Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.301 OF 2012
Vinod s/o Gopichand Rathod,
age: 31 years, Occ: Social Worker
and Legal Practitioner,
R/o Jintur, Taluka Jintur,
District Parbhani. Petitioner
Versus
1 The State of Maharashtra,
Urban Development Department,
Mantralaya, Mumbai,
through its Secretary.
2 The Collector,
Collector Office,
Parbhani.
3 The Sub Divisional Officer,
Sailu, Tq. Sailu,
District Parbhani.
4 The Municipal Council,
Jintur, Tq. Jintur,
District Parbhani,
through its Chief Officer.
5 Pathan Nafeesa Bee Khalek,
age: 35 years, Occ: Social Work,
R/o Raj Mohalla, Jintur,
Tq. & District Jintur.
6 Pathan Amina Begam Mubsarkha,
age: 29 years, Occ: Social work,
R/o Varul Vaise, Jintur,
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Tq. and District Jintur.
7 Farooqui Kafilur Raheman Inaytur,
age: 45 years, Occ: Social work,
R/o Matth Galli, Kazi Galli, Jintur,
Tq. & District Jintur.
8 Ghuge Arun Asaram,
age: 36 years, Occ: social work,
R/o Bamni Flat, Jintur,
Tq. & District Jintur.
9 Sau.Doefode Kalpana Manohar,
age: 30 years, Occ: social work,
R/o Ganesh Nagar, Jintur,
Tq. & District Jintur.
10 Shaikh Khaleel Shaikh Budhan,
age: 40 years, Occ: social work,
R/o Khatik Galli, Jintur,
Tq. & District Jintur.
11 Reshma Begam Kareem Kha,
age: 29 years, Occ: social work,
R/o Pathan Mohalla, Jintur,
Tq. & District Jintur.
12 Deshmukh Pratap Vinayakrao,
age: 40 years, Occ: social work,
R/o Hutatma Smarak, Jintur,
Tq. & District Jintur. Respondents
Mr.N.L.Jadhav, advocate for the petitioner.
Mr.V.D.Rakh,, A.G.P. For Respondent Nos.1 to 3.
Mr.S.S.Rathi, advocate for Respondent No.4.
Mr.S.T.Veer, advocate for Respondent Nos.5 & 7 to 12.
Respondent No.6 served.
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CORAM : R.M.BORDE &
U.D.SALVI, JJ.
th
December, 2012.
Reserved on : 18
th
February, 2013.
Pronounced on: 05
JUDGMENT (Per R.M.Borde, J.):
1 Heard Mr.N.L.Jadhav, learned Counsel for the
petitioner, learned A.G.P. for Respondent Nos.1 to 3, Mr.S.S.Rathi,
learned Counsel for Respondent No.4 and Mr.S.T.Veer, learned
Counsel for Respondent Nos.5 & 7 to 12. None appears for
Respondent No.6, though served.
2 Rule. Rule made returnable forthwith and heard
finally by consent of learned Counsel for respective parties.
3 The petitioner is praying for issuance of writ of
mandamus or any other writ or direction in the like nature to
Respondent No.2Collector, Parbhani, to declare him as a
nominated Councilor of Municipal Council, Jintur, Tq. Jintur,
District Parbhani. The petitioner also prays for quashing Rules 3
and 5 of the Maharashtra Municipal Councils and Nagar
Panchayats (Qualifications and Procedure for Appointment of
Nominated Councillors) Rules, 2010.
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4 The elections to Respondent No.4 Jintur Municipal
Council were held in December, 2011. The total strength of the
elected councilors of the Municipal Council is twentyone, whereas,
the Collector, in view of provisions of Section 9(1)(b) of the
Maharashtra Municipal Councils, Nagar Panchayats & Industrial
Townships Act, 1965 (for short, hereinafter referred to as “Act of
1965”), is supposed to nominate two councilors. The elected
councilors set up by the CongressI party are twelve in number,
whereas, there are eight councilors got elected, who were set up by
the Nationalist Congress Party. One independent candidate also
got elected as councilor of the Jintur Municipal Council.
5 The Collector convened a special meeting on
03.01.2012 for nominating two councilors as provided by Section
9(1)(b) of the Act of 1965 read with Rules prescribed in that behalf.
There were seventeen members who attended the meeting, out of
which, twelve members belong to CongressI Party, whereas, four
members belong to Nationalist Congress Party and one
independent candidate attended the meeting. It has also been
stated that four members belong to Nationalist Congress Party did
not remain present at the meeting. The candidature of one Kiran
Vasantrao Wattamwar was declared on behalf of CongressI Party
and considering relative strength of CongressI Party, the Collector
nominated the said candidate as a councilor of the Jintur
Municipal Council.
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6 The name of the petitioner was suggested on behalf of
Nationalist Congress Party. It is stated that one Farooqui Kapilur
Raheman Inaytur Raheman, who claims to be the group leader of
Nationalist Congress Party recommended name of petitioner as a
candidate on behalf of group of councilors belonging to Nationalist
Congress Party. The memorandum recommending name of the
petitioner, which was presented on 29.12.2011, is stated to have
been signed by five members, whereas, there were four members
belonging to Nationalist Congress Party present at the meeting held
on 03.01.2012. The Collector refused to nominate petitioner as
councilor on the ground that only four members have signed the
authorization out of eight elected councilors belonging to
Nationalist Congress Party.
7 Learned Counsel appearing for the petitioner contends
that the Collector shall have to look to the relative strength of the
recognized Parties or registered Parties or groups and nominate the
members as nearly as may be in proportion to the strength of such
Parties or groups in the Council after consulting with each of such
Parties or groups. It is contended that candidature of only two
members was recommended. One candidate was recommended on
behalf of CongressI Party whose strength in the Council is twelve,
whereas, the Nationalist Congress Party suggested name of the
petitioner. It is contended that it does not matter whether four
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members out of 8 attended the meeting or that those members
attending the meeting only supported candidature of the petitioner.
The relative strength of Nationalist Congress Party in the Council is
eight and even assuming that four members supported
candidature of petitioner, since there was no other candidate in the
fray or that there was no recommendation either on behalf of any
other party or the group, the Collector ought to have nominated
the petitioner as a councilor.
8 Section 9 of the Act of 1965 prescribes composition of
Councils. As per sub section (1)(a) of Section 9, every Council
shall consist of the Councilors elected at ward elections, by direct
elections and clause (b) prescribes that such number of
Councilors, not exceeding ten per cent of the total number of
elected Councilors or five, whichever is less, having special
knowledge or experience in municipal administration, to be
nominated by the Collector in such manner, as may be prescribed.
Considering the strength of members of Municipal Council, Jintur,
to be 21, the Collector is entitled to nominate two councilors in
view of subsection (1)(b) of Section 9.
9 Section 51B of the Act of 1965 provides for nomination
of councilors, which reads thus:
51B Nomination of Councilors
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(1) The Collector shall, within seven days from the
date of election of the President call a special meeting
for the purpose of nominating Councilors.
(2) The nomination of the Councilors under clause
(b) of subsection (1) of Section 9, shall be made in the
prescribed manner.
(3) The meeting called under subsection (1) shall be
prescribed over by the Collector or such officer as the
Collector may be order in writing appoint in this
behalf. The Collector or such officer shall, when
presiding over such meeting, have the same powers as
the President of a Council when presiding over a
meeting of the Council has, but shall not had the right
to vote;
(4) Provided that, notwithstanding anything
contained in this Act for regulating the procedure at
meeting (including the quorum required thereat), the
Collector or the officer presiding over such meeting
may, for reasons which in his opinion are sufficient,
refuse to adjourn such meeting.)
10 The State has framed Rules prescribing the procedure
for nominating councilors, which are called as the Maharashtra
Municipal Councils and Nagar Panchayats (Qualification and
Procedure for Appointment of Nominated Councillors) Rules, 2010.
Rules 3 and 5 thereof are relevant for consideration and those are
as quoted below:
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3 Determination of number of nominated
Councilors – Subject to the provisions of rule 4, the
Collector shall nominate such number of Councilors,
not exceeding ten per cent of the total number of
elected councilors or five, whichever is less, at the first
meeting of the council after the election of the
President and VicePresident:
Provided that, while determining the number of
nominated Councilors, a fraction of less than onehalf
shall be ignored and a fraction of onehalf or more
shall be reckoned as one.
5 Nomination of Councilors – In nominating the
Councilors, the Collector shall take into account the
relative strength of recognized parties or registered
parties or groups, and nominate the members, as
nearly as may be, in proportion to the strength of such
parties or groups in the Council, after consulting
leader of each of such parties or groups:
Provided that, nothing containing in this rule
shall be construed as preventing the Collector from
nominating any member not belonging to any such
party or group:
Provided further that, every endeavour shall be
made to ensure that one Councilor each possessing
any of the qualifications referred to in clauses (a) to (g)
of rule 4 has to be nominated.
11 Rule 5 of the Rules of 2010 provides that the Collector
shall take into account the relative strength of recognized parties
or registered parties or groups, and nominate the members, as
nearly as may be, in proportion to the strength of such parties or
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groups in the Council, after consulting with leader of each of such
parties or groups. In the instant matter, the Collector has
nominated Mr.Kiran Vasantrao Wattamwar as a councilor in
consultation with CongressI Party whose strength in the Council
is twelve, whereas, strength of Nationalist Congress Party in the
Council is eight councilors. Even if assuming the contention of the
Collector that only four members of Nationalist Congress Party
have supported candidature of the petitioner, out of total strength
of eight members, taking into consideration the situation that
neither the group of other four councilors or one independent
candidate did set up any other candidate nor opposed the
nomination of petitioner on behalf of four councilors of Nationalist
Congress Party, it was not open for the Collector to refuse to
nominate the petitioner as councilor. The things would have been
different had the other group set up any other candidate opposed
nomination of petitioner, which has been backed by four members
of Nationalist Congress Party. In our opinion, the Collector has
misread the provisions of Rule 5 of Rules of 2010 in refusing to
nominate the petitioner as councilor. The direction, as sought for
by the petitioner, therefore, deserves to be issued.
12 The petitioner has also requested for quashing Rules 3
and 5 of the Maharashtra Municipal Councils and Nagar
Panchayats (Qualifications and Procedure for Appointment of
Nominated Councilors) Rules, 2010. The petitioner places reliance
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on the judgment of the Division Bench of this Court in the matter
of Gajanan Bhaurao Waghmare Vs. State of Maharashtra &
, reported in 2008(4) Bombay Cases Reporter 317. On
others
perusal of the judgment, it appears that, similar set of Rules were
framed in 2006 and Rules 3 and 5 of the Rules of 2006, which are
exactly same as in case of Rules of 2010, were subjected to
challenge in the petition presented to this Court. The Division
Bench of this Court, considering substantive provisions of Section
9(1)(b) of the Act of 1965, prevailing then, proceeded to direct
quashing of the Rules. Section 9(1)(b), which was in operation
then, provided that such number of councilors, not exceeding ten
per cent of the total number of elected councilors or five, which is
less, were to nominate the members in the manner prescribed.
The word “Council” is substituted by the word “Collector” in view of
the amendment brought into force by Amending Act 7 of 2009,
effective from 14.01.2009. In view of amendment to substantive
provision, it cannot be said that the Rules in existence today i.e.
Rules of 2010 are contrary to substantive provisions of Section 9(1)
(b) of the Act of 1965. The challenge raised by the petitioner to the
legality of Rules 3 and 5, therefore, does not deserve consideration.
13 Since we are of the opinion that the Collector has
committed material illegality in refusing to nominate the petitioner
as Councilor of Jintur Municipal Council, we direct the Collector,
Parbhani, to nominate the petitioner as councilor for the remainder
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period of term of Municipal Council. The steps, in furtherance of
the direction, shall be taken by the Collector, Parbhani, within
twelve weeks from the date of this order.
14 Rule is accordingly made absolute. There shall be no
order as to costs.
U.D.SALVI R.M.BORDE
JUDGE JUDGE
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.301 OF 2012
Vinod s/o Gopichand Rathod,
age: 31 years, Occ: Social Worker
and Legal Practitioner,
R/o Jintur, Taluka Jintur,
District Parbhani. Petitioner
Versus
1 The State of Maharashtra,
Urban Development Department,
Mantralaya, Mumbai,
through its Secretary.
2 The Collector,
Collector Office,
Parbhani.
3 The Sub Divisional Officer,
Sailu, Tq. Sailu,
District Parbhani.
4 The Municipal Council,
Jintur, Tq. Jintur,
District Parbhani,
through its Chief Officer.
5 Pathan Nafeesa Bee Khalek,
age: 35 years, Occ: Social Work,
R/o Raj Mohalla, Jintur,
Tq. & District Jintur.
6 Pathan Amina Begam Mubsarkha,
age: 29 years, Occ: Social work,
R/o Varul Vaise, Jintur,
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Tq. and District Jintur.
7 Farooqui Kafilur Raheman Inaytur,
age: 45 years, Occ: Social work,
R/o Matth Galli, Kazi Galli, Jintur,
Tq. & District Jintur.
8 Ghuge Arun Asaram,
age: 36 years, Occ: social work,
R/o Bamni Flat, Jintur,
Tq. & District Jintur.
9 Sau.Doefode Kalpana Manohar,
age: 30 years, Occ: social work,
R/o Ganesh Nagar, Jintur,
Tq. & District Jintur.
10 Shaikh Khaleel Shaikh Budhan,
age: 40 years, Occ: social work,
R/o Khatik Galli, Jintur,
Tq. & District Jintur.
11 Reshma Begam Kareem Kha,
age: 29 years, Occ: social work,
R/o Pathan Mohalla, Jintur,
Tq. & District Jintur.
12 Deshmukh Pratap Vinayakrao,
age: 40 years, Occ: social work,
R/o Hutatma Smarak, Jintur,
Tq. & District Jintur. Respondents
Mr.N.L.Jadhav, advocate for the petitioner.
Mr.V.D.Rakh,, A.G.P. For Respondent Nos.1 to 3.
Mr.S.S.Rathi, advocate for Respondent No.4.
Mr.S.T.Veer, advocate for Respondent Nos.5 & 7 to 12.
Respondent No.6 served.
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CORAM : R.M.BORDE &
U.D.SALVI, JJ.
th
December, 2012.
Reserved on : 18
th
February, 2013.
Pronounced on: 05
JUDGMENT (Per R.M.Borde, J.):
1 Heard Mr.N.L.Jadhav, learned Counsel for the
petitioner, learned A.G.P. for Respondent Nos.1 to 3, Mr.S.S.Rathi,
learned Counsel for Respondent No.4 and Mr.S.T.Veer, learned
Counsel for Respondent Nos.5 & 7 to 12. None appears for
Respondent No.6, though served.
2 Rule. Rule made returnable forthwith and heard
finally by consent of learned Counsel for respective parties.
3 The petitioner is praying for issuance of writ of
mandamus or any other writ or direction in the like nature to
Respondent No.2Collector, Parbhani, to declare him as a
nominated Councilor of Municipal Council, Jintur, Tq. Jintur,
District Parbhani. The petitioner also prays for quashing Rules 3
and 5 of the Maharashtra Municipal Councils and Nagar
Panchayats (Qualifications and Procedure for Appointment of
Nominated Councillors) Rules, 2010.
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4 The elections to Respondent No.4 Jintur Municipal
Council were held in December, 2011. The total strength of the
elected councilors of the Municipal Council is twentyone, whereas,
the Collector, in view of provisions of Section 9(1)(b) of the
Maharashtra Municipal Councils, Nagar Panchayats & Industrial
Townships Act, 1965 (for short, hereinafter referred to as “Act of
1965”), is supposed to nominate two councilors. The elected
councilors set up by the CongressI party are twelve in number,
whereas, there are eight councilors got elected, who were set up by
the Nationalist Congress Party. One independent candidate also
got elected as councilor of the Jintur Municipal Council.
5 The Collector convened a special meeting on
03.01.2012 for nominating two councilors as provided by Section
9(1)(b) of the Act of 1965 read with Rules prescribed in that behalf.
There were seventeen members who attended the meeting, out of
which, twelve members belong to CongressI Party, whereas, four
members belong to Nationalist Congress Party and one
independent candidate attended the meeting. It has also been
stated that four members belong to Nationalist Congress Party did
not remain present at the meeting. The candidature of one Kiran
Vasantrao Wattamwar was declared on behalf of CongressI Party
and considering relative strength of CongressI Party, the Collector
nominated the said candidate as a councilor of the Jintur
Municipal Council.
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6 The name of the petitioner was suggested on behalf of
Nationalist Congress Party. It is stated that one Farooqui Kapilur
Raheman Inaytur Raheman, who claims to be the group leader of
Nationalist Congress Party recommended name of petitioner as a
candidate on behalf of group of councilors belonging to Nationalist
Congress Party. The memorandum recommending name of the
petitioner, which was presented on 29.12.2011, is stated to have
been signed by five members, whereas, there were four members
belonging to Nationalist Congress Party present at the meeting held
on 03.01.2012. The Collector refused to nominate petitioner as
councilor on the ground that only four members have signed the
authorization out of eight elected councilors belonging to
Nationalist Congress Party.
7 Learned Counsel appearing for the petitioner contends
that the Collector shall have to look to the relative strength of the
recognized Parties or registered Parties or groups and nominate the
members as nearly as may be in proportion to the strength of such
Parties or groups in the Council after consulting with each of such
Parties or groups. It is contended that candidature of only two
members was recommended. One candidate was recommended on
behalf of CongressI Party whose strength in the Council is twelve,
whereas, the Nationalist Congress Party suggested name of the
petitioner. It is contended that it does not matter whether four
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members out of 8 attended the meeting or that those members
attending the meeting only supported candidature of the petitioner.
The relative strength of Nationalist Congress Party in the Council is
eight and even assuming that four members supported
candidature of petitioner, since there was no other candidate in the
fray or that there was no recommendation either on behalf of any
other party or the group, the Collector ought to have nominated
the petitioner as a councilor.
8 Section 9 of the Act of 1965 prescribes composition of
Councils. As per sub section (1)(a) of Section 9, every Council
shall consist of the Councilors elected at ward elections, by direct
elections and clause (b) prescribes that such number of
Councilors, not exceeding ten per cent of the total number of
elected Councilors or five, whichever is less, having special
knowledge or experience in municipal administration, to be
nominated by the Collector in such manner, as may be prescribed.
Considering the strength of members of Municipal Council, Jintur,
to be 21, the Collector is entitled to nominate two councilors in
view of subsection (1)(b) of Section 9.
9 Section 51B of the Act of 1965 provides for nomination
of councilors, which reads thus:
51B Nomination of Councilors
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(1) The Collector shall, within seven days from the
date of election of the President call a special meeting
for the purpose of nominating Councilors.
(2) The nomination of the Councilors under clause
(b) of subsection (1) of Section 9, shall be made in the
prescribed manner.
(3) The meeting called under subsection (1) shall be
prescribed over by the Collector or such officer as the
Collector may be order in writing appoint in this
behalf. The Collector or such officer shall, when
presiding over such meeting, have the same powers as
the President of a Council when presiding over a
meeting of the Council has, but shall not had the right
to vote;
(4) Provided that, notwithstanding anything
contained in this Act for regulating the procedure at
meeting (including the quorum required thereat), the
Collector or the officer presiding over such meeting
may, for reasons which in his opinion are sufficient,
refuse to adjourn such meeting.)
10 The State has framed Rules prescribing the procedure
for nominating councilors, which are called as the Maharashtra
Municipal Councils and Nagar Panchayats (Qualification and
Procedure for Appointment of Nominated Councillors) Rules, 2010.
Rules 3 and 5 thereof are relevant for consideration and those are
as quoted below:
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3 Determination of number of nominated
Councilors – Subject to the provisions of rule 4, the
Collector shall nominate such number of Councilors,
not exceeding ten per cent of the total number of
elected councilors or five, whichever is less, at the first
meeting of the council after the election of the
President and VicePresident:
Provided that, while determining the number of
nominated Councilors, a fraction of less than onehalf
shall be ignored and a fraction of onehalf or more
shall be reckoned as one.
5 Nomination of Councilors – In nominating the
Councilors, the Collector shall take into account the
relative strength of recognized parties or registered
parties or groups, and nominate the members, as
nearly as may be, in proportion to the strength of such
parties or groups in the Council, after consulting
leader of each of such parties or groups:
Provided that, nothing containing in this rule
shall be construed as preventing the Collector from
nominating any member not belonging to any such
party or group:
Provided further that, every endeavour shall be
made to ensure that one Councilor each possessing
any of the qualifications referred to in clauses (a) to (g)
of rule 4 has to be nominated.
11 Rule 5 of the Rules of 2010 provides that the Collector
shall take into account the relative strength of recognized parties
or registered parties or groups, and nominate the members, as
nearly as may be, in proportion to the strength of such parties or
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groups in the Council, after consulting with leader of each of such
parties or groups. In the instant matter, the Collector has
nominated Mr.Kiran Vasantrao Wattamwar as a councilor in
consultation with CongressI Party whose strength in the Council
is twelve, whereas, strength of Nationalist Congress Party in the
Council is eight councilors. Even if assuming the contention of the
Collector that only four members of Nationalist Congress Party
have supported candidature of the petitioner, out of total strength
of eight members, taking into consideration the situation that
neither the group of other four councilors or one independent
candidate did set up any other candidate nor opposed the
nomination of petitioner on behalf of four councilors of Nationalist
Congress Party, it was not open for the Collector to refuse to
nominate the petitioner as councilor. The things would have been
different had the other group set up any other candidate opposed
nomination of petitioner, which has been backed by four members
of Nationalist Congress Party. In our opinion, the Collector has
misread the provisions of Rule 5 of Rules of 2010 in refusing to
nominate the petitioner as councilor. The direction, as sought for
by the petitioner, therefore, deserves to be issued.
12 The petitioner has also requested for quashing Rules 3
and 5 of the Maharashtra Municipal Councils and Nagar
Panchayats (Qualifications and Procedure for Appointment of
Nominated Councilors) Rules, 2010. The petitioner places reliance
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on the judgment of the Division Bench of this Court in the matter
of Gajanan Bhaurao Waghmare Vs. State of Maharashtra &
, reported in 2008(4) Bombay Cases Reporter 317. On
others
perusal of the judgment, it appears that, similar set of Rules were
framed in 2006 and Rules 3 and 5 of the Rules of 2006, which are
exactly same as in case of Rules of 2010, were subjected to
challenge in the petition presented to this Court. The Division
Bench of this Court, considering substantive provisions of Section
9(1)(b) of the Act of 1965, prevailing then, proceeded to direct
quashing of the Rules. Section 9(1)(b), which was in operation
then, provided that such number of councilors, not exceeding ten
per cent of the total number of elected councilors or five, which is
less, were to nominate the members in the manner prescribed.
The word “Council” is substituted by the word “Collector” in view of
the amendment brought into force by Amending Act 7 of 2009,
effective from 14.01.2009. In view of amendment to substantive
provision, it cannot be said that the Rules in existence today i.e.
Rules of 2010 are contrary to substantive provisions of Section 9(1)
(b) of the Act of 1965. The challenge raised by the petitioner to the
legality of Rules 3 and 5, therefore, does not deserve consideration.
13 Since we are of the opinion that the Collector has
committed material illegality in refusing to nominate the petitioner
as Councilor of Jintur Municipal Council, we direct the Collector,
Parbhani, to nominate the petitioner as councilor for the remainder
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period of term of Municipal Council. The steps, in furtherance of
the direction, shall be taken by the Collector, Parbhani, within
twelve weeks from the date of this order.
14 Rule is accordingly made absolute. There shall be no
order as to costs.
U.D.SALVI R.M.BORDE
JUDGE JUDGE
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