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2014 DIGILAW 1859 (BOM)

Gulabrao Mardikar v. Divisional Commissioner

2014-08-22

P.R.BORA, VASANTI A.NAIK

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Judgment : Vasanti A. Naik, J. Rule. Rule made returnable forthwith. The petition is heard finally with the consent of the learned counsel for the parties. By this petition, the petitioner impugns the order of the Divisional Commissioner, Amravati Division, Amravati dated 16/06/2014 recognising the respondent No.3 as the leader of Nationalist Congress Party. Few facts giving rise to the writ petition are stated thus – After the election to the Amravati Municipal Corporation was held on 16/02/2012, the election results were declared and 87 councillors were elected to the Amravati Municipal Corporation. Out of the 87 elected councillors, 17 councillors belonged to Nationalist Congress Party. The petitioner and the respondent No.3 had both contested the election on the ticket of the Nationalist Congress Party. After the elections, the Nationalist Congress Party and 6 other councillors decided to form an agadhi or front and hence, the petitioner, who was elected as a leader of the front, applied to the Divisional Commissioner on 06/03/2012 for registration of the agadhi or front as Nationalist Congress Party Front and also for recognising the petitioner as a group leader of the front. All the members of the aghadi or front including the respondent No.3 had sworn an affidavit that they were the members of the aghadi and had also solemnly declared that any direction by the petitioner as a leader of the front would be binding on them or else they would face disqualification. An affidavit was filed by each of the members of the front, including the respondent No.3 that the information stated in the application and the affidavits was true and correct. It is the case of the petitioner that on 13/03/2012 the constitution of the aghadi was also submitted to the Divisional Commissioner and according to the constitution of the aghadi, the term of the leader of the aghadi or front was for a period of five years. The constitution provided that only the working committee could appoint another group leader. On 11/04/2012 the Divisional Commissioner registered the aghadi and also the name of the petitioner as the group leader of the same. While making the entries in the register by the order dated 11/04/2012, the Divisional Commissioner informed the petitioner and the front that if there was any change in the aghadi or group leader, the Divisional Commissioner should be informed about the same within 30 days from the change. While making the entries in the register by the order dated 11/04/2012, the Divisional Commissioner informed the petitioner and the front that if there was any change in the aghadi or group leader, the Divisional Commissioner should be informed about the same within 30 days from the change. It is the case of the petitioner that the petitioner became aware in the month of March, 2014 that the respondent No.3 had secured a letter from the General Secretary of the State Unit of the Nationalist Congress Party that the respondent No.3 should be recognised as the group leader. The petitioner apprehended that the matter would be decided by the Divisional Commissioner without hearing the petitioner and hence a caveat was filed by the petitioner before the Divisional Commissioner. On 25/03/2014, an application was made by the General Secretary of the State Unit of the Nationalist Congress Party for recognising the respondent No.3 as a leader of the Nationalist Congress Party and for taking an entry in that regard as per the provisions of the Maharashtra Local Authority Members Disqualification Rules, 1987. Since the petitioner had filed a caveat, the Commissioner issued a notice to the petitioner asking him to file reply. It is the case of the petitioner that when the meeting of the Municipal Corporation, Amravati was fixed on 17/06/2014 for elections to the various committees under Section 31A of the Bombay Provincial Municipal Corporation Act, 1949, the Divisional Commissioner hurriedly fixed the matter for hearing on 16/06/2014 by a notice dated 13/06/2014. The petitioner stated various reasons, some of which appear to be genuine, for seeking an adjournment of the matter. The adjournment was refused by the Divisional Commissioner and the Divisional Commissioner, by the impugned order dated 16/06/2014 recognised the respondent No.3 as the leader of the Nationalist Congress Party. The petitioner has impugned the order dated 16/06/2014 by the instant petition. Shri Bhangde, the learned senior counsel appearing on behalf of the petitioner, submitted that the order is clearly illegal inasmuch as the impugned order could not have been passed on a communication from the General Secretary of the original political party, i.e. the National Congress Party as the Nationalist Congress Party and the 6 councillors had formed a front and the Divisional Commissioner had recognised the front and had made an entry in regard to the formation of the front by an order dated 11/04/2012. It is submitted that after the front was formed, the respondent No.3 could not have been recognised as the leader of the Nationalist Congress Party which had joined with the 6 concillors to form the Nationalist Congress Party Front. It is submitted that the procedure prescribed in Rule 3 of the Rules of 1987 was not followed while filing the application for recognising the respondent No.3 as the leader of the Nationalist Congress Party before the Divisional Commissioner. It is submitted that the information required to be supplied by Rule 3(1) of the Rules of 1987 was not supplied and the procedure prescribed by the Rules of 1987 was not followed while applying for recognition of the respondent No.3 as a leader of the Nationalist Congress Party. It is submitted that since the Nationalist Congress Party Front was in existence, no application could have been made for recognising the respondent No.3 as the leader of the original political party, i.e. the Nationalist Congress Party and the Divisional Commissioner also could not have taken the entry of the name of respondent No.3 as the leader of the Nationalist Congress Party. It is submitted that in view of the provisions of Section 31A of the Bombay Provincial Municipal Corporations Act, 1949, specially the second Proviso to Section 31A(1) thereof, after an aghadi or front is formed by two or more recognised parties or registered parties or groups or elected councillors not belonging to any party within a period of one month from the date of declaration of the results of the elections to the Municipal Corporation, the aghadi or front so formed would be deemed to be a registered pre-poll aghadi or front for the purposes of the provisions of the Act of 1986. It is submitted that in the instant case, the agadhi or front was formed within a period of 30 days from the date of declaration of the results of the Municipal Corporation and was registered as such and hence the provisions of the Maharashtra Local Authority Members Disqualification Act, 1986 would apply to the aghadi or front as if it was a registered pre-poll aghadi or front. It is submitted that the impugned order is passed hurriedly without considering the provisions of the Act and the Rules and the respondent No.3 is illegally recognised as a leader of the Nationalist Congress Party, though the original party had formed the Nationalist Congress Party Front along with the 6 concillors. Mrs.Dangre, the learned Government Pleader appearing on behalf of the Divisional Commissioner, supported the impugned order and submitted that the respondent No.3 could have been recognised as a leader of the Nationalist Congress Party. The learned Government Pleader took this Court through the provisions of Section 2-I and 2-j of the Maharashtra Local Authority Members Disqualification Act, 1986 which define 'municipal party' and 'original political party'. A reference to the provisions of the Explanation to Section 31A of the Act of 1949 was also made for supporting the impugned order. The learned Government Pleader referred to the provisions of Rule 2(b1)(i) of the Rules of 1987 and submitted that on a combined reading of the definitions of the term “municipal party”, the “original political party” and the “leader in relation to a municipal party”, it is clear that a “leader in relation to a municipal party” could be a councillor chosen by each political party as its leader and since the Nationalist Congress Party had chosen the respondent No.3 as its leader, by the impugned order, the Divisional Commissioner directed the recording of the name of the respondent No.3 as a leader of the Nationalist Congress Party. The learned Government Pleader sought for the dismissal of the writ petition. Shri Gordey, the learned senior counsel appearing on behalf of the respondent No.3, adopted the submissions made on behalf of the Divisional Commissioner and additionally submitted that the aghadi or front formed within a period of 30 days from the date of declaration of results would be deemed to be a registered pre-poll aghadi or front only for the purposes of the provisions of Section 31A(1) of the Bombay Provincial Municipal Corporations Act, 1949 for appointing or nominating the councillors on various committees. The learned senior counsel relied on the judgment reported in 2012(4) Mh.L.J. 1 (Jeevan v. Divisional Commissioner) and specially paragraphs 24 and 25 thereof to canvass that the parties or individuals forming an aghadi do not lose their political identity after the new political party or aghadi comes into existence. The learned senior counsel relied on the judgment reported in 2012(4) Mh.L.J. 1 (Jeevan v. Divisional Commissioner) and specially paragraphs 24 and 25 thereof to canvass that the parties or individuals forming an aghadi do not lose their political identity after the new political party or aghadi comes into existence. The learned senior counsel sought for the dismissal of the writ petition. On hearing the learned counsel for the parties and on a perusal of the provisions of the Act of 1986 and the Rules framed thereunder, it appears that the Divisional Commissioner could not have recognised the respondent No.3 as a leader of the Nationalist Congress Party. No doubt the petitioner and the respondent No.3 belonged to the original party, i.e. the Nationalist Congress Party and had contested the election on the ticket of the said party. However, within a period of one month from the declaration of the results of the election, the Nationalist Congress Party and 6 other councillors decided to form the aghadi or front. The petitioner applied in accordance with the provisions of Rule 3 of the Rules of 1987 for registering the aghadi or front formed by the Nationalist Congress Party and the 6 councillors and also for recognizing the petitioner as a group leader of the aghadi or front. By an order dated 11/04/2012, the Divisional Commissioner registered the aghadi and also the petitioner as its group leader. In consonance with the provisions of Rule 3 of the Rules of 1987, it was informed to the petitioner by the Divisional Commissioner that if there was any change in the Aghadi or group leader, the same should be informed to the Divisional Commissioner within a period of 30 days from the change. Admittedly, there was no change in the aghadi and the entry in regard to the registration of the aghadi remained in the record as per Rule 5 of the Rules of 1987 till the impugned order dated 16/06/2014 was passed. We fail to understand as to how the General Secretary of the original political party, i.e. the Nationalist Congress Party could have asked the Divisional Commissioner to recognise the respondent No.3 as the leader of the Nationalist Congress Party when there was no entry of the Nationalist Congress Party in the register and the records maintained under the Rules of 1987. The formalities that were required to be followed under the provisions of Rule 3 while making an application for change in the name of the leader were also not followed and the Divisional Commissioner, it appears, had passed the impugned order solely on the basis of the communication issued by the General Secretary of the original political party and recognised the respondent No.3 as a leader of the Nationalist Congress Party, when there was no entry of Nationalist Congress Party in the register maintained by the Commissioner in Form IV as per Rule 5 of the Rules of 1987. After the aghadi was formed and when the aghadi was in existence, the leader of the original political party could not have been selected by the original political party and he could not have been recognised as such. We do not find any force in the submission made on behalf of the Divisional Commissioner that on a combined reading of the provisions of the Act and the Rules a leader of the original political party could have been recognised even after an aghadi is formed and registered. If that is held to be permissible, when aghadis are formed by two or more recognised or registered political parties, each of the political parties so forming the aghadi or front would as well appoint a leader of the original political party. The Act and the Rules, however, do not contemplate such a situation. The petitioner was chosen by the aghadi or front as its leader as per the provisions of Section 2(b1)(i) of the Rules of 1987 and the petitioner was a “leader in relation to a municipal party”. Once an aghadi is formed, none of the original political parties which form the aghadi can select a leader of the original political party unless the aghadi is dissolved, if at all it is permissible to do so. Admittedly, in the instant case, the aghadi was in existence on the date of passing of the impugned order recognising the respondent No.3 as a leader of the Nationalist Congress Party. The Secretary of the State Unit of the Nationalist Congress Party could have neither applied for recognising the respondent No.3 as a leader of the Nationalist Congress Party when the aghadi was in existence nor could the Divisional Commissioner have recognised the respondent No.3 as a leader of the Nationalist Congress Party. The Secretary of the State Unit of the Nationalist Congress Party could have neither applied for recognising the respondent No.3 as a leader of the Nationalist Congress Party when the aghadi was in existence nor could the Divisional Commissioner have recognised the respondent No.3 as a leader of the Nationalist Congress Party. The provisions of the Act and the Rules were not considered, so also the facts of the case were not looked into by the Divisional Commissioner while passing the impugned order. As rightly submitted on behalf of the petitioner, the impugned order is palpably erroneous and the same cannot be sustained. The judgment reported 2012 (4) Mh.L.J. 1 (Jeevan v. Divisional Commissioner) and relied on by the learned senior counsel for the respondent No.3 would not be applicable to the facts of this case. For the reasons aforesaid, the writ petition is allowed. The impugned order is quashed and set aside. Rule is made absolute in the aforesaid terms with no order as to costs. Shri Gordey, the learned senior counsel for the respondent No.3 seeks stay of this judgment for a period of three weeks. The prayer made by the learned senior counsel is strongly opposed by the learned senior counsel for the petitioner. We do not find any reason for granting stay to the judgment. Hence, the prayer is rejected.