Reportable

THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs.10452-10457 OF 2010

(Arising out of S.L.P. (Civil) Nos. 7477-7482 OF 2010

Kedar Shashikant Deshpande etc. etc. ... Appellants

Versus

Bhor Municipal Council & Ors. etc. etc.... Respondent

J U D G M E N T

J.M. Panchal, J.

Leave granted in each petition.

2.These appeals are directed against common

judgment dated February 4, 2010 rendered by the

Division Bench of High Court of Judicature at Bombay in

Writ Petition Nos. 964 of 2006 to 968 of 2006 and Writ

Petition No. 971 of 2010 by which the order dated

January 21, 2010 passed by the Additional Collector,

Pune holding that the petitioner in each case is

disqualified to be a Member of Bhor Municipal Council,

Taluka Bhor, District Pune, is upheld.

3.The facts emerging from the record of the case are

as under: -

The general elections for the Bhor 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 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 (C)

No.7479/2010.

2)Manisha Rajkumar Kale

3)Rajshree Anil Sagle – Petitioner in SLP (C) No.

7481/2010

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4)Vijaya Ananta Ulhalakar – Petitioner in SLP (C)

No.7478/2010

5)Kedar Shashikant Deshpande – Petitioner in

SLP (C) No.7477/2010

6)Jayshree Rajkumar Shinde – Petitioner in SLP

(C) No.7480/2010

7)Ganesh Anant Pawar

8)Dattatraya Ramchandra Palakar – Petitioner in

SLP (C) No.7482/2010.

B)Congress (I) – 8 Councillors

1)Kailas Shankar Dhawale

2)Suvarna Mohan Shinde

3)Sachin Ashok Harnaskar

4)Truptee Jagadeesh Kirve

5)Tanaji Sadu Taru

6)Gajanan Kisan Danawale

7)Sanjay Dattartraya Jagtap

8)Shankar Baban Pawar

C)Independent – 1 Councillor

1)Vittal @ Lahu Ramchandra Shinde

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The said independent candidate joined NCP

immediately on June 27, 2008.

4.Mr. Yashawant Baburao Dal was appointed as

Pratod/Gatneta of NCP on June 27, 2008. The

Pratod/Gatneta of 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 also submitted the information in Form III 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 President of the Bhor

Municipal Council. On December 21, 2009, Mr.

Yashawant Dal resigned from the post of Pratod/Gatneta

of NCP. The same was accepted and Mr. Ganesh Pawar

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was appointed as Pratod. On December 22, 2009,

following 6 NCP councillors left NCP and formed Bhor

Shahar Vikas Swabhimani Sanghathana (“the

Sanghathana” for short) :-

1)Yashawant Baburao Dal

2)Rajshree Anil Sagle

3)Vijaya Ananta Ulhalakar

4)Kedar Shashikant Deshpande

5)Jayshree Rajkumar Shinde

6)Dattatraya Ramchandra Palakar

It may be mentioned that Mrs. Jayshree Rajkumar

Shinde was appointed as a Party Pratod of the said

Sanghathana. On December 23, 2009 the

Pratod/Gatneta of Sanghathana, Mrs. Jayshree Shinde

gave a letter to the District Collector informing the

Collector that the Sanghathana was formed. The

Pratod/Gatneta also submitted Form I as per Rule 3(1)(a)

of the Rules. Each of the 6 councillors also submitted

Form III as per Rule 4(1) of the Rules. An affidavit sworn

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by Mr. Yashawant Dal before Notary on December 21,

2009 was also submitted to 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 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 Pratod, Mr. Ganesh Pawar of NCP, i.e.,

the respondent No. 4 herein and the 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 Local Authority Members Disqualification

Act, 1986 (‘The Act’, for Short). The contents of the

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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

listed for the first time on January 4, 2010 when 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. Ganesh Pawar and Mr. Suresh

Ghule were absent and therefore the matter was

adjourned to January 12, 2010. 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, Pune granted the permission as

prayed for. The appellants claim that before granting the

permission to the respondents to verify the documents

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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 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 January

22, 2010. The appellants filed an application on January

12, 2010 raising preliminary objection 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 Petition on January 19, 2010. The

Additional Collector Pune passed final order dated

January 21, 2010 in Disqualification Petition No.25 of

2009 and disqualified the appellants, retrospectively with

effect from January 23, 2010 as councillors of the

Sanghathana.

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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.

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.

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 before the Collector was not verified in

accordance with Rule 6(4) and 6(3) of the Rules and,

therefore, the same should have been dismissed in limine.

According to the learned counsel for the appellants the

Additional Collector had permitted the respondent Nos.4

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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 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 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:-

“(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.”

Whereas Rule 6(3) of the Rules is as follows: -

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“(3)Every Petition –

(a)shall contain a concise statement of the

material facts on which the petitioner

relies; and

(b)shall be accompanied by copies of the

documentary evidence, if any, on which

the petitioner relies and where the

petitioner relies on any information

furnished to him by any person, a

statement containing the names and

address of such person and the gist of

such information as furnished by 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 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 relies on any information

furnished to him by any person, the statement

containing names and addresses of such person and

existence of such information as furnished by such

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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 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 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

held that defect in verification of the Election Petition or

in the affidavit accompanying Election Petition is curable

and not fatal.

9.In Murarka Radhey Shyam Ram Kumar vs. Roop

Singh Rathore (1964) 3 SCR 573, a Constitution Bench of

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this Court has held in unmistakable terms that a defect

in the 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 petition. Another Constitution bench

of this Court, has held in Ch. Subbarao vs. Member,

Election Tribunal, Hyderabad (1964) 6 SCR 213, 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 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 SCC 221.

10.In F.A. Sapa vs. Singora (1991) 3 SCC 375, this

Court held that a defect in the verification of the petition

13

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 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.

11.In the case of Dr. Mahachandra Prasad Singh vs.

Chairman, 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

disqualification of a Member of Legislative Council

belonging to the Indian National Congress under the

Bihar Legislative Council Members (Disqualification on

Ground of Defection) Rules, 1994, this Court has

considered the question whether infraction of those Rules

would render the entire proceedings initiated by the

Chairman invalid or without jurisdiction. After

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examining the scheme of the Rules, this Court has held

that the Rules being in the domain of the procedure are

intended to facilitate the holding of inquiry and not to

frustrate or obstruct the same by introduction of

innumerable technicalities. It is, further, held by this

Court that being subordinate legislation, the rules cannot

make any provision which may have the effect of

curtailing the content and scope of substantive

provisions of the 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

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, therefore, the principles

15

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 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 Schedule of the Constitution read with Articles

102(2) and 191(2) operate on their own and the only

purpose of the 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

disqualification on a reference made to him. The

reference will have to be regarded as one of the modes of

16

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 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. It may be filed for a 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 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

17

which is not controverted by the appellants. The claim of

the appellants that before granting 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 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 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. Section 99 of the

CPC or in any view of the matter, the principle analogous

thereto protects the validity of the proceedings from such

irregularities. The said Section inter-alia provides that

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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 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 remove

such lacuna.

13.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

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-compliance with Rule 6(4) and 6(3) of the Rules

19

at the initial stage by the respondents did not vitiate the

disqualification petition nor affected the jurisdiction of

the Additional Collector to decide the same and,

therefore, the first contention raised on behalf of the

appellants is rejected.

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 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. Jambulingam (1975) 3 SCC 254, this Court, did not

allow the plea of lack of jurisdiction to be taken for the

first time in an appeal, after the appellant having

submitted to the jurisdiction of the Authority in earlier

20

proceedings. The question whether Additional 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 that

Section 13(3) of the Maharashtra Land Revenue Code,

1966 contemplates statutory delegation in favour of the

Additional Collector. 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 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. Therefore, having lost before the

Additional Collector, they cannot turn round and

challenge the jurisdiction of the Additional Collector for

21

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

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 Land Revenue 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.PWR4983/75289(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:-

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“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, as the case

may be, the Tehsildar under the provisions of

this Code or under 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: -

“No.PWR.4983/75289 (103)-L-2: -

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 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.

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

23

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 Members’

Disqualification Act, 1986 is a law for the time being in

force. Therefore, in this case the Additional 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.

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 decide the same. In Rajendra

Singh Rana & Ors. vs. Swami Prasad Maurya & ors.

(2007) 4 SCC 270, where the issue of disqualification of

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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 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 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, disqualification

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.

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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 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 that Additional

Collector, Pune had no jurisdiction to decide

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 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

26

merger has not been specifically taken anywhere in the

pleadings by the appellants, though, in the pleadings

there is 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 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

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. 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.

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18.Even otherwise also, the plea of appellants that

their front had merged with Congress (I) has no factual

basis. There is nothing on the 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 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 this case the 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 formed a separate group known as Bhor Shahar

28

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 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 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 the appeals filed by

disqualified appellants. On consideration of rival

submissions, this Court 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

29

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 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 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 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 Pratod/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

30

the six appellants had submitted the information in Form

III as per Rule 4(1) of the Rules mentioning that each of

them was elected as councillor and was affiliated to

political party namely NCP. It is the specific case of the

appellants that after election of President and Vice

President of Bhor Municipal Council on July 19, 2008,

the appellants had left NCP and formed Bhor Shahar

Vikas Swabhimani Sanghathana on December 22, 2009.

It is also their case that Mrs. Jayshree Rajkumar Shinde

who has filed SLP arising out of Writ Petition No.966/10

was appointed Pratod of the Sanghathana. On December

23, 2009 she had given a letter to the 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

submitted Form III 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 councillor or a member belonging

31

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 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 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 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,

32

therefore, they are not entitled to any of the reliefs in the

present appeals.

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 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 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 further

33

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 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 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 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

34

this point was not argued before the Additional Collector

or High Court and, therefore, should not be permitted to

be urged for the first time in appeals filed by the

appellants nor to be considered by this Court.

20.On consideration of the rival submissions advanced

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 question of fact. Here also the Court will have to

consider the legal effect of admitted and proved facts.

The record of the case indicates 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 Bhor Municipal Council,

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

35

2010, was appointed as Pratod/Gatneta of NCP. The

record would further show that on December 21, 2009

Mr. Yashawant Baburao Dal had resigned 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 Pratod. Thereafter, the six appellants who had left

NCP had formed the Sanghathana and Mrs. Jayshree

Rajkumar Shinde was appointed as Pratod 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

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

36

Pawar who was Pratod of NCP, 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 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 Pratod of NCP had

sensed that a move was afoot 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 from joining the move for removal

of 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

37

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 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 contents of letter dated December 29, 2009

addressed by Mrs. Jayshree Rajkumar Shinde who was

Pratod 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 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 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

38

prior permission of such political party or

aghadi or front, person or authority and such

voting or abstention has not been condoned by

such political party or aghadi or front, person

or authority within fifteen days from the date

of such voting or abstention :

Provided that such voting or abstention

without prior permission from such party or

aghadi or front, at election of any office,

authority or committee under any relevant

municipal law or the Maharashtra Zilla

Parishads and Panchayat Samitis Act, 1961

shall not be condoned under this clause;

Explanation – For the purposes of this

section –

(a)a person elected as a councillor, or as the

case may be, a member shall be deemed

to belong to the political party or aghadi

or front, if any, by which he was set up as

candidate for election as such councillor

or member;

(b)a nominated councillor shall

(i)where he is a member of any

political party 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 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

39

expiry of six months from the date

on which he is nominated;

(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.”

An analysis of the above 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 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 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

40

member. The fact that each of the six appellants was set

up as a candidate for election as councillor of Bhor

Municipal Council by NCP is 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 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 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

41

information furnished under Rule (3) 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 was not raised by the appellants before the High

Court and, therefore, should not be permitted to be

raised in the instant appeals and alternatively it was

argued that the Rules in question do not lay down that a

political affiliation of the councillor comes into being only

upon submission of Form-I, Form-III and/or publication

of information n the Official Gazette. What was

maintained by the learned Counsel for the respondent

Nos. 4 and 5 was that the submission of Form-I, Form-III

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-III and/or

publication of information in the Official Gazette does not

42

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-III and/or publication in the

Official Gazette merely have an evidentiary value and that

apart there can be other evidence indicating the 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 the same can be through sources

other than the aforesaid Form-I, Form-III 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 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

43

statement of particulars and declaration in Form-III,

which inter-alia, contains the information relating to the

political party to which the councillor belongs. As 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 of the

councillor would come into existence only upon

submission of either Form-I, Form-III 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 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-

III and/or publication in the Official Gazette would not

44

mean that the appellants did not belong to NCP. Form-I,

Form-III 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 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 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 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

45

& 5 was that the appellants had incurred disqualification

under Section 3(1)(a) when they 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 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. 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 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 members in relation to Bhor

Municipal Council. Thus reference made by the Collector

46

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. On the facts and in the

circumstances of the case this Court is of the firm view

that the 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 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 the 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 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

47

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

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 Competent Authority under the Act was required

to decide the said question, but this Court also has to

determine the question 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 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

48

countenanced.

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 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, 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 in resorting to

co-option of two councillors on June 8, 2010 and

constitution of 5 new committees on July 22, 2010.

49

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 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.

32.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

maintainable. As noticed earlier the case of the

respondent Nos. 4 & 5 was that by voluntarily giving up

membership of NCP the appellants had incurred

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

50

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-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. 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 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.

51

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

dismissed. There is no order as to costs.

………………………………J.

(J.M. PANCHAL)

……………………………….J.

NEW DELHI (GYAN SUDHA MISRA)

DECEMBER 10, 2010.

52