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PETITIONER: SHRI DATTATRAYA MARUTI BAWALEKAR, & OTHERS

       Vs.

RESPONDENT: PANDURANG DAGADU PARTE AND ORS.

DATE OF JUDGMENT:       29/04/1998

BENCH: S.C. AGRAWAL, S. RAJENDRA BABU

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Rajendra Babu, J.      The appellants  in this  batch of cases were elected as members of  the Mahabaleshwar Devanstan Municipal Council in the elections held on 1st December, 1996. There are 17 wards in the  council and 17 councillors were elected. At the time of election  the councillors  so elected  did not  associate with any  political party  or Aghadi  or Front.  They having contested as  independent candidates on 2nd December, 1996 a meeting of  these  councillors  was  held  and  they  formed themselves into  an Aghadi Front with the name Mahabaleshwar Giristhan Nagar  Parishad Shahar Vikas Aghadi. On 17.12.1996 the appellants  informed respondent  No. 3  that  they  have formed a  Front as aforesaid. On 18.12.1996 the names of the appellants  were  published  in  the  official  gazette.  On 23.12.1996 elections were proposed to be held to the post of President as  per a  notification issued on 23.12.1996 to be held on  31.12.1996. An  application was filed by respondent No.1 who  is an  elected councillor on 26.12.1996 intimating about the  formation of  the Front  by  the  appellants  and requesting the  respondent No.3 to disqualify the appellants on the  ground of  defection as set forth in Section 3(2) of the Maharashtra  Local Authority  Members’  Disqualification Act,  1986   (hereinafter  referred  to  as  "the  Act"  for brevity). An order was made by respondent No.3 on 28.12.1996 rejecting  the   said  application.   A  writ  petition  was preferred before  the High Court challenging the decision of respondent  No.3  in  rejecting  the  application  filed  by respondent No.1.      On 23rd  December, 1996,  the Collector issued a notice conventing a  meeting to  be held on 31st December, 1996 for electing the  President of  the council for which the Aghadi had sponsored appellant No.4 as its candidate and respondent No.1 had  issued a  whip to  all its councillors to vote for the Aghadi  candidate. In the meeting held on 31st December, 1996 respondent  No.4 was declared elected President for the year 1997-98. She secured 9 votes as against 8 votes secured by candidate  who was  defeated. In terms of Section 3(1) of the Act,  the High  Court took  the view that councillors or members belonging  to any  political party,  Aghadi shall be

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disqualified for  being a  councillor  or  a  member  if  he voluntarily gives  up his membership of such political party or Aghadi  or front  and, therefore,  such  Aghadi/front  is placed at par with any political party in the same manner as giving up  membership of  parties attracts disqualification, similarly voluntarily  giving up  membership of an Aghadi or front would  be a  disqualification.  The  High  Court  also noticed that under Section 3 (1)(b) of the Act a member of a political party,  Aghadi or  front had  to cast votes at the meetings of  local authorities  as per the directions of the party. If  a member or a councillor fails to comply with the party  directions,   he  would  incur  disqualification.  In particular it  noticed Clause  (a) of the Explanation that a person elected  as a councillor shall be deemed to belong to the party,  Aghadi or  front, if any, by which he was set up as a  candidate for election and the High Court concluded on that basis  that each  of  the  appellants  1  to  9  having contested as  independent candidates and on being so elected they formed  themselves into  an Aghadi  and, therefore they ceased to  be independent  councillors. Before  electing the President, formed  themselves  into  an  Aghadi  and  having chosen their leader and office bearers nominated a candidate for the  presidential elections  by issuing  a whip  calling upon its members to vote for that person and none else. They were covered  by definition  of Section 2(a) of the Act. The High Court was also of the view that appellants 1 to 9 are a group of persons who had formed themselves into a party, and the election of a President is also an election to the local authority. The  High Court  considered the argument advanced on behalf  of the appellants that formation of Aghadi is not a case  of joining a political party but one of constituting a political  party or Aghadi and, therefore, could not incur disqualification. The  High Court referred to the meaning of the expression "join" and took the view that this expression has a  very wide  connotation and includes constitution of a group  by  various  individuals  getting  together  for  the purposes of  forming an  Aghadi. The  appellants have united themselves to  form the Aghadi and, therefore, they could be said to have joined Aghadi. The High Court drew a comparison of the  provisions of the Act with the Tenth Schedule to the Constitution and  while holding  that the  view taken by the Collector was  not  correct,  quashed  the  said  order  and allowed  the   application  declaring  that  the  appellants incurred a  disqualification as  provided under Section 3(2) of the  Act and, therefore,  ceased to be councillors of the Municipal Council. Hence this appeal by special leave.      On behalf  of the  appellants contention  put forth  is that the  appellants had  not joined  the Aghadi to set up a candidate to  an election  to the local authority; that even though appellants formed a group loosely called an Aghadi or Front, it was not really an Aghadi/Front in terms of the Act in as  much as  it had  not been  formed for  the purpose of setting up  candidates for  election to  a local  authority, that it is open to independently elected members to agree to cooperate for  running efficiently the management of a local authority and  for that  purpose need  not form  a party. In particular they  attack the  finding of  the High Court that the  appellants  had  nominated  respondent  No.4  as  their candidate for  the election of the President of the council, their joining  the front  would entail  disqualification  as election of  the President  in the view of the High Court is also an  election to  the local  authority; that election to the local  authority would  not include  an election  to the post  of  a  President  of  a  council.  Therefore,  it  was submitted that  the High  Court had  misguided itself in not

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appreciating as  to what  constitutes a  defection  and  the circumstance in  which the  nine appellants  formed a  group which  was   not  an   Aghadi  as   defined  under  the  Act particularly when  it had not set up candidates for election to only local authority.      In order  to correctly  appreciate the  contentions put forth on  behalf of  the parties it is necessary to refer to the some  of the  provisions of  the  Act.  The  Act  has  a Preamble  to   the  effect   that  it   would  provide   for disqualification of members of certain  local authorities on ground of  defection and  for  matters  incidental  thereto. Section 2 (a) defines Aghadi or Front as meaning "a group of persons formed  themselves into  party for  the  purpose  of setting up  candidates for  election to  a local authority". Local authority  is also  defined in Clause (a) as meaning a Municipal Corporation; Municipal Council; Zilla Parishad: on Panchayat  Samiti.  Clause  (1)  thereto  defines  municipal party, in  relation  to  the  councillor  belonging  to  any political  party  or  aghadi  or  front  meaning  the  group consisting of  time being  belonging to that political party or Aghadi  or  Front.  Section  3(1)  provides  for  certain circumstances in  which a  member belonging  to a  political party or  Aghadi or Front, if any, by which he was set up as a candidate  for election  as such member or councillor. The circumstances which attract disqualification and are set out in sub-section  (1) of  Section 3  have no  relevance in the present case. We are concerned with the situation as arising in sub-section (2) thereto and which reads as follows:-      "(2) An  elected councillor,  or as      the case  may be,  member  who  has      been elected as such otherwise than      as a  candidate set up by political      party or  aghadi or  front shall be      disqualified    for     being     a      councillor, or  as the case may be,      a member  if he joins any political      party or aghadi or front after such      election."      We will revert back to the Section a little later. Sub- sections (3)  and (4)  are  not  relevant  for  the  present purpose. Rules  have been  framed under  the Act  and Rule 3 thereof requires  information to be furnished by a leader of the party  as to  the members  who constitute  the party. An affidavit was  filed by  Dattatraya  Maruti  Bawalekar,  1st appellant herein,  In the  said affidavit  filed on January, 1997 (data  is not  clear), it  is stated that the appellant Nos.1 to  9 contested  elections as  independent  candidates without affiliation  to any  political party  or  Aghadi  or front, as under:      "During the  course of  the day  on      2.12.1996  I   myself  along   with      certain     respectable     persons      including some  of the  respondents      and   other    elected   candidates      sharing common  concern for welfare      and  development  of  Mahabaleshwar      had discussions  and  deliberations      with  one   another.  During   such      discussions    and    deliberations      aforesaid, it  was proposed to form      a common  Aghadi  /  Front  in  the      house of  respondent No.10  for the      common  concern   of  Mahabaleshwar      town,   its    welfare   and    its      developments. All  this  ultimately

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    culminated into the formation of an      Aghadi/Municipal  Party   /   Front      titled as  Mahabaleshwar  Giristhan      Nagar Parishad  Shahar Vikas Aghadi      on  late   on   2.12.1996   itself.      Respondent Nos.  1 to  9 were  also      inclined and  decided to  take part      in the  formation of such aforesaid      Aghadi /  Municipal Party  /  Front      and  become   members  thereof   to      function in the house of Respondent      No.10 as  members of  such  Aghadi.      The first meeting of the Aghadi was      held late  in the  day on 2.12.1996      when the proceedings of the meeting      were recorded. In the said meeting,      it   was    decided   to    prepare      constitution and  the Rules  of the      Aghadi. Secondly,  I was elected as      the  Leader  of  the  Aghadi  while      Respondent No.5  was elected as the      Treasurer   of   the   Aghadi   and      Respondent No.1  was elected as the      Secretary of  the Aghadi.  Thirdly,      the  decision  also  was  taken  to      register the said Aghadi as per the      provision of  the said  Act and the      rules  made   thereunder.  I  crave      leave to  refer and  rely upon  the      proceedings of the first meeting of      the said  Aghadi on  2.12.1996 when      produced. Another  informal meeting      of the Aghadi was held on 4.12.1996      wherein respondent  Nos.1 to  9  as      also other  19 respectable  persons      supporting  the  said  Aghadi  took      part in  the proceedings. The local      M.L.A.  from   the  area  was  also      present in  the said meeting and it      was agreed  that all the members of      the Aghadi  will jointly  endeavour      together for  the complete progress      upliftment   and   development   of      Mahabaleshwar and  act accordingly.      A further meeting of the Aghadi was      held on 16.12.1996, I also filled a      form under Rule 3 of the Rules made      under the  said Act  declaring  the      members of  the Aghadi  to be filed      in the  office of respondent No.11.      Similarly respondent  Nos. 1  to  9      also filled  a form under Rule 4 of      the Rules  made under  the said Act      declaring    their    status.    On      17.12.1996  I,  myself  along  with      respondent  Nos.1   to  7   and   9      affirmed our  individual affidavits      declaring that  we all have decided      to form  a Municipal  Party in  the      house of  respondent No.10 named as      "Mahabaleshwar   Giristhan    Nagar      Parishad Shahar  Vikas Aghadi"  and      that I  was elected  as a leader of      the   party   by   consensus.   The      constitution  and  the  rules  were

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    also prepared and respondent Nos. 1      to 9  endorsed and consented to the      said constitution  and the rules on      17.12.1996.     Thereafter,      on      17.12.1996 I,  as the Leader of the      said Aghadi/Municipal  Party,  made      an application  to respondent No.11      under the  provisions of  the  said      Act  informing   her  that  we  are      forming the  said Aghadi  as a  new      party and the same be registered as      per the  provision of the said Act.      The    said     application     was      accompanied   by    all   requisite      documents.  The  said  forms  under      rules 3  and 4  were also  filed on      the same  day.  I  crave  leave  to      refer and  rely upon  the aforesaid      documents when  producing.  In  the      circumstances  it   is  clear  that      Aghadi was  formed  for  the  first      time after  the said elections were      held on  1.12.1996 and  the  result      thereof    were     declared     on      2.12.1996............."      The translated  copy of  the  Aghadi  constitution  and rules  had  been  made  available.  The  membership  thereto indicates as follows:-      "Membership - Elected and nominated      councillor  of  Mahabaleshwar  Hill      Station   Municipal   Council   can      become the  member  of  the  front.      Membership fee  shall  be  Rs.500/-      (Rs. Five hundred only)      Proceedings of the front-      The proceedings  of the front shall      be carried  out  under  Maharashtra      Municipal    Councils,    Municipal      Panchayats and Industrial Urban Act      as  well   as   Maharashtra   Local      Authority members  Disqualification      Act, 1996  and rules,  1987 and the      said  Acts   and  rules   shall  be      binding on all members.      Procedure of Whip- A notice of whip      issued by  the Leader  of Party  in      respect of  any resolution, meeting      and voting shall be given in person      to the  members of the front at the      regd. with the front. If the member      is not  present,  at  the  time  of      service of notice, the notice shall      be pasted  at the  given address of      the member  and the notice which is      pasted  in  this  manner  shall  be      treated as  served upon  the member      and  the   said  notice   shall  be      binding  on   the  members  of  the      front."      A Joint  Committee on  the Maharashtra  Local Authority Members Disqualification  Bill made  a report  wherein it is noticed as follows:-      "The Committee  however  felt  that      elections to  local authorities are      not always  fought on  political or

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    party  lines   but  individuals  or      groups come together on some common      programme  and   form  a  front  or      aghadi   for    the   purpose    of      contesting election.  The committee      therefore thought  it necessary  to      define aghadi or front so that they      could also be considered as a party      for purpose  of this  Act. Clause 2      has been amended for this purpose."      S/Shri Harish  N. Salve  and V.A. Bobde, learned senior advocate for  the contesting  respondents pleaded  that  the allegations made  in the  affidavit filed  in the High Court made it  clear that  the  appellants  from  an  Aghadi.  The disqualification of  Section 3(2)  would attach when elected councillors join  any political  party after such elections. The requists  conditions to attract the provision of the Act are - (i) the councillors had been elected otherwise than as a candidate  set up  by a  political party, Aghadi or front; (ii) Such  councillor joins  any political  party, Aghadi or Front after such elections. The disqualification attaches if an elected  councillor joins any political party after fresh election. The  expression such election has reference to the process in which he was a candidate of a political party. If these conditions  are satisfied  then the elected councillor would  stand   disqualified.   Section   3(2)   deals   with independents  since   candidates  referred  to  are  when  a councillor has been elected otherwise than as candidate of a political party.  The legislation imposes a condition that a person elected  as an  independent should  continue as  such without subjecting  himself to  any  party  affiliation  and permitting independents to form a party after election would completely negate  the policy  of the law. The contention on behalf of  the appellants   is  that such  an interpretation would but  the independents at greater disadvantage than the members of  the political  party, is misconceived in as much as splits  or mergers would not arise in case of independent councillors. The  spirit of  enactment is that a member of a political party  cannot   join another  or form  a political front without  incurring disqualification  as provided under Section 3  unless he is expelled from his party. By the same taken Section  3(2) mandates  that a  person elected  as  an independent retains his status as such.      Section 3(2)  to which we have adverted to earlier with reference to  a councillor  or a member who has been elected otherwise than as a candidate set up by a political party or Aghadi or  front such  a candidate  or  such  councillor  or member shall  be disqualified  for being  a councillor if he joins any  political party  or Aghadi  or front  after  such election.  The   Section  specifically   provides  that   an independent candidate  not set  up by  a political  party or front incurs  disqualification on  his joining any political party after  such election. This Court in Kihato Hollahan v. Zachillhu, 1992  Supp. (2) SCC 651 (680), while dealing with the effect  of provisions  of  the  Tenth  Schedule  to  the Constitution noticed  that the  same  yardstick  has  to  be applied to  a  person  who  is  elected  as  an  independent candidate and  wishes to  join a  political party  after the election as  is done with reference to a person who has been elected on  a political  plank.  Therefore,  no  distinction could be  made between  a person  belonging to  a  political party and a person who is elected as an independent and such distinction has not been made by the Act in question. On the other hand,  it is  made clear  a councillor or a member has been elected  not set up by a political party or front joins

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such    political    party    subsequently    would    incur disqualification.      If what  we have  stated is  the correct legal position then the  counter affidavit filed by Bawalekar who is leader of  the   Aghadi  in   question  which   we  have  extracted extensively earlier  will indicate  that the appellants were forming Aghadi  as a  new party  and  the  same  has  to  be registered under the provisions of the Act. When they form a new party  the position is clear that a person elected as an independent would  cease to  be an independent and becomes a member of  a political  party or  a front.  His status as an independent will  come to  an end  on becoming a member of a front or a group, he loses such status and is subject to the whio of  the party  to which we have referred to earlier. If elected councillors  could become  members of such Aghadi it is made  clear that  Aghadi would be bound by the provisions of the  Act in  question and  is also  authorised to issue a whio. These  facts would  make it  clear that the appellants who  could  act  independently  prior  to  the  election  or immediately on  the election became subject to discipline of the party  or front  on becoming members thereof. Such party whether would amount to formation of party or became members of such  party is immaterial. We do not wish to be guided by or  controlled  by  any  etymological  terminology  but  the substance of  the matter.  Therefore, in  our view  the High Court was  justified in  holding that  the  appellants  have incurred disqualification.      In the result, the appeal stands dismissed. No costs.