Supreme Court of India
KEDAR SHASHIKANT DESHPANDE ETC. ETC.versusBHOR MUNICIPAL COUNCIL AND ORS. ETC. ETC.
- Citation
- 2010 INSC 871
- Decided
- 10 December 2010
- Disposal
- Dismissed
- Bench
- M PANCHAL
Holding
The appellants are disqualified under s.3(1)(a) and s.3(1)(b) of the Act; the merger defence does not apply, the Additional Collector had jurisdiction, and procedural defects in verification are curable and do not affect the order.
Summary
The appellants were elected as councillors of Bhor Municipal Council on the ticket of the NCP, later left the party and formed a new political front. Respondents filed a disqualification petition under the Maharashtra Local Authority Members Disqualification Act, 1986, alleging that the appellants had voluntarily given up NCP membership (s.3(1)(a)) and had violated a party whip (s.3(1)(b)). The appellants contended that the petition was defective for non‑compliance with Rules 6(3) and 6(4), that the Additional Collector lacked jurisdiction under s.2(b), and that a merger under s.5 protected them. The Supreme Court held that the defect in verification was curable, the Additional Collector was duly empowered by the Maharashtra Land Revenue Code, and the merger defence was inapplicable because the original party (NCP) had not merged with any other party. Consequently, the appellants were deemed disqualified under s.3(1)(a) and s.3(1)(b) and the order of the Additional Collector was affirmed.
Issues considered
- The validity of the disqualification petition under s.3(1)(a) of the Maharashtra Local Authority Members Disqualification Act, 1986.
- Whether the merger provision of s.5 of the Act applies to the appellants' new political front.
- Whether the Additional Collector had jurisdiction to entertain the petition under s.2(b) of the Act.
- Whether defects in verification of the petition under Rules 6(3) and 6(4) of the 1987 Rules render the petition invalid.
- Whether failure to publish Form‑I/III in the Official Gazette affects the determination of political affiliation.
- Whether the appellants are disqualified under s.3(1)(b) for contravening the party whip.
- Whether the reference to s.3(1)(c) in the Collector's order invalidates the order.
Legislation cited
- Code of Civil Procedure, 1908s. 99
- Maharashtra Land Revenue Code, 1966s. 13(3)
- Maharashtra Local Authority Members Disqualification Act, 1986s. 2(b), s. 3(1)(a), s. 3(1)(b), s. 3(1)(c), s. 5
- Maharashtra Local Authority Members Disqualification Rules, 1987s. 4, s. 5, s. 6(3), s. 6(4)
- Maharashtra Zilla Parishads and Panchayat Samitis Act, 1951s. 57
- Representation of the People Act, 1951s. 117, s. 81, s. 82, s. 83, s. 86
Subjects
disqualificationlocal authority memberspolitical defectionmerger provisionjurisdiction of Additional Collectorverification defectparty whipMaharashtra law
Judgment
[2010] 15 (ADDL.) S.C.R. 1083
KEDAR SHASHIKANT DESHPANDE ETC. ETC. A
v.
BHOR MUNICIPAL COUNCIL AND ORS. ETC. ETC.
(Civil Appeal Nos.10452-10457 of 2010)
DECEMBER 10, 2010
B
[J.M. PANCHAL AND GYAN SUDHA MISRA, JJ.]
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
F
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
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
Collector to call a meeting for consideration of no confidence
0
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 non-
petitioner 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
jurisdiction of said authority in further appellate proceedings
8
- 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.
F
Dismissing the appeals, the Court
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, E
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
F
Prasad Singh v. Chairman, Bihar Legislative Council and
Others (2004) 8 sec 747 - relied on.
2.1. The contention that the Additional Collector had
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
Aghadi or Front with another political party or Aghadi or
0
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
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
H
•
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
clear- that a councillor or a member belonging to any
8
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, Form-
111 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
Authority Members Disqualification Act, 1986 is basically
0
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.
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
H
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 sub-
C 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
. case of respondent Nos. 4 & 5 that original i;.olitical party
0
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
(1991) 3 sec 375 relied on Para 10
H
KEDAR SHASHIKANT DESHPANDE ETC. v. SHOR 1099
MUNICIPAL COUNCIL
(2004) s sec 747 relied on Para 11 A
(1975) 3 sec 254 relied on Para 14
(2001) 4 sec 210 relied on 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 F
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
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)
No. 7481/2010
c
4) Vijaya Ananta Ulhalakar - Petitioner in SLP
(C) No.7478/2010
5) .
Kedar Shashikant Deshpande - Petitioner in
SLP (C) No.7477/2010
D
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 A
8) Shankar Saban Pawar
C) Independent - 1 Councillor
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.
Jayshree Shinde gave a letter to the District Collector informing
8
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, B
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,
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 effPct from January 23, 2010 as councillors
of the Sanghathana.
F
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. G
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.
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. According to the learned
counsel for the appellants the Additional Collector had
permitted the respondent Nos.4 and 5 to verify the petition on
January 8, 2010 behind' the back of the appellants and thereby
committed illegality which vitiates the impugned judgment. On
C the other hand Mr. Shekhar Naphade, learned senior counsel
for the respondents argued that failure to verify the documents
annexed to the disqualification petition at the time of filing of
the petition or failure to file a supporting affidavit in terms of
Rule 6(4) of the Rules cannot be regarded as having vitiating
effect on the disqualification petition and no illegality was
0
committed by the Additional Collector when permission to
verify the documents was granted by him on January 8, 2010.
Rule 6(4) of the Rules which deals with verification of
disqualification petition and annexures thereto, reads as under:-
E
"(4) Every Petition and any annexure thereto shall be
signed by the petitioners and verified in the manner laid
down in the Code of Civil Procedure, 1908 for the
verification of pleadings."
F Whereas Rule 6(3) of the Rules is as follows: -
"(3) Every Petition -
(a) shall contain a concise statement of the material
G 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 person, a statement
H containing the names and address of such person
KEDAR SHASHIKANT DESHPANDE ETC. v. BHOR 1105
MUNICIPAL COUNCIL [J.M. PANCHAL, J.]
and the gist of such information as furnished by A
each such person."
A bare reading of the above quoted provisions makes it
abundantly clear that these provisions are directory in nature
and defect in verification of the petition is curable. The F3
requirement of Rule 6(3) and 6(4) of the Rules is that the petition
shall contain a concise 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 reli~s on any information furnished to him by any/
person, the statement containing names and addresses of
c
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. Further, the defect in verification does not affect D
the jurisdiction of the Collector to entertain and decide a
disqualification petition.
8. In H.D. Revanna vs. G. Puttaswamy Gowda and_others
AIR (1999) SC 768, the question considered by this Court was E
whether defect in verification of the Election Petition or in the
affidavit accompanying Election Petition filed under the
provisions of Representation of the People Act 1951 was fatal.
After noticing the provisions of Section 81, 82, 83, 86 and 117
of the Representation of People Act 1951 this Court has lneld F
that defect in verification of the Election Petition or in the
affidavit accompanying El~ction Petition is curable and not fatal. ·
9. fn Murarka Radhey Shyam Ram Kumar vs. /=?oop
Singh Rathore (1964) 3 SCR 573, a Constitution Bench of this
Court has held in unmistakable terms that a defect in the G
verification of an Election Petition as required by Section
83(1)(c) of the Representation of the People Act, 1951 is not
fatal to the maintainability of the petition and that a defect in
the, affidavit was not a sufficient ground for dismissal of the
petitlon. Another Constitution bench of this Court, has held in H
1106 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A Ch. Subbarao vs. Member, Election Tribunal, Hyderabad
(1964) 6 SCR 2B. that even with regard to Section 81(3) of
the Representation of the People Act 1951, substantial
compliance with the requirement thereof is sufficient and only
in cases of total or complete non-compliance with the provisions
B of Section 81 (3), it could be said that the Election Petition was
not one presented in accordance with the provisions of that part
of the Act. The said principle of substantial compliance was
· followed by this Court in K.M. Mani vs. P.J. Antony (1979) 2
s::c 2'_ 1.
c 10. In F.A. Sapa vs. Singora (1991) 3 SCC 375, this Court
held that a defect in the verification of the petition as well as a
defect in the affidavit can be cured and it is not fatal to the
maintainability of the petition. The failure to verify the annexures
to the petition at the time of filing of the petition in terms of Rule
D 6(4) and 6(3) of the Rules would not vitiate the proceedings nor
would render the petition invalid nor would affect the jurisdiction
of the Collector to entertain and decide the Disqualification
Petition.
E 11. In the case of Dr. Mahachandra Prasad Singh vs.
Chairnan, Bihar Legislative Council and Others (2004) 8
SCC 747, while interpreting the provisions of Schedule X of
the Constitution, in a petition involving the issue of
disquc:lification of a Member of Legislative Council belonging
F to the Indian National Congress under the Bihar Legislative
Councl Members (Disqualification on Ground of Defection)
Rules, 1994, this Court has considered the question whether
infraction of those Rules would render the entire proceedings
initiateo by the Chairman invalid or without jurisdiction. After
G examinilg the scheme of the Rules, this Court has held that the
Rules b~ing in the domain of the procedure are intended to
facilitatethe holding of inquiry and not to frustrate or obstruct
the same by introduction of innumerable technicalities. It is,
further, h~ld by this Court that being subordinate legislation, the
H rules camot make any provision which may have the effect of
KEDAR SHASHIKANT DESHPANDE ETC. v. BHOR 1107
MUNICIPAL COUNCIL [J.M. PANCHAL, J.]
curtailing the content and scope of substantive provisions of the A
Act. It is also held in the said decision that the provisions of
Rules 6 and 7 of the Rules of 1994 are only directory in nature
and on non-filing of an affidavit as required under sub-rule 4
and order VI, Rule 15 CPC, the disqualification petition would
not be rendered invalid nor would the assumption of jurisdiction B
by the Chairman on its basis would be adversely affected or
rendered bad in any manner. It may be mentioned that the
Maharashtra Local Authority Members (Disqualification Rules)"
1987 are pari-materia with the Bihar Legislative Council
(Disqualification on the Ground of defection) Rules 1994 and, c
therefore, the principles laid down in the abovequoted decision
would be applicable with all force to the interpretation to be
placed on the Rules of 1987. In the above quoted decision this
Court has gone to the extent of saying that there is no lis
between the person moving the petition and the member of the D
House who is alleged to have incurred disqualification.
According to this Court it is not an adversarial kind of litigation
and, therefore, even if the petitioner withdraws the petition it will
not make a difference as the duty is cast on the Chairman or
the Speaker to carry out the mandate of the constitutional
provisions. This Court has held that the provisions of Xth E
Schedule of the Constitution read with Articles 102(2) and
191 (2) operate on their own and the only purpose ofthe petition
is to bring the relevant information about disqualification to the
notice of the Chairman. In the present case also Section 7 lays
down that the Collector has to decide the question of F
disqualification on a reference made to him. The reference will
have to be regarded as one of the modes of bringing the
relevant information to the notice of the Collector. Sections
3(1 )(a) and 3(1 )(b) operate on their own force and moment the
conditions prescribed therein are satisfied, a corporator stands G
disqualified. The reference to be made to the competent
authority is only for the purpose of bringing to the notice of the
competent authority the relevant information about the
disqualification. Section 7 of the Act does not contemplate a
lis between the two private parties in a disqualification petition. H
1108 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.
A It may be filed fo: J limited purpose of bringing relevant
information to the notice of the Collector who is duty bound to
decide the petition in accordance with law.
12. However, in this case the verification was carried
subsequently with the permission of the Additional Collector
8
and as regards the supporting affidavit it has been pointed out
in para (1) of the counter affidavit of respondent Nos. 4 and 5
filed in the Special Leave Petition that the petition was
supported by an affidavit which is not controverted by the
appellants. The claim of the appellants that before granting
C permission to the respondents to verify the annexures, the
appellants should have been heard and, therefore, verification
of the annexures done on January 8, 2010 should be regarded
as no verification in the eyes of law cannot be accepted.
Verification of the disqualification petition and/or annexures
D accompanying the petition is a matter 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, this Court is of
the opinion that it was not necessary for the competent authority
E to hear the appellants in the disqualification petition before
granting permission to the respondent Nos. 4 and 5 to verify
the disqualification petition and/or annexures accompanying the
petition. SectiOQ 99 of the CPC or in any view of the matter,
the principle an'aJogous thereto protects the validity of the
F 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 so-called irregularity regarding
G verification of the petition 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 to
H remove such lacuna.
KE[' 'R SHASHIKANT DESHPANDE ETC. v. BHOR 1109
MUNICIPAL COUNCIL [J.M. PANCHAL, J.]
13. Further, the appellants have failed to point out that A
failure on the part of the responde_nts to verify the annexures at
the time of filing of the petition and 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
circumstances of the case this Court is of the opinion that non- B
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 jurisdiction· ofthe Additional Collector
to decide the same and, therefore, the first contention raised
on behalf of the appellants is rejected. c
14. The next contention raised by the learned counsel for
the appellants that the Additional Collector had no jurisdiction
to entertain and decide the disqualification petition filed by the
respondents because he is not the Collector within the meaning
of Section 2(b) of the Act has no substance. As rightly pointed D
out by the learned counsel for the respondents, this argument
. was never raised before the Additional Collector who decided
the disqualification petition nor this point was raised before the
High Court. In Remington Rand of India Ltd. vs. Thiru R.
Jambulinqam (1975) 3 SCC 254, this Court, did not allow the E
plea of lack of jurisdiction to be taken for the first
ime in an appeal, after the appellant having submitted to th€! jurisdi
tion of the Authorit
in earlier proceedings. The question whether Additional F
Collector had jurisdiction to entertain and decide the
__ disqualification petition filed by the respondents is essentially
a question of fact. It is pertinent to note '.hat Section 13(3) of
the Maharashtra Land Revenue Code, 1966 contemplates
statutory delegatiof' in favour of the Additional Collector. G
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 the
first time before this Court the point that Additional Collector H
. '
1110 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A had no jurisdiction to entertain the disqualification petition filed
by the respondents. Even otherwise, the record clinchingly
shows that the appellants had submitted to the jurisdiction of
the Additional Collector and participated in the proceedings
before the Additional Collector without any reservation.
B Therefore, having lost before the Additional Collector, they
cannot turn round and challenge the jurisdiction of the Additional
Collector for the first time in the appeals filed under Article 136
of the Constitution. It is well settled that if a person has
submitted to the jurisdiction of the Authority, he cannot
c 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 the opportunity to place on record notification
issued under the provisions of Maharashtra Lan<:f Revenue
D Code, 1966 to establish that the Additional Collector was
delegated the powers of the Collector and was competent to
decide Disqualification Petition. During the course of hearing,
the learned counsel for the State Government has produced
before this Court a copy of the Notification No.PWR4983/
E 75289(103)-L-2 dated 24.3.1967 issued under sub-section (3)
of Section 13 of the Maharashtra Land Revenue Code, 1966
for perusal of the Court. Before adverting to the same, it would
be relevant to notice Section 13(3) of the Act which reads as
follows:-
F "13(3). The Additional Commissioner and the Assistant
Commissioner, and the Additional Collector and the
Additional Tahsildar shall each exercise within his
jurisdiction or part thereof such powers and discharge such
duties and functions of the Commissioner, the Collector or,
G as the case may be, the Tehsildar under the provisions of
this Code or.µnder any law for the time being in force, as
the State Government may, by notification in the Official
Gazette, direct in this behalf."
The notification mentioned above reads as under: -
H
KEDAR SHASHIKANT DESHPANDE ETC. v. BHOR 1111
MUNICIPAL COUNCIL [J.M. PANCHAL, J.]
"No.PWR.4983/75289 (103)-L-2: - A
In exercise of the powers conferred by sub-section (3) of
Section 13 of the Maharashtra Land Revenue Code, 1966
(Mah. XLI of 1966) and in supersession of all previous
notifications in this behalf, the Government of Maharashtra
B
hereby directs that the Additional Collectors of all the
districts shall exercise within their respective jurisdiction
all the powers and discharge all the duties and functions
of the Collector under the provisions of the said Code and
under any law for the time being in force.
c
UNF 1467(i)-R, dated 14.8.1967, M.G.G., pt.IV-B, dated
24.3.. 1967, page 2048."
The meaningful reading of the above quoted notification
makes it clear that the Additional Collectors are delegated o!
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 Members' Disqualification Act, 1986 is a law for the
time being in force. Therefore, in this case the Additional
E
Collector, Pune was competent to entertain, hear and decide
the disqualification 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 he is not Collector within the meaning of Section 2(b)
of the Act.
F
15. 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 G
decide the same. In Rajendra Singh Rana & Ors. vs. Swami
Prasad Maurya & ors. (2007) 4 SCC 270, where the issue of
disqualification of MLAs arose before this Court, the Court
observed that normally the Court might not proceed to take a
decision for the first time when the authority concerned has H
1112 SUPREME COURT REPORTS [201 OJ 15 (ADDL.) S.C.R
A failed to do so, but if a decision by the Court is warranted, for
the protection of the constitutional scheme and constitutional
values the Court can take a decision. In the said case 13
members of B.S.P. who had voluntarily given up their
Membership of their original political party were sought to be
B disqualified under para 2 of Xth Schedule to the Constitution.
The claim on behalf of the MLAs sought to be disqualified and
others who had gone out from B.S.P. with them, was that the
disqualification was subject to the provisions of para 3, 4 and
5 of the Xth Schedule and since there was a split,
cdisqualification was not attracted. This Court proceeded to
examine the question whether the 13 members were
disqualified or not because if the 13 members were found to
be disqualified, their further continuance in the Assembly even
for a day would be illegal and unconstitutional.
·D 16. The question whether the appellants have incurred
disqualification within the meaning of provisions of the Act of
1986 read with the Rules of 1987 has been argued at length
before this Court. Remitting the matter to the competent
authority at this stage would result into avoidable delay. The
E relevant material to enable this Court to ·decide the issue
mentioned above is already placed before this Court by the
parties. Therefore, the question mentioned above is considered -
by this Court in detail. Under the circumstances, the plea thcit
Additional Collector, Pune had no jurisdiction to decide
F disqualification petition filed by the respondents need not detain
in this Court any further.
17. The argument that the appellants would not be liable
to be disqualified in view of sub-Section(1) of Section 5
G 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. It may be
mentioned that the plea of merger has not been specifically
taken any.vhere in the pleadings by the appellants, though, in
the pleadings there is a reference to Section 5 of the Act. The
--H
KEDAR SHASHIKANT DESHPANDE ETC. v. BHOR 1113
MUNICIPAL COUNCIL [J.M. PANCHAL, J.]
appellants have failed to furnish relevant details, such as, when A ·
their Front or a Aghadi merged with the Congress (I) and
whether the district President of Congress (I) and/or other
official of Congress (I) had agreed to the:: merger of the fro,nt of
the appellants with Congress (I) etc. The pleadings of the
appellants before the Additional Collector and the High Court, B
in fact suggest a split of 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 is no mention
of split in the NCP or appellants joining the Congress (I) party. c
It may be mentioned that the 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.
18. Even otherwise also, the plea of appellants that their
front had merged with Congress (I) has no factual basis. There D
is nothing on the record to indicate that Co:igress (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 Aghadi, E
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
tlisqualification under Section 3 of the Act. In this case the F
original party of the 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 is admitted by the appellants is that they had
separated from their original political party viz., NCP and had G
formed a separate group known as Shor Shahar Vikas
Swabhimani Sanghathana party. Therefore, this Court is of the
firm opinion that provisions of Section 5 are not attracted to the
facts of the present case and, plea based on merger cannot
be accepted. Mr. Shekhar Naphade, learned senior advocate H_
1114 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A for the respondent Nos. 4 and 5 submitted that the petitioners
had incurred disqualification under Section 3(1)(a) of the Act
as they had voluntarily given up membership of NCP. In
response to this argument, it was contended by Mr. Arvind V.
Savant, learned senior counsel for the appellants that this point
B was never urged either before the Additional Collector or before
the High Court and, therefore, the same should not be permitted
to be agitated for the first in the SLP nor the same should be
considered by the Court in ttie appeals filed by disqualified
appellants. On consideration of rival submissions, this Court
c finds that what is sought to be contended by the respondents
is legal effect of the proved facts on the record of the case. The
point which is sought to be argued by the learned counsel for
the respondent Nos. 4 and 5 is a pure question of law and the
Court has to merely look to the admitted facts of the case. To
D ascertain whether the appellants have incurred disqualification
in terms of Section 3(1)(a) of the Act it is necessary for the
Court to notice the said provisions. Section 3(1 )(a) reads as
under:
"3. (1) Subject to the provisions of Section 5 a councillor
E or a member belonging to any political party or aghadi or
front shall be disqualified for being a councillor or a
member -
(a) If he has voluntarily given up his membership of such
F political party or aghadi or front;"
The fact that the 6 appellants had contested election as
councillors of Bhor Municipal Council, District Pune as
candidates of NCP is not in dispute. It is also not in dispute
that Mr. Yashawant Baburao Dal who was appointed as Prated/
G Gatneta of NCP had submitted the information in Form I as per
Rule 3(1 )(a) of the Rules to the District Collector stating the
names and addresses of 9 councillors of NCP, wherein names
of the present six appellants were also included. It is not in
dispute that the six appellants had submitted the information
H in Form Ill as per Rule 4(1} of the Rules mentioning that each
KEDAR SHASHIKANT DESHPANDE ETC. v. BHOR 1115
MUNICIPAL COUNCIL [J.M. PANCHAL, J.]
of them was elected as councillor and was affiliated to political A
party namely NCP. It is the specific case of the appellants that
after election of President and Vice President of Shor
Municipal Council on July 19, 2008, the appellants had left NCP
and formed Shor Shahar Vikas Swabhimani Sanghathana on
December 22, 2009. It is also their case that Mrs. Jayshree B
Rajkumar Shinde who has filed SLP arising out of Writ Petition
No.966/10 was appointed Prated of the Sanghathana. On
December 23, 2009 she had given a letter to fhe District
Collector to that effect she had also submitted Form I as per
Rule 3(1 )(a) of the Rules, whereas, all the 6 appellants had c
submitted Form Ill as per Rule 4(1) of the Rules. Thus, it is
admitted by the appellants themselves that they had left NCP
party. What is the effect of the admitted fact has to be taken
into consideration by this Court. As mentioned above Section
3(1 )(a) without any qualification or rider provides that a 0
councillor or a member belonging to any political party or
aghadi or front shall be disqualified, if he has voluntarily given
up his 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 the
Court while hearing appeals arising out of the petitions filed E
before the High Court under Articles 226 and 227 of the
Constitution. The learned counsel for the appellants could not
argue before this Court that the appellants had not incurred
disqualification in terms of Section 3(1 )(a) of the Act. The only
contention which was raised was that the plea was advanced F
for the first time by the learned Counsel for the respondents
before the Supreme Court and, therefore, the same should not
be taken into consideration. As observed earlier, this Court is
of the opinion that the Court has not to investigate or inquire
into any facts at all but has to consider the legal effect of the G
proved facts. 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 and, therefore, they are not entitled
to any of the reliefs in the present appeals.
H
1116 SUPREME COURT REPORTS [2010] 15 (ADDl.) S.C.R
A 19. It was further argued by the learned counsel for the
respondent Nos~ 4 and 5 that the appellants had also incurred
disqualification under Section 3(1 )(b) of the Act as they had
failed to obey the whip issued to them by NCP and had voted
contrary to the direction issued by NCP. Elaborating the said
B argument it was pointed out by the learned counsel for the
respondent Nos. 4 and 5 that on December 23, 2009 a whip
was issued to the appellants requiring them not to vote in favour
of any'resolution or motion for removal of the President or the
Vice President of the Bhor Municipal Council or to sign any
c requisition for calling of the meeting for removal of the President
or the Vice President. The record establishes though the said
whip was duly served on the appellants, they had refused to
acknowledge the same and therefore whip was published in
the newspaper dated December 20, 2009. The learned counsel
D further pointed out that despite the whip, the appellants had not
only signed the requisition for calling the meeting for removal
of the President and/or the Vice President but also voted in
favour of no confidence motion. According to the learned
counsel for the respondent Nos. 4 and 5 the fact that the
appellants had supported the move to bring about no
E confidence motion and voted in favour of the said motion is
evident from their own letter dated December 29, 2009
addressed by Mrs. Jayshree Rajkumar Shinde who was
appointed as Pratod/Gatneta of the Sanghathana to the
Collector. It was contended that pursuant to the requisition, the
F Collector had convened a meeting on December 30, 2009 for
considering the motion of no confidence against the President
who was a member of NCP is not in dispute and, therefore,
for disobeying whip issued by the authorized person of the party
the appellants should be regarded to have incurred
G disqualification also under the provisions of Section of 3(1 )(b}
of the Act. In reply, it was contended by the learned counsel for
the appellants that this point was not argued bP.fore the
Additional Collector or High Court and, therefore, should not be
permitted to be urged for the first time in appeals filed by the
H appellants nor to be considered by this Court
KEDAR SHASHIKANT DESHPANDE ETC. v. SHOR 1117
MUNICIPAL COUNCIL [J.M. PANCHAL, J.]
20. On consideration of the rival submissions advanced A
at the Bar by the learned counsel for the parties, this Court finds
that this plea raised by the learned Counsel for respondents
does not involve at all determination of any quL.stion of fact.
Here also the Court will have to consider the legal effect of
admitted and proved facts. The record of the case indicates B
that after election results were published in Maharashtra
Government Gazette of June 27, 2008, one independent
councillor that is Mr. Vittal"@ Lahu Ramchandra Shinde had
joined NCP immediately that is on the same day itself. Thus,
the strength of NCP councillors in Shor Municipal Council, c
District Pune, was of 9 councillors. The record unerringly
establishes that on June 27, 2008 Mr. Yashawant Baburao Dal
who has filed SLP No. 7479 of 2010, was appointed as Prated/
Gatneta of NCP. The record would further show that on
December 21, 2009 Mr. Yashawant Baburao Dal had resigned D
from the post of Pratod/Gatneta of NCP and the resignation was
accepted on December 22, 2009. In place of Mr. Y.B.Dal, NCP
Councillor Mr. Ganesh Anant Pawar was appointed as Prated.
Thereafter, the six appellants who had left NCP had formed the
Sanghathana and Mrs. Jayshree· Rajkumar Shinde was E
appointed as Prated of the said Sanghathana. It is the case of
the appellants themselves that six councillors of the
Sanghathana and eight councillors of Congress (I) had
/submitted a requisition dated December 29, 2009 for moving
no confidence motion against the President Mr. Vittal Shinde.
The evidence on record shows that before the six councillors F
of the Sanghathana along with eight councillors of Congress
{I) had submitted requisition for no confidence motion against
the President on December 29, 2009, a whip was issued to
the appellants and other members of the NCP on December
23, 2009 by Mr. Ganesh Anant Pawar who was Prated of NCP, G
requiring the appellants and others not to vote in favour of any
resolution or motion for removal of the President and Vice
President of the Bhor Municipal Council and not to sign any
requisition for calling meeting for the removal of the President
and the Vice President. The assertion made by the respondent H
1118 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R
A Nos. 4 & 5 is that the whip was sought to be served on the
appellants but they had refused to give acknowledgement and
therefore the said whip was published in the newspaper dated
December 8, 2009. There is no manner of doubt that the Prated
of NCP had sensed that a move was afoot to bring no
B 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 from joining the move for removal of
c President or Vice President of the Council. The whip which was
published in the newspaper dated December 28, 2009 forms
part of the record. There is no manner of doubt that by the said
whip it was directed to the councillors of NCP not to sign any
requisition for bringing a motion of no confidence and also not
D to support any such no confidence motion. Despite the whip,
the appellants had not only signed the requisition requesting
the 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. This is evident from the
E contents of letter dated December 29, 2009 addressed by Mrs.
Jayshree Rajkumar Shinde who was Prated of the
Sanghathana to the Collector. Section 3(1 )(b) of the Act reads
as under:
"3. (1) Subject to the provisions of section 5 a councillor
F or a member belonging to any political party or aghadi or
front shall be disqualified for being a councillor or a
member-
(b) if he votes or abstains from voting in any meeting of a
Municipal Corporation, Municipal Council, Zilla Parishad
G
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
H
_ KEDAR SHASHIKANT DESHPANDE ETC. v. BHOR 1119
MUNICIPAL COUNCIL [J.M. PANCHAL, J.]
or front, person or author~ and such voting or abstention A
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
8
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 Parishacls and
Panchayat Samiti5 Act, 1961 shall not be condoned under
this clause;
c
Explanation - For the purposes of this section -
(a) a person elected as a councillor, or as the case may
be, a member shal! be deemed to belong to the
political party or aghadi or front, if any, by which he D
was set up as candidate for election as such
councillor or member;
(b) a nominated councillor shall
(i) where he is a member of any political party E
or aghadi or front on the date of his
nomination be deemed to belong to such
political party or aghadi or front,
(ii) in any other case, be deemed to belong to
F
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;
G
(c) a 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 Panchayat
Samitis Act, 1991." H
1120 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A An analysis of the ab0ve noted provisions makes it more
than 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
B 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.
21. According to the explanation (a), for the purposes of
Section 3 of the Act a person elected as a councillor or as the
C 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 councillor or member. The
fact that each of the six appellants was set up as a candidate
for election as councillor of Shor Municipal Council by NCP is
D not in dispute. Therefore, for the purposes of Section 3 of the
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 is not in disputed by them before
this Court. Therefore, on the facts and in the circumstances of
E the case it will have to be held that appellants had also incurred
disqualification in terms of Section 3(1 )(b) of the Act.
22. The contention raised by the learned counsel for the
appellants is that the failure on the part of the Collector, District
F Pune, to comply with the provisions of Rule 4(3/ of the
Disqualification Rules 1987 namely failure to publish the
summary of information furnished by the Councillor in the
Maharashtra Government Gazette as also the failure to comply
with Rule 5(1) of the said Rules i.e. failure to maintain in Form
IV, a register based on the information furnished under Rule (3)
G and (4) in relation to he Councillor, are fatal and, therefore, the
appeals should be accepted.
23. In answer to this argument it was pointed out by the
learned counsel for the respondent Nos. 4 and 5 that this plea
H was not raised by the appellants before the High Court and,
KEDAR SHASHIKANT DESHPANDE ETC. v. BHOR 1121
MUNICIPAL COUNCIL [J.M. PANCHAL, J.)
therefore, should not be permitted to be raised in the instant A
appeals and alternatively it was argued that the Rules in
question do not lay down that a political affiliation of the
councillor come? into being only upon submission of Form-I,
Form-Ill and/or publication of information n the Official Gazette.
What was maintained by the learned Counsel for the 6
respondent Nos. 4 and 5 was that the submisEion of Form-I,
Form-Ill and/or publication of information in the Official Gazette
etc. is/are only for the purpose/s of record and to furnish an
evidence about the political affiliation of the councillor. The
failure to file Form-I, Form-Ill and/or publication of information c
in the Official Gazette does not mean that the appellants did
not belong to NCP. It was pointed out by the learned counsel
for the respondent Nos.4 & 5 that Form-I, Form-Ill and/or
publication in the Official Gazette merely have an evidentiary
value and that apart there can be other evidence indicating the D
political affiliation of a councillor. According to the learned
counsel for the respondent Nos. 4 and 5, the party on whose
_ ticket the councillor has contested and won the election is the
original political party to which he belongs and the evidence of
th~ same can be through scurces other than the aforesaid
E
Form-I, Form-Ill and/or publication in the Official Gazette and,
therefore, the submission made on behalf of the appellants has
no, substance and should not be accepted by the Court.
24. On scrutiny of the record, it becomes evident that a
statement containing the names and addresses of councillors F
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 party to which the councillor belongs. As G
per rule 4(3) summary of information furnished by the councillor
to 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 H
1122 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R
A of the councillor would come into existence only upon
submission of either Form-I, Form-Ill and/or publication of
information in the Official Gazette. It is rightly contended by the
learned counsel for the respondent Nos.4 & 5 that these forms
and publication in the Official Gazette have merely an
B evidentiary value which would prima facie establish that a
councillor belongs to a particular political affiliation and nothing
more. The. alleged non-availability of the evidence relating to
the political affiliation of the appellants in the Form-I, Form-lrl
and/or publication in the Official Gazette would not mean that
c the appellants did not belong to NCP. Form-I, Form-Ill and/or
publication of information in the Official Gazette merely has an
evidentiary value. Though in a given case apart from the same,
there can be other evidence indicating the political affiliation
of the councillor. Explanation to Section 3 of the Act clearly
indicates that the councillor belongs to that political party upon ·
0
whose ticket the councillor has contested the election and won
the election.
25. Therefore, the contention that based on the alleged
breach of Rule (3) and Rule (4) of the Rules of 1987 has no
E substance and cannot be accepted.
26. The argument that there was total non application of
mind on the part of the Additional Collector in passing the
impugned order of disqualification on January 29, 2009
F purporting to exercise powers under Section 3(1 )(c) of the Act
of 1986 and, 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 inct 1rred disqualification under Section 3(1 ){a) when they
G left NCP. It was never their case that 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
January 21, 2010 of which undue advantage is sought to be
taken. In catena of decisions, this Court has held that merely
H quoting wrong provisions of the statute while exercising power
KEDAR SHASHIKANT DESHPANDE ETC. v. BHOR 1123
MUNICIPAL COUNCIL [J.M. PANCHAL, J.)
would not invalidate the order passed by the authority if it is A
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 of 1986 inter-alia provides that a "nominated
member in relation to a Panchayat Samiti includes an associate
member, referred to in Clause (c) of sub-Section (1) of Section B
57 of the Maharashtra Zilla Parishads and Panchayat Samitis
Act 1951. It is not the case of the appellants that they are either
associate members or nominated memoers 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 c
because of difference in Vernacular and English version of the
Act of 1986. On the facts and in the circumstances of the case
this Court is of the firm view thaLthe appellants had incurred
disqualification under Section 3(1 )(a) of the Act as pleaded by
the respondent Nos.4 & 5 and not under Section 3(1)(c) of the D
Act as mentioned by the Collector.
27. What is noticed by this Court is that the Act of 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). The appeals cannot be accepted on tt:e E
ground that a wrong provision of law is mentioned inadvertently
by the Collector in his order.
28. The contention that it is well settled that the Court
should not interfere with the election of the democratically F
elected candidate and, therefore, the appeals should be
accepted is difficult to accept. It is true that it is laid down in a
series of reported decisions of this Court that the Court normally
should not lightly interfere with the election of a democratically
elected candidate. However, here in this case the Court finds G.
that the appellants had incurred disqualification under the Act.
The question of disqualification of the appellants was raised
by respondent Nos. 4 & 5 and, therefore, not only the
Compe,t~nt Authority under the Act was required to decide the
said question, but this Court also has to determine the question
H
1124 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A whether disqualification is 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 have been democratically elected
B candidates. However, merely because they are democratically
elected candidates, it would be wrong to contend that they can
never be disqualified. If such an interpretation as suggested by
the learned Counsel for the appellants· is accepted, it will defeat
the object of the Act, which cannot be countenanced.
c 29. The contention that the respondent Nos. 4 & 5 have
acted malafide in co-opting two councillors on June 8, 2010 and
in constituting 5 new committees on July 22, 2010, has also
no substance. It may be mentioned that there was no stay
against co-option of the councillors nor there was stay relating
D 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.
30. Further the co-option of the 2 councillors on June 8,
E 2010 and the constitution of 5 new committees on July 22, 2010
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 & 5 had acted malafide
F in resorting to co-option of two councillors on June 8, 2010 and
constitution of 5 new committees on July 22, 2010.
31. The plea that Additional Collector, Pune failed to
exercise jurisdiction vested in him by not deciding the
preliminary issue as to maintainability of the disqualification
G 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 has no substance.
H 32. From the record it is evident that one of the preliminary
KEDAR SHASHIKANT DESHPANDE ETC. v. BHOR 1125
MUNICIPAL COUNCIL [J.M. PANCHAL, J.]
points raised by the appellants before the Collector was that A
Section 5(2) of the Act deals with merger and in this case
merger had taken place and, therefore, the disqualification
petition was not maintainable. As noticed earlier the case of
the respondent Nos. 4 & 5 was that by voluntarily giving up
membership of NCP ~he appellants had incurred B
disqualification as councillors under Section 3(1) (a) of the Act.
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 provides that in case of such merger
councillor or a member should not be disqualified under sub- C
Section ( 1) of Section 3 of the Act. It was never the case of the
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 case of respondent Nos.
D
4 & 5 that original political party of the appellants namely NCP
had merged with any other political party. Therefore, there was
nothing to be decided as preliminary issue for the purpose of
ascertaining whether the disqualification petition filed by the
respondent Nos. 4 & 5 was maintainable. The Additional
Collector did not commit any error in not deciding so called E
preliminary issue relatirig 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.
F
33. The net result of the above discussion is that this Court
does not find any substance in the appeals and, therefore, the
appeals which lack merits deserve dismissal.
34. For the foregoing reasons the appeals fail and are G
dismissed. There is no order as to costs.
B.B.B. Appeals dismissed.
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