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

2

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

3

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  

4

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  

5

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  

6

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  

7

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.   

8

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  

9

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: -

10

“(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  

11

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  

12

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  

14

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  

18

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:-

22

“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  

24

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.   

25

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.   

27

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