DEEPAK SHYAMKISHOR NASHINE v. STATE OF MAHARASHTRA & Ors.

Shri Parsodkar, the learned counsel for the petitioners, submitted that it is necessary to transfer the matter from the file of the respondent no.2 to some other Collector as the respondent no.2 is conducting the proceedings under the pressure of the local M.L.A. and M.P. It is the case of the petitioners that the respondent no.2 has not followed the mandatory procedure, no articles of Charge are framed, no Whip is produced and Rule 6 of the Maharashtra Local Authority Members' Disqualification Rules, 1987 has not been followed. The counsel for the petitioners submitted that since the procedure prescribed by Rules 6 and 7 of the Rules of 1987 is not followed, it is clear that the Collector- respondent no.2 is supporting the respondent no.3 and, therefore, the matter needs to be transferred from the respondent no.2 to any other Collector. It is submitted that though disqualification petitions were also filed against the respondent no.3, the respondent no.2 has dismissed those disqualification petitions without notice and this clearly shows that the respondent no.2 is biased. It is then submitted on behalf of the petitioner that a preliminary enquiry, as required under the provisions of Rule 7 of the Rules of 1987, is not conducted in this case and no report is in existence. It is submitted that an opportunity to the petitioners is not granted after the preliminary enquiry is held and the charge framed against the petitioners is not specific. It is submitted by relying on the judgment reported in 2009(12) SCC 78 (Union of India & others Versus Gyan Chand Chattar) that framing of a vague charge vitiates an enquiry. It is then submitted that the allegation against the petitioners is that they have voluntarily given up their Party 4 WPS4358&4360-12 and this cannot be the reason for disqualification as held by this Court in the judgment reported in 1992 Mh.L.J. 552 (Punjab Natthuji Rakesh & others Versus State of Maharashtra & others). It is canvassed on behalf of the petitioners by relying on the judgment reported in 2005(4) Mh.L.J. 211 (Sumitradevi Mahipal Kureel Versus State of Maharashtra & others) that the rigours of Rule 7 of the Rules of 1987 have to be followed or else the petition for disqualification is liable to be dismissed. Shri Sambre, the learned Government Pleader appearing on behalf of the respondent nos.1 and 2, supported the order dated 07.09.2012 and submitted that though the disqualification petitions were filed in the month of April- 2012, the petitioners have resorted to various tactics for delaying the matter. It is submitted that the witnesses of the respondent no.3 have tendered the evidence in examination- in-chief and the petitioners have cross-examined the said witnesses. It is submitted that the petitioners should have no grievance about the order dated 07.09.2012 as, by the said order, the petitioners were granted permission to file additional written statement and also granted liberty to apply for copies of whichever documents required, though they have been supplied with all the necessary documents, earlier. The learned Government Pleader submitted that vague and baseless allegations of bias have been levelled against the respondent no.2. It is submitted that though it is the case of the petitioners that the respondent no.2 is acting under the pressure of local M.L.A. and M.P., those persons have not been joined as parties. Moreover, a bald statement is made about the pressure exerted by the local M.L.A. and M.P. and the 5 WPS4358&4360-12 allegations are not substantiated. It is submitted by taking this Court through the affidavit-in-reply filed by the respondent no.2 that a preliminary enquiry is conducted in the matter and then the charges were framed. It is submitted that all the relevant documents were supplied to the petitioners along with the notice. It is also pointed out that on the same day, on which the petitioners applied for cross- examination of the respondent no.3, the petitioners filed the application for dismissal of the petition and for a direction to produce the documents. It is submitted that the petitioners, with a view to delay the proceedings, have filed a list of 45 witnesses without showing their relevance. It is submitted that when the proceedings are at the concluding stage, the petition has been filed so as to stall the proceedings before the Collector. Shri Gilda, the learned counsel for the respondent no.3, also supported the impugned order and submitted that the petition is filed not only with a view to protract the proceedings pending before the Collector but, the averments made in the petition are also misleading. It is submitted that though the disqualification petition is not for the disqualification of the petitioners under Section 3(1)(b), the petitioners have harped on the fact that no whip was produced. The learned counsel for the respondent no.3 relied on the decision reported in 1998(3) Mh.L.J. 391 (Seethalakshmi Ammal Versus Muthuvenkatarama Iyengar & another) to point out that the High Court had declined to interfere with the orders passed by the authorities when the petitioner had tried to mislead the Court. It is submitted that all the documents were filed by the respondent no.3 along 6 WPS4358&4360-12 with the petition. It is lastly submitted that though the petitioners had filed affidavits stating therein that they had voluntarily given up the Party (Indian National Congress), the petitioners have not disclosed the fact about tendering of such affidavits in the petition. The learned counsel sought for the dismissal of the writ petition. On hearing the learned counsel for the parties and on a perusal of the impugned order, it appears that no ground whatsoever has been made out by the petitioners for transferring the matter from the respondent no.2 to some other Collector. Bald and vague allegations are made about the pressure exerted on the respondent no.2 by local M.L.A. and M.P. The allegations are not substantiated at all. The matter on the file of an authority cannot be transferred to some other authority on the basis of bald and fanciful allegations made by one of the parties to the case pending before the authority. If it is the case of the petitioners that the mandatory procedure was not followed by the respondent no.2, the petitioners have other remedies open but, that cannot be a ground for transfer of the case to some other Collector. Also, it cannot be said that the petitions need to be transferred from the respondent no.2 to some other Collector because the respondent no.2 had dismissed the disqualification petitions filed against the respondent no.3. Two cases cannot be always equated. If at all there was some irregularity or illegality in dismissing the petitions against the respondent no.3, the petitioners were free to exhaust the other remedies. However, this cannot be the ground for transferring the matter from the respondent no.2 to some other Collector. 7 WPS4358&4360-12 Now coming to the impugned order dated

07.09.2012, it is surprising that the petitioners have challenged the same. In my view, the order does not cause any prejudice to the petitioners. The applications filed by the petitioners for filing additional written statement were accepted and their applications for supply of documents were not entertained at that stage as the copies of the documents were already supplied to the petitioners along with the petition and still, if the petitioners desired to have the copies of any documents, they were granted liberty to obtain the same. On a perusal of the affidavit-in-reply filed by the respondent no.2, it appears that the Collector had conducted the preliminary enquiry and has framed the charge. The judgment reported in 2009(12) SCC 78 (Union of India & others Versus Gyan Chand Chattar) and relied on by the counsel for the petitioners cannot be made applicable to the case in hand as it prima-facie appears that the charges framed in this case are clear and specific. The abovereferred judgment relates to Service Law and cannot be strictly made applicable to the case in hand. Moreover, in my view, the charges are specific and the petitioners are clearly made aware about the case which they have to meet. The judgment reported in 1992 Mh.L.J. 552 (Punjab Natthuji Rakesh & others Versus State of Maharashtra & others) and relied on by the counsel for the petitioners cannot be applied at this stage of the proceedings, as this Court is not finally deciding whether the petitioners can be disqualified on the basis of the charges or not. The affidavits filed by the petitioners were before the Collector and the Collector framed the charges on 8 WPS4358&4360-12 the basis of the petitions and the available documents. The judgment reported in 2005(4) Mh.L.J. 211 (Sumitradevi Mahipal Kureel Versus State of Maharashtra & others) is distinguishable on facts and, hence, cannot be made applicable to the case in hand. In stead of defending the proceedings on merit, the petitioners have approached this Court in the midst of the proceedings when the witnesses of the respondent no.3 are being examined and cross-examined. The petitioners can as well raise all the grounds at an appropriate stage. It would not be appropriate to dismiss the Disqualification Petitions filed by the respondent no.3 on the basis of the submissions made on behalf of the petitioners. In the result, the writ petitions are dismissed with no order as to costs. The parties undertake to remain present before the respondent no.2-Collector on 02.11.2012. JUDGE APTE 9 WPS4358&4360-12 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR C.A.W. NO. 2507/2012 IN WRIT PETITION NO. 4358/2012 (DEEPAK SHYAMKISHOR NASHINE VERSUS STATE OF MAHARASHTRA & OTHERS) WITH C.A.W. NO. 2508/2012 IN WRIT PETITION NO. 4360/2012 (SEEMA SUNIL BHALERAO VERSUS STATE OF MAHARASHTRA & OTHERS) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri R.S. Parsodkar, counsel for the petitioner. Shri N.W. Sambre, Government Pleader, counsel for the R-1 & 2. Shri J.T. Gilda and Shri A.A. Madiwale, counsel for the R-3. Court's or Judge's orders CORAM : SMT. VASANTI A. NAIK, J. DATE : OCTOBER 23 . , 2012 Heard. The proposed amendment does not change the nature of the petition. The same is granted. The amendment should be carried out forthwith. The civil application is allowed and disposed of. JUDGE APTE