Full Judgment Text
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0801wp7409.14Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 7409 OF 2014
PETITIONER : Nilesh S/o. Babarao Thombare, Aged about
35 years, Occ : Agriculturist and Vice
President, Municipal Council, Hinganghat,
Tq.Hinganghat, Distt. Wardha.
...VERSUS...
RESPONDENTS : 1) The Collector, Wardha.
2) The SubDivisional Officer, Hinganghat,
Distt. Wardha and Presiding Officer.
3) The Municipal Council, Hinganghat, through
its Chief Officer, Having office at
Hinganghat, Distt. Wardha.
4) Pandhari Haribhau Kapse, Age : Adult,
5) Nilesh Babarao Thombare, Age : Adult,
6) Nagesh Chandrabhan Jivankar, Age : Adult,
7) Smt.Gita Gopal Mandawkar, Age : Adult,
8) Smt.Aparna Sunil Anasne, Age : Adult,
9) Smt.Suryakant Ramchandrarao Madavi, Age
: Adult,
10) Smt.Nita Satish Dhobe, Age : Adult,
11) Balraj Rambhau Awchat, Age : Adult,
12) Anil Babarao Bhongade, Age : Adult,
13) Smt.Latatai Narhari Thool, Age : Adult,
14) Vitthal Rajaram Gudghane, Age : Adult,
15) Smt.Jyoti Sureshrao Mude, Age : Adult,
16) Balaji Mahadeosingh Gahalot, Age : Adult,
17) Smt.Kokila Manohar Kulmethe, Age : Adult,
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18) Jitendra Manikrao Kukse, Age : Adult,
19) Smt.Pushpa Waman Katare, Age : Adult,
20) Ashok Marotrao Parate, Age : Adult,
21) Badalsingh Mannalal Rewate, Age : Adult,
22) Smt.Shubhangi Sunil Dongre, Age : Adult,
23) Smt.Madhuri Mahesh Khadse, Age : Adult,
24) Adv. Sudhir Daulatchandji Kothari, Age :
Adult,
25) Haridas Baliram Katkar, Age : Adult,
26) Smt.Pratibha Devendra Padole, Age : Adult,
27) Smt.Kavita Rajesh Bhaimare, Age : Adult,
28) Pralay Bhaurao Telang, Age : Adult,
29) Smt.Sonali Ranjit Sute, Age : Adult,
30) Vinod Dadaji Zade, Age : Adult,
31) Smt.Sharda Baratlal Patel, Age : Adult,
32) Suresh Ramaji Munjewar, Age : Adult,
33) Shankar Haribhau Mohmare, Age : Adult,
34) Smt.Sunita Dilip Choudhary, Age : Adult,
35) Smt.Sangita Maroti Sathe, Age : Adult,
36) Ku.Sonali Manik Landge, Age : Adult,
37) Surendra Gokuldas Rathi, Age : Adult,
38) Dashrath Pandurang Thakare, Age : Adult,
Respondent Nos.4 to 38 are Councilors,
Municipal Council, Hinganghat, Distt.
Wardha.
Mr.Firdos Mirza, Advocate for petitioner.
Mr. H.D. Dubey, A.G.P. for respondent No.1.
Mr.Anjan De, Advocate for respondent No.14.
None for respondent Nos.2 to 13 and 15 to 38.
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0801wp7409.14Judgment
CORAM : ANOOP V. MOHTA &
A. R. JOSHI, JJ.
DATE OF RESERVING THE JUDGMENT : 08.01.2015.
DATE OF PRONOUNCING THE JUDGMENT: 15.01.2015
J U D G M E N T (Per : Anoop V. Mohta, J.)
1) Rule returnable forthwith. The petition was heard finally
by consent of the learned counsel for the contesting parties.
2) The petitioner, Councilor of Municipal Council Hinganghat
(The Council) (BClass Municipal Council) at present Vice President,
has prayed to quash and set aside election nomination dated
23/12/2014 of the Subject Committees and Standing Committees of
respondent No.3Municipal Council Hinganghat, along with subsequent
elections of Chairmans of said Committees; and also prayed for
direction against respondent No.1 to conduct elections of sub
committee afresh as per the provisions of Maharashtra Municipalities
(Elections to Subjects Committees) Rules, 1966 (The Rules); and also
prayed for stay of the proceedings/meeting dated 23/12/2014.
3) Contesting party appeared and opposed all the prayers. As
submission was made that the petition can be disposed of finally at the
admission stage, we heard finally and proceeded accordingly. The
counsel for the parties read and referred the provisions of the
Maharashtra Municipal Councils, Nagar Panchayats and Industrial
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0801wp7409.14Judgment
Townships Act, 1965 (The Act), specifically sections 63 and 64
including amended provisions (Maharashtra 36 of 2006 dated
13/12/2006) and the unamended provisions. There is no dispute and
no challenge by the petitioner about the first requisite election already
held based upon the existing provisions, after new election of Municipal
Council. The contention, with regard to the subsequent election in
question, ought to have been taken place based upon the Rules as
referred above, is not acceptable. Once the elections are held as per the
existing amended provisions of the Act, for all the subsequent elections,
the same procedure needs to be followed. There is no question of
dissecting the existing provisions of the Act for subsequent election,
once the procedure of acceptance of rejection of nomination paper has
been deleted and so also the provisions of section 3 (3A) and (3B) have
been substituted by present provisions of Section 2 (2a), (2b) and (2A).
In Section 64 of the old provisions subsections (ii)(a) and (b) have
been substituted and the word “election” has been substituted by the
word “nomination”. The entire process of election which was prevailing
before 13/12/2006 has been substituted by nomination. Therefore, as
the elections have been substituted by nomination and so also Section
64(ii)(b) by nomination, the submission that the earlier Election Rules
be used and utilized is unacceptable, being inconsistent with the
amended provisions of the Act. The submission so raised based upon
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the old Rules, in our view, cannot be used and utilized for subsequent
such election. We find, in view of above provisions of the Act, no case is
made out by the petitioner to interfere with the meeting and the
election proceedings so initiated.
4) We have also noted that all the members of the Subject
Committees and the Standing Committee have already taken charge
and are functioning as proceedings dated 23/12/2014 have been
implemented from 26/12/2014 and meetings of the respective
committees have already taken place. There is no case of any
interference made out on facts as well as on law as recorded above.
This is also for the reason that the petitioner, at present in view of the
nomination procedure, has already been working as Chairman of
Planning and Development Committee and also as a member of
Standing Committee. Therefore, the challenge so raised at the instance
of petitioner is also unsustainable.
5) The petitioner having participated now cannot be
permitted to raise such issue. The submission of learned counsel
appearing for petitioner based upon the judgment in the case of
Ramchandra Keshav Adke v. Govind Joti Chavare reported in (1973)
1 SCC 559 that “ where a power is given to do a certain thing in a certain
way, the thing must be done in that way or not at all and that other
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methods of performance are necessarily forbidden ” is not acceptable, in
view of the admitted facts and the clear amended provisions of law, as
referred above. The provisions of Amended Act shall prevail over
unamended Rules. The inconsistency, therefore, even if any, the
provisions of the Amended Act would prevail. The parties have already
accordingly acted upon the same.
6) Therefore, taking overall view of the matter, we see no
reason and/or case is made out to interfere with the elections so held
and so also the meetings based upon the same. The same are well
within the framework of law and the record.
7) The petition is, therefore, disposed of.
8) Rule stands discharged. No costs.
(A.R.JOSHI, J.) (ANOOP V. MOHTA, J.)
KHUNTE
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0801wp7409.14Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 7409 OF 2014
PETITIONER : Nilesh S/o. Babarao Thombare, Aged about
35 years, Occ : Agriculturist and Vice
President, Municipal Council, Hinganghat,
Tq.Hinganghat, Distt. Wardha.
...VERSUS...
RESPONDENTS : 1) The Collector, Wardha.
2) The SubDivisional Officer, Hinganghat,
Distt. Wardha and Presiding Officer.
3) The Municipal Council, Hinganghat, through
its Chief Officer, Having office at
Hinganghat, Distt. Wardha.
4) Pandhari Haribhau Kapse, Age : Adult,
5) Nilesh Babarao Thombare, Age : Adult,
6) Nagesh Chandrabhan Jivankar, Age : Adult,
7) Smt.Gita Gopal Mandawkar, Age : Adult,
8) Smt.Aparna Sunil Anasne, Age : Adult,
9) Smt.Suryakant Ramchandrarao Madavi, Age
: Adult,
10) Smt.Nita Satish Dhobe, Age : Adult,
11) Balraj Rambhau Awchat, Age : Adult,
12) Anil Babarao Bhongade, Age : Adult,
13) Smt.Latatai Narhari Thool, Age : Adult,
14) Vitthal Rajaram Gudghane, Age : Adult,
15) Smt.Jyoti Sureshrao Mude, Age : Adult,
16) Balaji Mahadeosingh Gahalot, Age : Adult,
17) Smt.Kokila Manohar Kulmethe, Age : Adult,
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18) Jitendra Manikrao Kukse, Age : Adult,
19) Smt.Pushpa Waman Katare, Age : Adult,
20) Ashok Marotrao Parate, Age : Adult,
21) Badalsingh Mannalal Rewate, Age : Adult,
22) Smt.Shubhangi Sunil Dongre, Age : Adult,
23) Smt.Madhuri Mahesh Khadse, Age : Adult,
24) Adv. Sudhir Daulatchandji Kothari, Age :
Adult,
25) Haridas Baliram Katkar, Age : Adult,
26) Smt.Pratibha Devendra Padole, Age : Adult,
27) Smt.Kavita Rajesh Bhaimare, Age : Adult,
28) Pralay Bhaurao Telang, Age : Adult,
29) Smt.Sonali Ranjit Sute, Age : Adult,
30) Vinod Dadaji Zade, Age : Adult,
31) Smt.Sharda Baratlal Patel, Age : Adult,
32) Suresh Ramaji Munjewar, Age : Adult,
33) Shankar Haribhau Mohmare, Age : Adult,
34) Smt.Sunita Dilip Choudhary, Age : Adult,
35) Smt.Sangita Maroti Sathe, Age : Adult,
36) Ku.Sonali Manik Landge, Age : Adult,
37) Surendra Gokuldas Rathi, Age : Adult,
38) Dashrath Pandurang Thakare, Age : Adult,
Respondent Nos.4 to 38 are Councilors,
Municipal Council, Hinganghat, Distt.
Wardha.
Mr.Firdos Mirza, Advocate for petitioner.
Mr. H.D. Dubey, A.G.P. for respondent No.1.
Mr.Anjan De, Advocate for respondent No.14.
None for respondent Nos.2 to 13 and 15 to 38.
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0801wp7409.14Judgment
CORAM : ANOOP V. MOHTA &
A. R. JOSHI, JJ.
DATE OF RESERVING THE JUDGMENT : 08.01.2015.
DATE OF PRONOUNCING THE JUDGMENT: 15.01.2015
J U D G M E N T (Per : Anoop V. Mohta, J.)
1) Rule returnable forthwith. The petition was heard finally
by consent of the learned counsel for the contesting parties.
2) The petitioner, Councilor of Municipal Council Hinganghat
(The Council) (BClass Municipal Council) at present Vice President,
has prayed to quash and set aside election nomination dated
23/12/2014 of the Subject Committees and Standing Committees of
respondent No.3Municipal Council Hinganghat, along with subsequent
elections of Chairmans of said Committees; and also prayed for
direction against respondent No.1 to conduct elections of sub
committee afresh as per the provisions of Maharashtra Municipalities
(Elections to Subjects Committees) Rules, 1966 (The Rules); and also
prayed for stay of the proceedings/meeting dated 23/12/2014.
3) Contesting party appeared and opposed all the prayers. As
submission was made that the petition can be disposed of finally at the
admission stage, we heard finally and proceeded accordingly. The
counsel for the parties read and referred the provisions of the
Maharashtra Municipal Councils, Nagar Panchayats and Industrial
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0801wp7409.14Judgment
Townships Act, 1965 (The Act), specifically sections 63 and 64
including amended provisions (Maharashtra 36 of 2006 dated
13/12/2006) and the unamended provisions. There is no dispute and
no challenge by the petitioner about the first requisite election already
held based upon the existing provisions, after new election of Municipal
Council. The contention, with regard to the subsequent election in
question, ought to have been taken place based upon the Rules as
referred above, is not acceptable. Once the elections are held as per the
existing amended provisions of the Act, for all the subsequent elections,
the same procedure needs to be followed. There is no question of
dissecting the existing provisions of the Act for subsequent election,
once the procedure of acceptance of rejection of nomination paper has
been deleted and so also the provisions of section 3 (3A) and (3B) have
been substituted by present provisions of Section 2 (2a), (2b) and (2A).
In Section 64 of the old provisions subsections (ii)(a) and (b) have
been substituted and the word “election” has been substituted by the
word “nomination”. The entire process of election which was prevailing
before 13/12/2006 has been substituted by nomination. Therefore, as
the elections have been substituted by nomination and so also Section
64(ii)(b) by nomination, the submission that the earlier Election Rules
be used and utilized is unacceptable, being inconsistent with the
amended provisions of the Act. The submission so raised based upon
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0801wp7409.14Judgment
the old Rules, in our view, cannot be used and utilized for subsequent
such election. We find, in view of above provisions of the Act, no case is
made out by the petitioner to interfere with the meeting and the
election proceedings so initiated.
4) We have also noted that all the members of the Subject
Committees and the Standing Committee have already taken charge
and are functioning as proceedings dated 23/12/2014 have been
implemented from 26/12/2014 and meetings of the respective
committees have already taken place. There is no case of any
interference made out on facts as well as on law as recorded above.
This is also for the reason that the petitioner, at present in view of the
nomination procedure, has already been working as Chairman of
Planning and Development Committee and also as a member of
Standing Committee. Therefore, the challenge so raised at the instance
of petitioner is also unsustainable.
5) The petitioner having participated now cannot be
permitted to raise such issue. The submission of learned counsel
appearing for petitioner based upon the judgment in the case of
Ramchandra Keshav Adke v. Govind Joti Chavare reported in (1973)
1 SCC 559 that “ where a power is given to do a certain thing in a certain
way, the thing must be done in that way or not at all and that other
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0801wp7409.14Judgment
methods of performance are necessarily forbidden ” is not acceptable, in
view of the admitted facts and the clear amended provisions of law, as
referred above. The provisions of Amended Act shall prevail over
unamended Rules. The inconsistency, therefore, even if any, the
provisions of the Amended Act would prevail. The parties have already
accordingly acted upon the same.
6) Therefore, taking overall view of the matter, we see no
reason and/or case is made out to interfere with the elections so held
and so also the meetings based upon the same. The same are well
within the framework of law and the record.
7) The petition is, therefore, disposed of.
8) Rule stands discharged. No costs.
(A.R.JOSHI, J.) (ANOOP V. MOHTA, J.)
KHUNTE
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