Full Judgment Text
2007:BHC-AS:8698-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2564 OF 2007
Vasant Nivrutti Gite and Anr. ... Petitioners
Versus
The Municipal Corporation of City
of Nashik and Ors. ... Respondents
Mr. R.G. Ketkar for Petitioner.
Mr. M.L. Patil for R. No. 1.
Mr. S.G. Aney, Sr. Advocate with Mr. J.N. Pawar for
R. Nos. 2 to 5.
WITH
WRIT PETITION NO. 2587 OF 2007
Shri. Prakash Mogal Londhe and Ors. ... Petitioners
Versus
Nashik Municipal Corporation and Ors....Respondents
Mr. V.A. Thorat, Sr. Advocate with Mr. Anilkumar
Patil for Petitioners.
Mr. M.L. Patil for R. No. 1.
Ms. Deepa S. Matwankar for R. No. 2.
Mr. S.G. Aney, Sr. Advocate with Mr. J.N. Pawar
for R. Nos. 3 to 5.
Mr. A.A. Kumbhakoni, Assoc. Adv. General with Mr.
R.D. Rane, Government Pleader for R. No. 7.
WITH
WRIT PETITION NO. 2622 OF 2007
Shri. Sharad Kisanrao Koshire ... Petitioner
Versus
The Secretary, Urban Development
Dept. & Ors. ... Respondents
Mr. S.G. Aney, Sr. Advocate with Mr.J.N. Pawar
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for Petitioner.
Mr. A.A. Kumbhakoni, Assoc. Adv. General with Mr.
R.D. Rane, Government Pleader for R. Nos. 1 and 4.
Mr. H.L. Patil for R. Nos. 2 and 3.
CORAM: F.I. CORAM: F.I. REBELLO REBELLO &
CORAM: F.I. REBELLO
R.M. SAVANT,JJ. R.M. SAVANT,JJ. R.M. SAVANT,JJ.
DATED: APRIL 30, 2007 DATED: APRIL 30, 2007 DATED: APRIL 30, 2007
ORAL JUDGMENT (Per F.I. Rebello,J.):
. Rule in all the Petitions.
. By consent of the parties, heard forthwith.
2. The challenge in this Petition is to the
decision taken by the Presiding Officer dated
7.4.2007 nominating Sudhakar Badgujar, Mushir
Sayyad, Sharad Kisanrao Koshire as the members of
the Standing Committee. The Petitioner No. 1
belongs to Maharashtra Nav Nirman Sena (MNS) whereas
Petitioner No. 2 belongs to Nationalist Congress
Party (NCP).The Petitioners contend that the elected
candidates of NCP are 17 and considering the total
number of councillors which is 108, the second
respondents ought to have nominated three members
belonging to NCP. On the contrary only two members
have been nominated. Thus the second respondents
ignored the relative strength of the parties as was
required by the provisions of Section 31A of the
Maharashtra Municipal Corporations (Amendment)
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Ordinance, 2007 which hereinafter shall be referred
to as "Ordinance".
. The Petitioners in Writ Petition No. 2587 of
2007 are elected councillors of the Corporation. It
is their case that the Respondents Sudhakar Badgujar
(Independent), Smt. Shinde Jyoti ()BJP) and Shri.
Sayyad Mushir (SP), have been illegally appointed as
members of the Standing Committee in contravention
of the amended Section 31A of the B.P.M.C. Act,
1949.
. Writ Petition No. 2622 of 2007 is filed by the
petitioners who are elected representatives of
Nashik Municipal Corporation.The Petitioner was
elected as independent candidate.The Petitioner was
appointed on the standing committee by the Shiv Sena
a recognised political party against their quota of
seats. It is Petitioners grievance that the
letters/order dated 10.04.2007 addressed to the
Deputy Secretary, Urban Development, Maharashtra
State, is without authority of law and consequently
liable to be set aside. By that order, the
Government has stayed the Resolution No. 1 of
Nashik Municipal Corporation, in its general body
meeting held on 7.11.2007.
3. From the pleadings of the parties, the reliefs
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sought for in the Petition are basically (a)
challenging nomination of the respective councillors
on the ground that nomination was contrary to
Section 31A of the Ordinance and (b) the Resolution
of the State Government suspending the resolution
No. 1, passed by the Municipal Corporation of the
city of Nashik in its general body meeting held on
7.4.2007 as being null and void.
. It may be mentioned that the general body of the
Municipal Corporation of City of Nashik has 108
members on its general body. The Corporation has
various committees of which, one is the standing
committee having 16 members.
4. The Governor of Maharashtra promulgated the
Maharashtra Ordinance No. 2/07 known as Maharashtra
Municipal Corporations ( Amendment) Ordinance, 2007.
The relevant portion of Section 6 of the Ordinance
by which Section 31A has been inserted in B.P.M.C.
Act, 1949, reads as under :
"6. After Section 31 of the Bombay
Provincial Municipal Corporations Act, 1949,
the following section shall be
inserted,namely :
"31A. (1) Notwithstanding anything
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contained in this Act or the rules or
bye-laws made thereunder, i the case of the
following Committees, except where it is
provided by this Act, that the appointment
of a Councillor to any Committee shall be by
virtue of his holding any office,
appointment of Councillors to these
committees, whether in regular or casual
vacancies, shall be made by the Corporation
by nominating Councillors in accordance with
the provisions of sub section (2) :-
(a) Standing Committee; (b) Transport
Committee; (c) Any special Committee
appointed under section 30;
(d) Any ad hoc Committee appointed under
section 31.
(2) In nominating the Councillors on the
Committee, the Corporation shall take into
account the relative strength of the
recognised parties or registered parties or
groups and nominate members, as nearly as
may be, in proportion to the strength of
such parties or groups in the Corporation,
after consulting the Leader of the House,
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the Leader of Opposition and the leader of
each such party or group;
Provided that, nothing contained in this sub
section be construed as preventing the
Corporation from nominating on the
Committee any member not belonging to any
such party or group;
Provided further that, for the purpose of
deciding the relative strength of the
recognised parties or registered parties or
groups under this Act, the recognised
parties or registered parties or groups, or
elected Councillors not belonging to any
such party or group may, notwithstanding
anything contained in the Maharashtra Local
Authority Members Disqualification Act,
1986, within a period of one month from the
date of notification of election results,
form the aghadi or front and, on its
registration, the provisions of the said Act
shall apply to the members of such aghadi or
front, as if it is a registered pre-poll
aghadi or front.
(3) If any question arises as regards the
number of Councillors to be nominated on
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behalf of such party or group, the decision
of the Corporation shall be final."
. At the meeting of the Corporation held for the
purpose of nominating members to the standing
committee, the members nominated were as under :
Shivsena 4
BJP 2
Congress I 3
NCP 2
MNS 2
BSP 1
SP 1
INDEPENDENT 1.
5. The first issue that will have to be decided is
the interpretation of sub section (2) of Section 31A
of the Ordinance with the provisos. A reading of
Sub Section makes it clear that for nominating
councillors on the committee,the Corporation shall
take into account relative strength of the
recognised parties or registered parties or groups
and nominate members as may be in proportion to the
strength of such parties or groups in the
Corporation after consulting the leader of the
house, the leader of the opposition and the Leader
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of each such party or group. In other words, the
representation on the standing committee is in the
nature of proportional representation, proportionate
to the number of seats held in the Corporation. The
relative strength which has to be considered is of
the recognised parties or registered parties or
groups. The groups or Aghadi for the purpose of
this sub section are as set out in the proviso (2).
It is open to the recognised parties or registered
parties or independent councillors, not belonging to
any such party or group, notwithstanding anything
contained in the Maharashtra Local Authority Members
Disqualification Act, 1986 within a period of one
month from the date of notification of election
results to form an aghadi or front and on its
registration, the provision of the said Act shall
apply to the members of such aghadi or front, as if
it is a registered pre poll aghadi or front. In
other words, recognised or registered political
parties can also come together; They can also come
together with independents or independents
themselves can come together and form aghadi or
group as set out therein in which event such Aghadi
or group depending upon their relative strength
would also be entitled to nominate councillors on
the committees. There can be different permutations
and combinations. It is therefore, open to the
various parties as well as independents to come
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together.
. The statement appended to the Ordinance
reads as under :
"3. To ensure that all the recognised
parties and groups in the Corporation are
adequately represented in the Committees
constituted under the Corporations Acts, the
Government considers it expedient to amend
these Acts to provide for the nomination of
members of the Committees in proportion to
the strength of the political parties of
groups in the Corporation. "
. The first Proviso to Section 31.A(2) of the
Ordinance sets out that nothing contained in this
sub section be construed as preventing the
Corporation from nominating on the Committee any
member not belonging to any such party or group. In
other words if the recognised, registered political
party or Aghadi if it cannot be represented on
account of less number of members, their members can
also be nominated on the Committee.
6. With the above background, we may first consider
how the relative strength for being represented
would have to be worked out. As an illustration, if
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the strength of General Assembly is 108 it will have
to be divided by 16 members the strength of the
standing Committee. This will work out to a
quotient of 6.75. Then take the quotient of 6.75
and divide by the number of elected councillors to
get the relative strength of the standing committee.
If it be a fraction, then the fraction of 0.50 or
more will be considered as one, the fraction of 0.49
will be ignored.
. In the instant case, as an illustration take the
case of Shivsena, a recognised party. The number of
councillors is 26. Divided by the quotient of 6.75
it comes to 3.85 Hence, the number of councillors on
the standing committee for Shivsena would be 4.
This will have to be similarly applied in the case
of recognised or registered political parties or
aghadies or front. Applying this formula for the
standing committee of the Municipal Corporation of
the City of Nashik, the recognised/registered
parties like B.S.P., R.P.I., S.P. etc. since they
do not have required quotient of 6.75 would not be
entitled to a seat. Similarly though there are 10
independents as they have not constituted into an
Aghadi, would also not be eligible for any seat
though they together have a quotient to be
represented if it was an as Aghadi or front.
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7. The question before us is how are the remaining
seats after nominating the elected councillors from
the recognized, registered political parties to the
standing committee, be filled in.
. The petitioners contend that a correct reading of
the proviso would be that the seats must be allotted
to the political parties based on the strength of
their membership of the general body who did not
have the necessary quotient. As an illustration,
B.S.P. with three seats would be entitled to one
seat, R.P.I. with two seats would be entitled to 1
seat and other two available seats will have to be
settled between S.P., JP and P.W.P. which parties
have one seat each.
. On the other hand on behalf of the Respondents,
their learned counsel submits that said construction
would be destructive of the language of the proviso.
The Proviso would be an exception to sub section (2)
as it provides for representation on the committees
to any member not belonging to any registered
recognised party or aghadi. It is therefore,
submitted that the Corporation which will have to be
nominate for the balance of the seats, from elected
councillors from parties or independent councillor
not already represented in terms of sub section (2).
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8. In our opinion, the proper construction of sub
section (2) and the two provisos, will be to first
nominate members to the standing committee from
amongst the registered parties, recognised parties
or Aghadi or front which have the necessary quotient
based on the relative strength of their membership
of the general assembly. While so nominating it
will be open by virtue of the proviso for a
political party as long as the provisions of the
Maharashtra Local Authorities Members
Disqualification Act, 1976 are not attracted to
nominate an elected councillor not belonging to the
recognized or registered or group to the standing
committee as set out in sub section (2). In such
situation, as an illustration, Shivsena which was
entitled to three seats could have nominated the
Petitioner in Writ Petition No. 2622 of 2007.
Shri.Sharad Koshire, an independent councillor as
long as the Shiv Sena did not exceed its quota of
seats based on their relative strength. A reading
of the proviso by itself, would make it clear that
the nomination can only be in respect of the parties
or groups not already represented. In other words
any other recognised, registered political party or
Aghadi or front as independent councillor. If the
argument of the Petitioners is to be accepted, then
it can only be from the registered and recognised
political party that nomination can be made. That
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would defeat the very purpose of proviso which is in
the nature of an exception to sub section (2). By
virtue of proviso, in our opinion, the councillor to
be elected can either be an independent or a member
of any other registered or recognised political
party not already represented. This no doubt would
give advantage to the ruling group in the
Corporation to fill in the seats from those who
support them. In our opinion, this is a part of our
democratic process and as such cannot be faulted
with. It is therefore, not possible to accept the
construction as urged on behalf of the Petitioners
to construe the provisos as they have sought to
contend. In our opinion, the language of the
proviso is clear. It is only elected councillors if
a party not already represented on the standing
committee and belonging to a recognised or
registered political party or group or independent
councillor who can be nominated.
9. Considering this construction, the issue may now
be answered. It is open to the Corporation to have
nominated Shri. Sudhakar Badgujar, Mushir Sayyed
and Sharad Koshire as either they were independents
or belonging to parties which were not represented.
The resolution to that extent could not have been
faulted with. However, considering the quotient of
the relative strength of the political parties,
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N.C.P. having 17 seats divided by the quotient,
would be entitled to 2.52 seats in other words 3
seats whereas they were allowed to nominate only for
two seats. To that extent, the suspension of the
resolution by the State Government which is subject
matter of challenge in Writ Petition No. 2622 of
2007 cannot be really faulted. As the
resolution is stayed, the standing committee could
not function.
. In the light of our discussion, all these
Petitions are disposed off by issuing the following
directions :
(1) The action of the State Government suspending
the execution of the resolution dated 10.4.2007, is
upheld.
(2) In view of the fact that the resolution is
upheld, the Corporation of City of Nashik is
directed to commence the process of nomination to
the standing committee afresh/denovo, in the light
of what we have stated above.
. Rule made absolute accordingly. In the
circumstances of the case, there shall be no order
as to costs.
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(R.M. SAVANT,J.) (F.I.REBELLO, J.) (R.M. SAVANT,J.) (F.I.REBELLO, J.) (R.M. SAVANT,J.) (F.I.REBELLO, J.)
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