to disqualification under the Act has the effect of unseating a person from an elected office held by him pursuant to his victory at the polls in accordance with the democratic procedure of constituting a local authority. The consequences befall not only him as an individual but also the constituency represented by him which would cease to be represented on account of his having been disqualified. Looking at the penal consequences flowing from an elected councilor being subjected to disqualification and its repercussion on the functioning of the local body as also the city or township governed by the local body the provisions have to be construed strictly. A rigorous compliance with the provisions of the Act and the Rules must be shown to have taken place while dealing with a reference under section 7 of the Act.” The Supreme Court further then took into account the relevant provisions of the Act. For this judgment, in my view, provisions of section 3 are relevant and are quoted below. Section 3 : Disqualification on ground of defection. For this judgment, in my view, provisions of section 3 are relevant and are quoted below. Section 3 : Disqualification on ground of defection. (1) Subject to the provisions of Section 5, a councilor or a member belong to any political party or aghadi or front shall be disqualified for being a councilor 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 a 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 any person or authority authorised by any of them in this behalf, without obtaining in either case, the prior permission of such political party of 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.(highlights and inverted commas are provided by me) 16. As regards the directions of the political party referred to in section 3(1)(b) highlighted above, the Supreme Court observed as under. Thus, the power to issue a direction, popularly called a whip, in order to attract penalty of disqualification has to be issued either by the political party or by aghadi or front to which the councilor belong. The political party or aghadi or front may act collectively or may act through any person or authority. In the latter case the person or authority must be authorized by the political party or aghadi or front in this behalf, i.e. for isuing any direction (whip). The political party or aghadi or front may act collectively or may act through any person or authority. In the latter case the person or authority must be authorized by the political party or aghadi or front in this behalf, i.e. for isuing any direction (whip). If the political party, aghadi or front has any rules or regulations whether known as such or a constitution or called by any other name then the authorisation of the person or authority can be determined by looking into such document which would be available on the record of the Collector having been filed as accompanying the statement in Form I, under Rule 3(1), else the factum of such authorization in this behalf having been given to the person or authority issuing the direction or whip shall have to be proved to the satisfaction of the Collector dealing with a reference under section 7 read with Rules 6,7 and 8. 17. The learned counsel appearing for the petitioners asserted that the respondents / complainants to prove that Shri Ghorpade has such authorisation to issue whip on behalf of the political party. He also asserted that the petitioner therefore, questioned and cross examined Shri Ghorpade and others in respect of the provisions of the congress party constitution. He said that in view of the question raised by the petitioner, the complainant should be able to prove to the satisfaction of the Court that Shri Ghorpade had such authority. So, the question is, whether Shri Ghorpade had political party’s authorisation for issuance of the whip. The answer is in affirmative. 18. The petitioners are members of Indian National Congress. They as its official candidates, who successfully contested the election for the post of Zilla Parishad councilor. They thus formed "Zilla Parishad party" of the their political party. As such, they ought to be aware of the fact that their party could send its observer to Latur for ensuring smooth elections. This observer deposed that as per the prevalent practice of the congress party, he had come equipped with the authority to not only announce the names of the official candidates of the party but even to issue party directions (whip) for ensuring desired voting pattern. He also produced on record the written authority given to him by the President of the party. He also produced on record the written authority given to him by the President of the party. It was issued by the President of Maharashtra Pradesh Congress committee Shri Manikrao Thakare on 25/11/2009 and its copy was marked to the Collector. This document clearly mentions that Shri Ghorpade was given authority to issue whip to the members of the Congress party. The document further mentions that the Indian National Congress, the Nationalist Congress party and other parties had entered into an agreement and he was authorised to use relevant powers pursuant to such agreement. The learned counsel for the petitioners tried to slight the importance of this document. However, this document cannot be brushed aside easily. This was issued long before the election and it cannot be said that the petitioners who are members of Indian National Congress party were unaware of the authority given to Shri Ghorpade in respect of issuance of whip. In my view, the petitioners can not question the legality of the authority given by this document to Shri Ghorpade. 19. As observed above, the petitioners are unable to plead ignorance to the fact that their party has regional committee which is known as Pradesh Congress Committee. They admitted that Shri Manikrao Thakare is the President of the State unit of their party. They are unable to question the party’s decision to send an observer to Latur for this election. The observer has said that sending such observer is a usual practice of the party. It is obvious that due to intra party rivalry the members of the party, are required to be disciplined. For maintaining such descipline, an observer’s presence is necessary. When Shri Ghorpade came to Latur with the brief of the President, the petitioners raised objection to his presence or authority to preside over meetings of the party held for deciding the strategy of the election. It is also on record that the party members including the petitioners ultimately agreed to accept the names of such councilors who would be named as official candidates by the party. So when the names were announced, they could not have defied the decision of the party and could not have raised issue of authority, its delegation to the observer of District President etc.. Neither they raised such objection then. All these defences are untenable and unavailable to the petitioners if raised belatedly. So when the names were announced, they could not have defied the decision of the party and could not have raised issue of authority, its delegation to the observer of District President etc.. Neither they raised such objection then. All these defences are untenable and unavailable to the petitioners if raised belatedly. In such situation, the members of the same party in my view, cannot question the observer’s authority and the Court would also not go beyond his word in search of an appropriate provision in the party constitution. I am agreeing with the Collector’s finding that the observer Shri Ghorpade had lawful authority to issue the whip. 20. The learned counsel appearing for the petitioner also asserted that there is variance between the pleading and the evidence that was lead in support of the complainant's case. I am afraid, I do not accept this contention. The complainant stated that the political parties observer had come to Latur to ensure smooth elections and that he had issued the necessary directions and that he declared the names of the official candidates and even issued written whip under his signature. While recording evidence, the respondents/complainants more or less adhered to this stand. 21. There is one more feature of this case which clearly shows that the petitioners were acting against the interest of their own party and had made up their mind for defying the directions of the party. They can not feign ignorance to the party’s decision to name Trimbak Bhise and Dilip Patil as party’s official candidates. If we see the pattern of voting, it becomes clear that the petitioners not only defied the party’s directions at the time of voting but they ensured that the other councilors belonging to other parties would vote for them. This fact clearly shows that the petitioners since beginning had decided to contest the election and if necessary garner support from councilors from other political parties even though Dhumal and Sambhaji Patil would not get party’s official candidature. The petition should therefore, fail. ORDER 1. The petitions are dismissed. 2. Earlier protection shall continue for four weeks from the date of signature on the order. However, the petitioners shall not take any policy decision for the Zilla Parishad. 3. Record of the lower court shall be remitted back.