Full Judgment Text
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PETITIONER:
SHRI DATTATRAYA MARUTI BAWALEKAR, & OTHERS
Vs.
RESPONDENT:
PANDURANG DAGADU PARTE AND ORS.
DATE OF JUDGMENT: 29/04/1998
BENCH:
S.C. AGRAWAL, S. RAJENDRA BABU
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
Rajendra Babu, J.
The appellants in this batch of cases were elected as
members of the Mahabaleshwar Devanstan Municipal Council in
the elections held on 1st December, 1996. There are 17 wards
in the council and 17 councillors were elected. At the time
of election the councillors so elected did not associate
with any political party or Aghadi or Front. They having
contested as independent candidates on 2nd December, 1996 a
meeting of these councillors was held and they formed
themselves into an Aghadi Front with the name Mahabaleshwar
Giristhan Nagar Parishad Shahar Vikas Aghadi. On 17.12.1996
the appellants informed respondent No. 3 that they have
formed a Front as aforesaid. On 18.12.1996 the names of the
appellants were published in the official gazette. On
23.12.1996 elections were proposed to be held to the post of
President as per a notification issued on 23.12.1996 to be
held on 31.12.1996. An application was filed by respondent
No.1 who is an elected councillor on 26.12.1996 intimating
about the formation of the Front by the appellants and
requesting the respondent No.3 to disqualify the appellants
on the ground of defection as set forth in Section 3(2) of
the Maharashtra Local Authority Members’ Disqualification
Act, 1986 (hereinafter referred to as "the Act" for
brevity). An order was made by respondent No.3 on 28.12.1996
rejecting the said application. A writ petition was
preferred before the High Court challenging the decision of
respondent No.3 in rejecting the application filed by
respondent No.1.
On 23rd December, 1996, the Collector issued a notice
conventing a meeting to be held on 31st December, 1996 for
electing the President of the council for which the Aghadi
had sponsored appellant No.4 as its candidate and respondent
No.1 had issued a whip to all its councillors to vote for
the Aghadi candidate. In the meeting held on 31st December,
1996 respondent No.4 was declared elected President for the
year 1997-98. She secured 9 votes as against 8 votes secured
by candidate who was defeated. In terms of Section 3(1) of
the Act, the High Court took the view that councillors or
members belonging to any political party, Aghadi shall be
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disqualified for being a councillor or a member if he
voluntarily gives up his membership of such political party
or Aghadi or front and, therefore, such Aghadi/front is
placed at par with any political party in the same manner as
giving up membership of parties attracts disqualification,
similarly voluntarily giving up membership of an Aghadi or
front would be a disqualification. The High Court also
noticed that under Section 3 (1)(b) of the Act a member of a
political party, Aghadi or front had to cast votes at the
meetings of local authorities as per the directions of the
party. If a member or a councillor fails to comply with the
party directions, he would incur disqualification. In
particular it noticed Clause (a) of the Explanation that a
person elected as a councillor shall be deemed to belong to
the party, Aghadi or front, if any, by which he was set up
as a candidate for election and the High Court concluded on
that basis that each of the appellants 1 to 9 having
contested as independent candidates and on being so elected
they formed themselves into an Aghadi and, therefore they
ceased to be independent councillors. Before electing the
President, formed themselves into an Aghadi and having
chosen their leader and office bearers nominated a candidate
for the presidential elections by issuing a whip calling
upon its members to vote for that person and none else. They
were covered by definition of Section 2(a) of the Act. The
High Court was also of the view that appellants 1 to 9 are a
group of persons who had formed themselves into a party, and
the election of a President is also an election to the local
authority. The High Court considered the argument advanced
on behalf of the appellants that formation of Aghadi is not
a case of joining a political party but one of constituting
a political party or Aghadi and, therefore, could not incur
disqualification. The High Court referred to the meaning of
the expression "join" and took the view that this expression
has a very wide connotation and includes constitution of a
group by various individuals getting together for the
purposes of forming an Aghadi. The appellants have united
themselves to form the Aghadi and, therefore, they could be
said to have joined Aghadi. The High Court drew a comparison
of the provisions of the Act with the Tenth Schedule to the
Constitution and while holding that the view taken by the
Collector was not correct, quashed the said order and
allowed the application declaring that the appellants
incurred a disqualification as provided under Section 3(2)
of the Act and, therefore, ceased to be councillors of the
Municipal Council. Hence this appeal by special leave.
On behalf of the appellants contention put forth is
that the appellants had not joined the Aghadi to set up a
candidate to an election to the local authority; that even
though appellants formed a group loosely called an Aghadi or
Front, it was not really an Aghadi/Front in terms of the Act
in as much as it had not been formed for the purpose of
setting up candidates for election to a local authority,
that it is open to independently elected members to agree to
cooperate for running efficiently the management of a local
authority and for that purpose need not form a party. In
particular they attack the finding of the High Court that
the appellants had nominated respondent No.4 as their
candidate for the election of the President of the council,
their joining the front would entail disqualification as
election of the President in the view of the High Court is
also an election to the local authority; that election to
the local authority would not include an election to the
post of a President of a council. Therefore, it was
submitted that the High Court had misguided itself in not
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appreciating as to what constitutes a defection and the
circumstance in which the nine appellants formed a group
which was not an Aghadi as defined under the Act
particularly when it had not set up candidates for election
to only local authority.
In order to correctly appreciate the contentions put
forth on behalf of the parties it is necessary to refer to
the some of the provisions of the Act. The Act has a
Preamble to the effect that it would provide for
disqualification of members of certain local authorities on
ground of defection and for matters incidental thereto.
Section 2 (a) defines Aghadi or Front as meaning "a group of
persons formed themselves into party for the purpose of
setting up candidates for election to a local authority".
Local authority is also defined in Clause (a) as meaning a
Municipal Corporation; Municipal Council; Zilla Parishad: on
Panchayat Samiti. Clause (1) thereto defines municipal
party, in relation to the councillor belonging to any
political party or aghadi or front meaning the group
consisting of time being belonging to that political party
or Aghadi or Front. Section 3(1) provides for certain
circumstances in which a member belonging to a political
party or Aghadi or Front, if any, by which he was set up as
a candidate for election as such member or councillor. The
circumstances which attract disqualification and are set out
in sub-section (1) of Section 3 have no relevance in the
present case. We are concerned with the situation as arising
in sub-section (2) thereto and which reads as follows:-
"(2) An elected councillor, or as
the case may be, member who has
been elected as such otherwise than
as a candidate set up by political
party or aghadi or front shall be
disqualified for being a
councillor, or as the case may be,
a member if he joins any political
party or aghadi or front after such
election."
We will revert back to the Section a little later. Sub-
sections (3) and (4) are not relevant for the present
purpose. Rules have been framed under the Act and Rule 3
thereof requires information to be furnished by a leader of
the party as to the members who constitute the party. An
affidavit was filed by Dattatraya Maruti Bawalekar, 1st
appellant herein, In the said affidavit filed on January,
1997 (data is not clear), it is stated that the appellant
Nos.1 to 9 contested elections as independent candidates
without affiliation to any political party or Aghadi or
front, as under:
"During the course of the day on
2.12.1996 I myself along with
certain respectable persons
including some of the respondents
and other elected candidates
sharing common concern for welfare
and development of Mahabaleshwar
had discussions and deliberations
with one another. During such
discussions and deliberations
aforesaid, it was proposed to form
a common Aghadi / Front in the
house of respondent No.10 for the
common concern of Mahabaleshwar
town, its welfare and its
developments. All this ultimately
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culminated into the formation of an
Aghadi/Municipal Party / Front
titled as Mahabaleshwar Giristhan
Nagar Parishad Shahar Vikas Aghadi
on late on 2.12.1996 itself.
Respondent Nos. 1 to 9 were also
inclined and decided to take part
in the formation of such aforesaid
Aghadi / Municipal Party / Front
and become members thereof to
function in the house of Respondent
No.10 as members of such Aghadi.
The first meeting of the Aghadi was
held late in the day on 2.12.1996
when the proceedings of the meeting
were recorded. In the said meeting,
it was decided to prepare
constitution and the Rules of the
Aghadi. Secondly, I was elected as
the Leader of the Aghadi while
Respondent No.5 was elected as the
Treasurer of the Aghadi and
Respondent No.1 was elected as the
Secretary of the Aghadi. Thirdly,
the decision also was taken to
register the said Aghadi as per the
provision of the said Act and the
rules made thereunder. I crave
leave to refer and rely upon the
proceedings of the first meeting of
the said Aghadi on 2.12.1996 when
produced. Another informal meeting
of the Aghadi was held on 4.12.1996
wherein respondent Nos.1 to 9 as
also other 19 respectable persons
supporting the said Aghadi took
part in the proceedings. The local
M.L.A. from the area was also
present in the said meeting and it
was agreed that all the members of
the Aghadi will jointly endeavour
together for the complete progress
upliftment and development of
Mahabaleshwar and act accordingly.
A further meeting of the Aghadi was
held on 16.12.1996, I also filled a
form under Rule 3 of the Rules made
under the said Act declaring the
members of the Aghadi to be filed
in the office of respondent No.11.
Similarly respondent Nos. 1 to 9
also filled a form under Rule 4 of
the Rules made under the said Act
declaring their status. On
17.12.1996 I, myself along with
respondent Nos.1 to 7 and 9
affirmed our individual affidavits
declaring that we all have decided
to form a Municipal Party in the
house of respondent No.10 named as
"Mahabaleshwar Giristhan Nagar
Parishad Shahar Vikas Aghadi" and
that I was elected as a leader of
the party by consensus. The
constitution and the rules were
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also prepared and respondent Nos. 1
to 9 endorsed and consented to the
said constitution and the rules on
17.12.1996. Thereafter, on
17.12.1996 I, as the Leader of the
said Aghadi/Municipal Party, made
an application to respondent No.11
under the provisions of the said
Act informing her that we are
forming the said Aghadi as a new
party and the same be registered as
per the provision of the said Act.
The said application was
accompanied by all requisite
documents. The said forms under
rules 3 and 4 were also filed on
the same day. I crave leave to
refer and rely upon the aforesaid
documents when producing. In the
circumstances it is clear that
Aghadi was formed for the first
time after the said elections were
held on 1.12.1996 and the result
thereof were declared on
2.12.1996............."
The translated copy of the Aghadi constitution and
rules had been made available. The membership thereto
indicates as follows:-
"Membership - Elected and nominated
councillor of Mahabaleshwar Hill
Station Municipal Council can
become the member of the front.
Membership fee shall be Rs.500/-
(Rs. Five hundred only)
Proceedings of the front-
The proceedings of the front shall
be carried out under Maharashtra
Municipal Councils, Municipal
Panchayats and Industrial Urban Act
as well as Maharashtra Local
Authority members Disqualification
Act, 1996 and rules, 1987 and the
said Acts and rules shall be
binding on all members.
Procedure of Whip- A notice of whip
issued by the Leader of Party in
respect of any resolution, meeting
and voting shall be given in person
to the members of the front at the
regd. with the front. If the member
is not present, at the time of
service of notice, the notice shall
be pasted at the given address of
the member and the notice which is
pasted in this manner shall be
treated as served upon the member
and the said notice shall be
binding on the members of the
front."
A Joint Committee on the Maharashtra Local Authority
Members Disqualification Bill made a report wherein it is
noticed as follows:-
"The Committee however felt that
elections to local authorities are
not always fought on political or
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party lines but individuals or
groups come together on some common
programme and form a front or
aghadi for the purpose of
contesting election. The committee
therefore thought it necessary to
define aghadi or front so that they
could also be considered as a party
for purpose of this Act. Clause 2
has been amended for this purpose."
S/Shri Harish N. Salve and V.A. Bobde, learned senior
advocate for the contesting respondents pleaded that the
allegations made in the affidavit filed in the High Court
made it clear that the appellants from an Aghadi. The
disqualification of Section 3(2) would attach when elected
councillors join any political party after such elections.
The requists conditions to attract the provision of the Act
are - (i) the councillors had been elected otherwise than as
a candidate set up by a political party, Aghadi or front;
(ii) Such councillor joins any political party, Aghadi or
Front after such elections. The disqualification attaches if
an elected councillor joins any political party after fresh
election. The expression such election has reference to the
process in which he was a candidate of a political party. If
these conditions are satisfied then the elected councillor
would stand disqualified. Section 3(2) deals with
independents since candidates referred to are when a
councillor has been elected otherwise than as candidate of a
political party. The legislation imposes a condition that a
person elected as an independent should continue as such
without subjecting himself to any party affiliation and
permitting independents to form a party after election would
completely negate the policy of the law. The contention on
behalf of the appellants is that such an interpretation
would but the independents at greater disadvantage than the
members of the political party, is misconceived in as much
as splits or mergers would not arise in case of independent
councillors. The spirit of enactment is that a member of a
political party cannot join another or form a political
front without incurring disqualification as provided under
Section 3 unless he is expelled from his party. By the same
taken Section 3(2) mandates that a person elected as an
independent retains his status as such.
Section 3(2) to which we have adverted to earlier with
reference to a councillor or a member who has been elected
otherwise than as a candidate set up by a political party or
Aghadi or front such a candidate or such councillor or
member shall be disqualified for being a councillor if he
joins any political party or Aghadi or front after such
election. The Section specifically provides that an
independent candidate not set up by a political party or
front incurs disqualification on his joining any political
party after such election. This Court in Kihato Hollahan v.
Zachillhu, 1992 Supp. (2) SCC 651 (680), while dealing with
the effect of provisions of the Tenth Schedule to the
Constitution noticed that the same yardstick has to be
applied to a person who is elected as an independent
candidate and wishes to join a political party after the
election as is done with reference to a person who has been
elected on a political plank. Therefore, no distinction
could be made between a person belonging to a political
party and a person who is elected as an independent and such
distinction has not been made by the Act in question. On the
other hand, it is made clear a councillor or a member has
been elected not set up by a political party or front joins
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such political party subsequently would incur
disqualification.
If what we have stated is the correct legal position
then the counter affidavit filed by Bawalekar who is leader
of the Aghadi in question which we have extracted
extensively earlier will indicate that the appellants were
forming Aghadi as a new party and the same has to be
registered under the provisions of the Act. When they form a
new party the position is clear that a person elected as an
independent would cease to be an independent and becomes a
member of a political party or a front. His status as an
independent will come to an end on becoming a member of a
front or a group, he loses such status and is subject to the
whio of the party to which we have referred to earlier. If
elected councillors could become members of such Aghadi it
is made clear that Aghadi would be bound by the provisions
of the Act in question and is also authorised to issue a
whio. These facts would make it clear that the appellants
who could act independently prior to the election or
immediately on the election became subject to discipline of
the party or front on becoming members thereof. Such party
whether would amount to formation of party or became members
of such party is immaterial. We do not wish to be guided by
or controlled by any etymological terminology but the
substance of the matter. Therefore, in our view the High
Court was justified in holding that the appellants have
incurred disqualification.
In the result, the appeal stands dismissed. No costs.