High Court of Bombay

Mangesh Vs. The State of Maharashtra and Ors.

MANU/MH/0807/2018

27.04.2018

Election

Gatneta can be changed by same process by which the leader was elected in absence of rules to the contra

The Petitioner, a Municipal Councillor at Parola and elected from the Shivsena party, assails the communication of the Collector, declaring Respondent no. 4 as Gatneta (Group Leader) of the party. In the month of November-2016, Municipal Council Election of Parola, District Jalgaon was held in which 5 candidates of Shivsena party including the Petitioner and Respondent No. 4 were elected. On 27th November, 2016, all the five candidates elected the Petitioner as their party leader and submitted representation with copy of resolution and copy of rules.

Some of the members felt aggrieved by the conduct of the Petitioner and on 12th December, 2017, a notice was issued by Respondent No. 4 to convene a meeting for taking decision on urgent matter. The meeting was held which was attended by Respondent No. 4 and two other members. The petitioner and one member remained absent. The three members unanimously resolved to change Gatneta and selected Respondent No. 4 as Gatneta. This decision was communicated to the Collector and the Collector by impugned communication recorded that, Respondent No. 4 had become Gatneta of Shivsena Municipal Party. Hence, present petition. The points for consideration are whether the change of Gatneta or leader in the present case has taken place after following the due process and whether the Collector has rightly accepted the change.

In Sunil Haribhau Kale v. Avinash Gulabrao Mardikar and others, Apex Court held that no outsider has authority to make change in the Gatneta. It was observed that, once the birth of a leader in a group is by way of election by the group, the group leader thus elected cannot be replaced otherwise than through the very same process of the election in the group, in the absence of any rules to the contra. This ruling lays down that, even if there is no provision prescribed for changing the Gatneta, the same procedure which is permitted for appointing the Gatneta can be followed for removal and replacing the Gatneta in absence of rules to the contra.

In the present case, the petitioner was not suspended nor was any action taken against him by the party for anti party activities. The judgment in Sunil Kale's case is applicable to the facts of the present case to some extent. It lays down that, the Gatneta can be changed by same process by which the leader was elected in absence of rules to the contra. In view of the Apex Court's ruling that there should not be any rule to the contra, the term providing that petitioner shall be continued as Gatneta till the next general election shall remain in operation as long as it is not changed.

There was no meeting held with proper and adequate notice. The Petitioner's contention that, the notice received by him discloses the date of meeting as 13th December, 2017 has not been controverted by Respondent No. 4. Copies of three notices disclose the date as 13th December, 2017 and therefore the meeting held on 12th December, 2017 cannot be said to be legal. Besides, the notices were served on 12th December, 2017 and the meeting was held on the same day at 10:00 AM. There was no sufficient opportunity for the parties to attend the meeting and take part in the same. The Petitioner and one of the members were absent at the time of meeting.

The Gatneta being Public Leader has to be selected by all members. Respondent No. 2 - Collector has not considered these legal aspects and has mechanically accepted the change which is not sustainable. It was essential for the group to first change the rules and then go for changing the Leader. In the light of the rules, the meeting for change of leadership could not have been held. Hence, the impugned communication is set aside. The petition is allowed.

Relevant

Sunil Haribhau Kale v. Avinash Gulabrao Mardikar and others reported in MANU/SC/0178/2015
: (2015) 2 Mh.L.J. 501

Tags : Meeting Leadership Change Validity

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