Full Judgment Text
2019:BHC-AS:12958-DB
(917) wp-479-19+3.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.479 OF 2019
Mr.Siddheshwar Mogalappa Kamurthi )
Age – 59 years, Occ. Business, )
Residing at 316, Gauripada, Bhiwandi, )
District-Thane- 421 302 ) .. Petitioner
Vs
1. The State of Maharashtra )
through the Secretary, )
Urban Development Department, )
Government of Maharashtra, )
Mantralaya, Mumbai – 400 032 )
)
2. The Commissioner, )
Bhiwandi Nizampur City Municipal )
Corporation, Bhiwandi, )
District-Thane, PIN – 421 302 ) .. Respondents
WITH
WRIT PETITION NO.475 OF 2019
Mr.Rahul Chagan Khatke )
Age-28 years, Occ.Business, )
Residing at Flat No.101/102, B-3 Building )
Mansarovar, Bhiwandi, )
District-Thane 421 302 ) .. Petitioner
Vs
1. The State of Maharashtra )
through the Secretary, )
Urban Development Department, )
Government of Maharashtra, )
Mantralaya, Mumbai – 400 032 )
)
2. The Commissioner, )
Bhiwandi Nizampur City Municipal )
Corporation, Bhiwandi, )
District-Thane, PIN – 421 302 ) .. Respondents
1 17
Page of
M.M.Salgaonkar
::: Uploaded on - 24/04/2019 ::: Downloaded on - 31/03/2024 17:08:16 :::
(917) wp-479-19+3.doc
WITH
WRIT PETITION NO.478 OF 2019
Mr.Mohammad Sajid Ashfaq Khan )
Age-44 years, Occ.Business, )
Residing at House No.1294, Noor Palace, )
Opp.Al-Raji Hospital, Nashik Road, )
V.P.Naka, Bhiwandi, )
District-Thane- 421 302 ) .. Petitioner
Vs
1. The State of Maharashtra )
through the Secretary, )
Urban Development Department, )
Government of Maharashtra, )
Mantralaya, Mumbai – 400 032 )
)
2. The Commissioner, )
Bhiwandi Nizampur City Municipal )
Corporation, Bhiwandi, )
District-Thane, PIN – 421 302 ) .. Respondents
WITH
WRIT PETITION NO.480 OF 2019
Mr.Devanand Rupchand Thale )
Age-44 years, Occ. Business, )
Residing at Flat No.405, Chamunda )
Palace, Anjur Phata, Bhiwandi, )
District-Thane-421 302 ) .. Petitioner
Vs
1. The State of Maharashtra )
through the Secretary, )
Urban Development Department, )
Government of Maharashtra, )
Mantralaya, Mumbai – 400 032 )
)
2. The Commissioner, )
Bhiwandi Nizampur City Municipal )
Corporation, Bhiwandi, )
District-Thane, PIN – 421 302 ) .. Respondents
2 17
Page of
M.M.Salgaonkar
::: Uploaded on - 24/04/2019 ::: Downloaded on - 31/03/2024 17:08:16 :::
(917) wp-479-19+3.doc
Dr.Ramdas P. Sabban a/w Mr.Subhash
Gutte and Mr.Pravin Sabban for the
Petitioners.
Mrs.Kirti Kulkarni, AGP for State-
Respondent No.1.
Mr.N.R.Bubna for Respondent No.2.
CORAM :- S. C. DHARMADHIKARI &
B.P.COLABAWALLA, JJ.
DATE :- APRIL 16, 2019
ORAL JUDGMENT :- (Per S.C.Dharmadhikari, J.)
1. By these petitions under Article 226 of the Constitution of
th
India, the petitioners are challenging the order dated 27
November, 2018 suspending them as nominated Councillors of
Bhiwandi Nizampur City Municipal Corporation .
2. The facts and circumstances in each of these petitions being
common and equally the legal issue, we take the facts in Writ
Petition No.479 of 2019 and dispose of all these petitions by this
common judgment and order.
3. We issue Rule in each of these petitions. Respondents waive
service. By consent, Rule is made returnable forthwith.
4. The petitioner says that a resolution was passed by the
th
Municipal Corporation bearing number 76 dated 12 July, 2018
3 17
Page of
M.M.Salgaonkar
::: Uploaded on - 24/04/2019 ::: Downloaded on - 31/03/2024 17:08:16 :::
(917) wp-479-19+3.doc
appointing the petitioner and four others as nominated
Councillors. The nominated Councillors are the petitioner, in the
present petition, Mr.Rahul Khatke, Mohammad Sajid Ashfaq
Khan, Mr.Devanand R. Thale and advocate Harshad Pramod Patil.
5. The petitioner says that he is duly qualified to be nominated
and particularly, fulfills the requirement of Rule 4 of the Rules in
relation to nomination.
6. One Mr.Shyam Mansukhrai Agarwal filed writ petition in
this Court being Writ Petition No.8541 of 2018. This writ petition
was placed before this Court, but no orders were passed and in the
meanwhile, acting on his complaint which alleges that the
nomination contravenes Rule 4 of the Maharashtra Municipal
Corporation (Qualification and Appointment of Nominated
Councillors) Rules 2012, the intervention of the Government was
sought.
7. The Government intervened by the impugned order and the
order recites the backdrop in which the matter was taken up by
the Government. The Government firstly referred to the
requirements of the Rules and then, came to the allegations. The
Government, after referring to the Rules, came to the conclusion
that the nominations of the petitioner in this petition and others
4 17
Page of
M.M.Salgaonkar
::: Uploaded on - 24/04/2019 ::: Downloaded on - 31/03/2024 17:08:16 :::
(917) wp-479-19+3.doc
namely, Mohammad Sajid Ashfaq Khan, Rahul Chagan Khatke
and Devanand Rupchand Thale are contrary to Rule 4 of the
th
Rules as also a Government Circular dated 6 July, 2010. It is
stated that once these Councillors have been nominated contrary
to the Rules, then, Section 451 of the Maharashtra Municipal
Corporations Act, 1949 (hereinafter referred to as “the MMC
Act”) empowers the Government to take the appropriate steps,
including to suspend the resolution. It is in these circumstances,
the impugned order recites that the Municipal Corporation
th
Resolution dated 12 July, 2018 stands suspended. It stands
suspended only to the extent of the Councillors referred above.
8. We have, with the assistance of Mr.Sabban appearing for the
petitioners and learned advocate appearing for the Municipal
Corporation Mr.Bubna as also the learned AGP perused the MMC
Act.
9. The MMC Act is an Act to provide for the establishment of
Municipal Corporations for all larger urban areas except that of
Brihan Mumbai in the State of Maharashtra. Chapter I contains
the preliminary provisions and Section 2 contains the definitions.
In that, the definition of the term “Councillor” is relevant. Section
2 Clause 11 defines the term “Councillor” to mean a person duly
elected as a member of the Corporation and includes a nominated
5 17
Page of
M.M.Salgaonkar
::: Uploaded on - 24/04/2019 ::: Downloaded on - 31/03/2024 17:08:16 :::
(917) wp-479-19+3.doc
Councillor, who shall not have the right to vote in meeting of the
Corporation and the Committees of the Corporation and to get
elected as a Mayor of the Corporation or a Chairperson of any of
the Committees of the Corporation.
10. As far as the constitution and duration of the Municipal
Corporation is concerned, it is evident from the provisions of the
Act that by Section 5, the law permits establishment of a
Municipal Corporation. The minimum number of elected
Councillors is also specified together with the nominated
Councillors. They have to be nominated, provided they have
special knowledge and experience in municipal administration.
They are to be nominated by the Corporation in such manner as
may be prescribed. The word “prescribed” is defined to mean
“prescribed by rules”. It is very clear from a perusal of Sections
11 and 12 that they deal with “disabilities from continuing as
Councillor” and “questions as to disqualification to be determined
by the Judge”. The preceding provision enumerates as to how the
qualifications are incurred. Section 10 enumerates the same. By
Section 16, a remedy of Election Petition is provided and our
attention is invited by Mr.Sabban to a Full Bench judgment of this
Court in case of Anil Vidyarthi Chanderlal Ailani and Anr. Vs
1
State of Maharashtra . This decision of the Full Bench specifically
1 2016(3) Bom.C.R.481
6 17
Page of
M.M.Salgaonkar
::: Uploaded on - 24/04/2019 ::: Downloaded on - 31/03/2024 17:08:16 :::
(917) wp-479-19+3.doc
decides the point or issue as to whether remedy under Section 16
of the MMC Act or under Section 21of the Municipal Council Act is
available to a voter entitled to vote in General Ward Election. The
remedy of election dispute is available to a voter. The argument
in that case and which was duly considered by the Bench revolved
around the interpretation of these very provisions. The Section
has been reproduced and thereafter this Court found that a
narrow or restricted view of the provision cannot be taken.
11. Now, a complaint has been made in relation to the
nominations by an elected Councillor. According to the State,
such elected Councillor, who has made a complaint, has
approached the State Government on the basis that he has no
remedy, save and except to seek the intervention of the State
Government. It is that precise issue which was dealt with by this
Court.
12. The complaint of the nominated Councillors, copy of which
is at page 27 of the paper-book, alleges that the Thane Municipal
Corporation has appointed all the five nominated Councillors
exclusively from Social Welfare work qualification category under
Clause (g) of Rule 4. The present nominated Councillors belong to
Congress opposition party and the allegation in the complaint
shows that this Councillor was in fact and in substance referring
7 17
Page of
M.M.Salgaonkar
::: Uploaded on - 24/04/2019 ::: Downloaded on - 31/03/2024 17:08:16 :::
(917) wp-479-19+3.doc
to their qualifications. Our attention is also invited to various
provisions and it is stated that the provisions enable filing of an
election petition by any person, whose name is included in the
Municipal Election Roll. The Full Bench decided the issue as to
whether such a power, as is conferred by Section 16, can be
invoked where the dispute is about nomination of candidates.
While dealing with such an issue, the Full Bench held as under:-
(917) wp-479-19+3.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.479 OF 2019
Mr.Siddheshwar Mogalappa Kamurthi )
Age – 59 years, Occ. Business, )
Residing at 316, Gauripada, Bhiwandi, )
District-Thane- 421 302 ) .. Petitioner
Vs
1. The State of Maharashtra )
through the Secretary, )
Urban Development Department, )
Government of Maharashtra, )
Mantralaya, Mumbai – 400 032 )
)
2. The Commissioner, )
Bhiwandi Nizampur City Municipal )
Corporation, Bhiwandi, )
District-Thane, PIN – 421 302 ) .. Respondents
WITH
WRIT PETITION NO.475 OF 2019
Mr.Rahul Chagan Khatke )
Age-28 years, Occ.Business, )
Residing at Flat No.101/102, B-3 Building )
Mansarovar, Bhiwandi, )
District-Thane 421 302 ) .. Petitioner
Vs
1. The State of Maharashtra )
through the Secretary, )
Urban Development Department, )
Government of Maharashtra, )
Mantralaya, Mumbai – 400 032 )
)
2. The Commissioner, )
Bhiwandi Nizampur City Municipal )
Corporation, Bhiwandi, )
District-Thane, PIN – 421 302 ) .. Respondents
1 17
Page of
M.M.Salgaonkar
::: Uploaded on - 24/04/2019 ::: Downloaded on - 31/03/2024 17:08:16 :::
(917) wp-479-19+3.doc
WITH
WRIT PETITION NO.478 OF 2019
Mr.Mohammad Sajid Ashfaq Khan )
Age-44 years, Occ.Business, )
Residing at House No.1294, Noor Palace, )
Opp.Al-Raji Hospital, Nashik Road, )
V.P.Naka, Bhiwandi, )
District-Thane- 421 302 ) .. Petitioner
Vs
1. The State of Maharashtra )
through the Secretary, )
Urban Development Department, )
Government of Maharashtra, )
Mantralaya, Mumbai – 400 032 )
)
2. The Commissioner, )
Bhiwandi Nizampur City Municipal )
Corporation, Bhiwandi, )
District-Thane, PIN – 421 302 ) .. Respondents
WITH
WRIT PETITION NO.480 OF 2019
Mr.Devanand Rupchand Thale )
Age-44 years, Occ. Business, )
Residing at Flat No.405, Chamunda )
Palace, Anjur Phata, Bhiwandi, )
District-Thane-421 302 ) .. Petitioner
Vs
1. The State of Maharashtra )
through the Secretary, )
Urban Development Department, )
Government of Maharashtra, )
Mantralaya, Mumbai – 400 032 )
)
2. The Commissioner, )
Bhiwandi Nizampur City Municipal )
Corporation, Bhiwandi, )
District-Thane, PIN – 421 302 ) .. Respondents
2 17
Page of
M.M.Salgaonkar
::: Uploaded on - 24/04/2019 ::: Downloaded on - 31/03/2024 17:08:16 :::
(917) wp-479-19+3.doc
Dr.Ramdas P. Sabban a/w Mr.Subhash
Gutte and Mr.Pravin Sabban for the
Petitioners.
Mrs.Kirti Kulkarni, AGP for State-
Respondent No.1.
Mr.N.R.Bubna for Respondent No.2.
CORAM :- S. C. DHARMADHIKARI &
B.P.COLABAWALLA, JJ.
DATE :- APRIL 16, 2019
ORAL JUDGMENT :- (Per S.C.Dharmadhikari, J.)
1. By these petitions under Article 226 of the Constitution of
th
India, the petitioners are challenging the order dated 27
November, 2018 suspending them as nominated Councillors of
Bhiwandi Nizampur City Municipal Corporation .
2. The facts and circumstances in each of these petitions being
common and equally the legal issue, we take the facts in Writ
Petition No.479 of 2019 and dispose of all these petitions by this
common judgment and order.
3. We issue Rule in each of these petitions. Respondents waive
service. By consent, Rule is made returnable forthwith.
4. The petitioner says that a resolution was passed by the
th
Municipal Corporation bearing number 76 dated 12 July, 2018
3 17
Page of
M.M.Salgaonkar
::: Uploaded on - 24/04/2019 ::: Downloaded on - 31/03/2024 17:08:16 :::
(917) wp-479-19+3.doc
appointing the petitioner and four others as nominated
Councillors. The nominated Councillors are the petitioner, in the
present petition, Mr.Rahul Khatke, Mohammad Sajid Ashfaq
Khan, Mr.Devanand R. Thale and advocate Harshad Pramod Patil.
5. The petitioner says that he is duly qualified to be nominated
and particularly, fulfills the requirement of Rule 4 of the Rules in
relation to nomination.
6. One Mr.Shyam Mansukhrai Agarwal filed writ petition in
this Court being Writ Petition No.8541 of 2018. This writ petition
was placed before this Court, but no orders were passed and in the
meanwhile, acting on his complaint which alleges that the
nomination contravenes Rule 4 of the Maharashtra Municipal
Corporation (Qualification and Appointment of Nominated
Councillors) Rules 2012, the intervention of the Government was
sought.
7. The Government intervened by the impugned order and the
order recites the backdrop in which the matter was taken up by
the Government. The Government firstly referred to the
requirements of the Rules and then, came to the allegations. The
Government, after referring to the Rules, came to the conclusion
that the nominations of the petitioner in this petition and others
4 17
Page of
M.M.Salgaonkar
::: Uploaded on - 24/04/2019 ::: Downloaded on - 31/03/2024 17:08:16 :::
(917) wp-479-19+3.doc
namely, Mohammad Sajid Ashfaq Khan, Rahul Chagan Khatke
and Devanand Rupchand Thale are contrary to Rule 4 of the
th
Rules as also a Government Circular dated 6 July, 2010. It is
stated that once these Councillors have been nominated contrary
to the Rules, then, Section 451 of the Maharashtra Municipal
Corporations Act, 1949 (hereinafter referred to as “the MMC
Act”) empowers the Government to take the appropriate steps,
including to suspend the resolution. It is in these circumstances,
the impugned order recites that the Municipal Corporation
th
Resolution dated 12 July, 2018 stands suspended. It stands
suspended only to the extent of the Councillors referred above.
8. We have, with the assistance of Mr.Sabban appearing for the
petitioners and learned advocate appearing for the Municipal
Corporation Mr.Bubna as also the learned AGP perused the MMC
Act.
9. The MMC Act is an Act to provide for the establishment of
Municipal Corporations for all larger urban areas except that of
Brihan Mumbai in the State of Maharashtra. Chapter I contains
the preliminary provisions and Section 2 contains the definitions.
In that, the definition of the term “Councillor” is relevant. Section
2 Clause 11 defines the term “Councillor” to mean a person duly
elected as a member of the Corporation and includes a nominated
5 17
Page of
M.M.Salgaonkar
::: Uploaded on - 24/04/2019 ::: Downloaded on - 31/03/2024 17:08:16 :::
(917) wp-479-19+3.doc
Councillor, who shall not have the right to vote in meeting of the
Corporation and the Committees of the Corporation and to get
elected as a Mayor of the Corporation or a Chairperson of any of
the Committees of the Corporation.
10. As far as the constitution and duration of the Municipal
Corporation is concerned, it is evident from the provisions of the
Act that by Section 5, the law permits establishment of a
Municipal Corporation. The minimum number of elected
Councillors is also specified together with the nominated
Councillors. They have to be nominated, provided they have
special knowledge and experience in municipal administration.
They are to be nominated by the Corporation in such manner as
may be prescribed. The word “prescribed” is defined to mean
“prescribed by rules”. It is very clear from a perusal of Sections
11 and 12 that they deal with “disabilities from continuing as
Councillor” and “questions as to disqualification to be determined
by the Judge”. The preceding provision enumerates as to how the
qualifications are incurred. Section 10 enumerates the same. By
Section 16, a remedy of Election Petition is provided and our
attention is invited by Mr.Sabban to a Full Bench judgment of this
Court in case of Anil Vidyarthi Chanderlal Ailani and Anr. Vs
1
State of Maharashtra . This decision of the Full Bench specifically
1 2016(3) Bom.C.R.481
6 17
Page of
M.M.Salgaonkar
::: Uploaded on - 24/04/2019 ::: Downloaded on - 31/03/2024 17:08:16 :::
(917) wp-479-19+3.doc
decides the point or issue as to whether remedy under Section 16
of the MMC Act or under Section 21of the Municipal Council Act is
available to a voter entitled to vote in General Ward Election. The
remedy of election dispute is available to a voter. The argument
in that case and which was duly considered by the Bench revolved
around the interpretation of these very provisions. The Section
has been reproduced and thereafter this Court found that a
narrow or restricted view of the provision cannot be taken.
11. Now, a complaint has been made in relation to the
nominations by an elected Councillor. According to the State,
such elected Councillor, who has made a complaint, has
approached the State Government on the basis that he has no
remedy, save and except to seek the intervention of the State
Government. It is that precise issue which was dealt with by this
Court.
12. The complaint of the nominated Councillors, copy of which
is at page 27 of the paper-book, alleges that the Thane Municipal
Corporation has appointed all the five nominated Councillors
exclusively from Social Welfare work qualification category under
Clause (g) of Rule 4. The present nominated Councillors belong to
Congress opposition party and the allegation in the complaint
shows that this Councillor was in fact and in substance referring
7 17
Page of
M.M.Salgaonkar
::: Uploaded on - 24/04/2019 ::: Downloaded on - 31/03/2024 17:08:16 :::
(917) wp-479-19+3.doc
to their qualifications. Our attention is also invited to various
provisions and it is stated that the provisions enable filing of an
election petition by any person, whose name is included in the
Municipal Election Roll. The Full Bench decided the issue as to
whether such a power, as is conferred by Section 16, can be
invoked where the dispute is about nomination of candidates.
While dealing with such an issue, the Full Bench held as under:-
| “ | 59) | We are, in this reference, concerned with only the | |||
|---|---|---|---|---|---|
| meaning to be assigned to the term “Election Petition” and | |||||
| whether it can be presented to challenge the nomination of | |||||
| Councillors. If the section provides the remedy to question | |||||
| the election, then, to make a distinction as is sought between | |||||
| “election” and “nomination” would run counter to the object | |||||
| and purpose of the Act. The Act envisages a Municipal | |||||
| Corporation comprising of both, the elected and the | |||||
| nominated Councillors. If that is how the Corporation is | |||||
| understood as a body or a legal entity, then, to hold that only | |||||
| such of the Councillors as are elected at a general election | |||||
| would have to face a challenge to their elections but the | |||||
| nominated Councillors are out of the purview of section 16 | |||||
| would mean plural remedies created for challenging an | |||||
| identical process. |
| 60) | The word “election” is not defined in the Act and | ||||||
|---|---|---|---|---|---|---|---|
| the Rules. The words such as these would therefore have to | |||||||
| be given their ordinary and plain meaning. The words | |||||||
| “election” and “nomination” have been understood as “to | |||||||
| choose, to pick out, to select from a number or to make a | |||||||
| choice of”. It also means to caste vote for the purpose of | |||||||
| selecting members of any legislative, municipal or other | |||||||
| authority of whatever character. Thus, it would have to be | |||||||
| construed in the context and the circumstances in which the | |||||||
| process is required to be undertaken. It is well settled rule of | |||||||
| interpretation that a word not defined in a statute its meaning | |||||||
| has to be gathered from the context in which it has been used | |||||||
| [see | AIR 1995 SC 1620 | (Regnl. Executive Kerala F. W. F. | |||||
| Board vs. M/s. Fancy Food, para 8 at page 1623) | ] |
| 61) | It is in this sense that this word is employed and | |||
|---|---|---|---|---|
| reliance therefore is rightly placed on the judgment of Hon’ble | ||||
| Supreme Court of India in the case of | Dinesh Prasad Yadav vs. |
8 17
Page of
M.M.Salgaonkar
::: Uploaded on - 24/04/2019 ::: Downloaded on - 31/03/2024 17:08:16 :::
(917) wp-479-19+3.doc
| State of Bihar and Others | reported in | 1995 (Supp) 1 SCC | ||
|---|---|---|---|---|
| 340 | . In the context of a similar challenge but with a marginal | |||
| difference, in that, the State Government had a right to | ||||
| nominate on the managing committee not more than two | ||||
| persons, one of whom shall be a Government servant, the | ||||
| Hon’ble Supreme Court considered the argument that the | ||||
| term of office of this managing committee would have to be | ||||
| counted from the beginning of the co-operative year, in which | ||||
| election by ballot is held or it is to be counted from when the | ||||
| nominations are made by the State Government. The Hon’ble | ||||
| Supreme Court, in paras 7, 8 and 9 of this decision, held as | ||||
| under:- |
| “ | 7. | The provision of the Act and the Rules, quoted | ||
|---|---|---|---|---|
| above, clearly indicate that the scheme of the Act | ||||
| gives wide powers to the State Government to | ||||
| control those societies in which it has considerably | ||||
| contributed towards the share capital. The State | ||||
| Government can nominate even up to two-third of | ||||
| the total members of the Managing Committee | ||||
| including the Chairman. It would, therefore, be in | ||||
| tune with the scheme of the Act to hold that the | ||||
| Managing Committee cannot assume office till the | ||||
| time the nominations are made by the State | ||||
| Government. Proviso to Rule 22(2) of the Rules | ||||
| rightly provides that the Managing Committee shall | ||||
| not be treated as complete unless the members | ||||
| thereof have been duly elected and/or nominated by | ||||
| the authority empowered to do so under the Act, | ||||
| Rules and Bye-laws of the society. |
| 8. | The expression 'election' has not been | |||
|---|---|---|---|---|
| defined under the Act. In the absence of any | ||||
| definition by the legislature we have to follow the | ||||
| ordinary meaning given to the said expression. | ||||
| Collins English Dictionary defines 'election' as | ||||
| under: |
| “The selection by vote of a person or persons | ||
|---|---|---|
| from among candidates for a position, esp. a political | ||
| office. The act or an instance of choosing.” |
| Webster's Comprehensive Dictionary, | ||
|---|---|---|
| International Edn., gives the following meaning to | ||
| the expression 'election'. |
| “The selection of a person or persons for office | ||
|---|---|---|
| as by ballot. A choice, as between alternatives, | ||
| choice in general.” |
9 17
Page of
M.M.Salgaonkar
::: Uploaded on - 24/04/2019 ::: Downloaded on - 31/03/2024 17:08:16 :::
(917) wp-479-19+3.doc
| 9. | The expression 'election', therefore, | ||||
|---|---|---|---|---|---|
| means selection of a person by vote or even | |||||
| otherwise. When a person is nominated by way of | |||||
| selection on the basis of a given criteria from | |||||
| amongst several persons, then in the broader sense | |||||
| he is elected to the office. We are of the view that | |||||
| the expression 'elections', in the first proviso to | |||||
| Section 14(1) of the Act, has been used in the | |||||
| broader sense. It includes election by ballot as well | |||||
| as the choice by nomination. This interpretation | |||||
| would make Rule 22(2) of the Rules workable. | |||||
| Section 14(2) of the Act vests the management of a | |||||
| registered society in a Managing Committee | |||||
| constituted in accordance with the Rules. Section | |||||
| 14(4) further provides that even up to two-third | |||||
| members of the Managing Committee can be | |||||
| nominated. Sub-section (8) of Section 14 further | |||||
| imposes bar on the members of the Managing | |||||
| Committee for re-election after they have held two | |||||
| consecutive terms. Rule 22(2) read with Section | |||||
| 14(2) of the Act makes it abundantly clear that | |||||
| constitution the Managing Committee is to be | |||||
| treated complete only when the elections by ballot | |||||
| as well as the nominations are finalised. Even | |||||
| otherwise, to fulfill the avowed object of the Act and | |||||
| to encourage and promote the cooperative | |||||
| movement in the State, it is necessary that the | |||||
| Managing Committee as constituted under Rule | |||||
| 22(2) of the Rules should be given its full tenure of | |||||
| three cooperative years. Having provided for three | |||||
| years' term in office to the Managing Committee of a | |||||
| society, it could not be the intention of the | |||||
| legislature to leave it to the State Government to | |||||
| reduce the same to as short a period as three weeks, | |||||
| which would be a mockery. We, therefore, hold that | |||||
| in the first proviso to Section 14(1) the expression | |||||
| “the cooperative year in which elections are held” | |||||
| means not only the elections by way of ballot, but | |||||
| also the nominations under the Act. The net result | |||||
| in that the term of the Managing Committee under | |||||
| the Act and the Rule is to commence from the | |||||
| beginning of the cooperative year in which the | |||||
| nominations by the State Government are | |||||
| completed and the Managing Committee is | |||||
| constituted in terms of Rule 22(2) of the Rules.” |
| 62) | It is therefore clear that when the scheme of the | ||
|---|---|---|---|
| Act and Rules is understood as denoting that the Corporation | |||
| shall consist of Councillors elected directly at Ward election |
10 17
Page of
M.M.Salgaonkar
::: Uploaded on - 24/04/2019 ::: Downloaded on - 31/03/2024 17:08:16 :::
(917) wp-479-19+3.doc
| and nominated by it, then, it would not be proper to divide the | |
|---|---|
| exercise and then hold whether it is “election” or | |
| “nomination”. As urged by the learned Senior Counsel Mr. | |
| Gorwadkar, an election means voting as set out in section 8A | |
| of the MMC Act. That manner of voting would decide whether | |
| it is a election else the process cannot be termed as such | |
| would be really missing the point. The act of electing can be | |
| held to be performed after the vote is caste. It may be by | |
| ballot meaning inserting a paper marking one's choice in the | |
| box or by pressing the button against a name in the electronic | |
| machine. |
| 63) | The word “nomination” also is assigned the same | |||
|---|---|---|---|---|
| meaning, namely, “to select the candidate to be voted for a | ||||
| public office or a member of legislative or representative | ||||
| assembly, to name or to recommend for confirmation”. One | ||||
| nominates a person in order to propose him or appoint him to | ||||
| an office and that could be as understood in the Law Lexioan | ||||
| by appointment or it could be to propose a person for election | ||||
| or appointment. |
| 64) | Once we understand that it is the Corporation as | |||
|---|---|---|---|---|
| a whole which considers the recommendations of the | ||||
| Commissioner and then takes a decision on nominations of | ||||
| the candidates, then, the process can be equated with an | ||||
| election. Albeit the mode may be by voting in the manner | ||||
| understood above. |
| 65) | That such a decision of the Corporation is also | ||
|---|---|---|---|
| capable of being challenged by an Election Petition is | |||
| therefore evident. One cannot construe section 16(1) in the | |||
| backdrop of the locus of a person challenging the elections. | |||
| Advisedly, the words employed in section 16 are that if the | |||
| qualification of any person declared to be elected a Councillor | |||
| is disputed or if the validity of the election is questioned for | |||
| the reasons indicated in sub-section (1), then, any person | |||
| enrolled in the municipal election roll can submit an | |||
| application to the Judge for determination of dispute or | |||
| question. Thus, the dispute is about the qualification of any | |||
| person declared to be elected as a Councillor, whereas the | |||
| question is with regard to the validity of any election. On both | |||
| counts, the application can be presented by the person | |||
| enrolled in the municipal election roll. Equally, by sub-section | |||
| (2), a discretion is given to the State Election Commissioner | |||
| to make an application within the meaning of that sub-section. | |||
| The locus of the person entitled to make the application is not | |||
| decisive or conclusive and that cannot control the | |||
| interpretation and construction of sub-section (1). If the | |||
| Election Petition can be presented by any person enrolled in |
11 17
Page of
M.M.Salgaonkar
::: Uploaded on - 24/04/2019 ::: Downloaded on - 31/03/2024 17:08:16 :::
(917) wp-479-19+3.doc
| the municipal election roll, then, the elected Councillors fulfill | |
|---|---|
| that criteria. To be elected as Councillors, they have to fill a | |
| nomination form. That can be filled in only by those whose | |
| name appear in the municipal election roll. Sub-section (1) of | |
| section 9 sets out this condition. Even a voter or a person | |
| whose name appears in the municipal election roll as such can | |
| submit that application to the Judge. Such a person may not | |
| be an elected Councillor. Equally, a elected Councillor can also | |
| submit above referred application. Both can be equally | |
| interested in raising the dispute or in questioning the validity | |
| of election. If a person who has not been nominated despite | |
| being recommended by the Commissioner desires to question | |
| the validity of the nomination process or the qualification of | |
| any person nominated, he can also submit the application | |
| within the meaning of sub-section (1) of section 16 of the | |
| MMC Act, provided his name is enrolled in the municipal | |
| election roll. The argument that a person qualified for | |
| nomination or eligible for being nominated need not be one | |
| whose name is reflected in the municipal roll and therefore, | |
| he may as well question the process and therefore, an addition | |
| is being made in sub-section (1) of section 16, particularly on | |
| the issue of locus to submit an application, is without any | |
| merit. This person may be falling in the category of a | |
| candidate at an election, but if he is not enrolled in the | |
| municipal election roll, he will not be able to submit that | |
| application. That does not mean that the locus or the | |
| eligibility to submit the application would govern the | |
| construction or interpretation of the provision. It is one thing | |
| to say that the locus of a person to maintain or bring an action | |
| would not be a decisive or conclusive factor in determining | |
| the availability of or right to avail of a remedy and quite | |
| another to grant locus or right to avail of that remedy when it | |
| is expressly not in the statute. The latter one would not be a | |
| permissible exercise. The former is only a issue of | |
| construction of the statutory provision conferring a right to | |
| avail of a remedy and hence permissible. It is aimed at giving | |
| meaning to the words and expressions already existing in the | |
| statute.” |
Now all that remains for our consideration is whether the
13.
State Government could at all have intervened and to suspend the
nominated Councillors. Chapter XXVIII of the MMC Act is titled
as “Control”. Section 448 empowers the State Government to
require performance of duties in default of any municipal
12 17
Page of
M.M.Salgaonkar
::: Uploaded on - 24/04/2019 ::: Downloaded on - 31/03/2024 17:08:16 :::
(917) wp-479-19+3.doc
authority. The expenses of measures enforced under Section 448
are to be recovered in terms of Section 449 by the procedure set
out in Section 449. Section 450 empowers the State Government
to call for extracts from proceedings etc. and Section 450A
empowers the State Government to issue instructions or
directions. Then comes Section 451 and it reads as under :-
“451. (1) If the State Government is of opinion that the
execution of any resolution or order of the Corporation or
any other authority or that the doing of any act which is
about to be done or is being done by or on behalf of the
Corporation of such authority is in contravention of or in
excess of the powers conferred by or under this Act or any
other law for the time being force, or is likely to lead to a
breach of the peace or to cause injury or annoyance to the
public or any class or body of persons, or is likely to lead to
abuse or misuse of or to cause waste of municipal funds
against the interest of the public or is likely to be against the
financial interest of the Corporation or against larger public
interest the State Government may, by order in writing,
suspend the execution of such resolution or order or prohibit
the doing of any such act, for such period or periods as it may
specify therein. A copy of such order shall be sent forthwith
by the State Government to the Corporation and to the
Commissioner or the Transport Manager.
(2) On receipt of a copy of the order as aforesaid, the
Corporation or Commissioner or Transport Manager may, if
it or he thinks fit, make a representation to the State
Government against the said order.
(3) The State Government may, after considering any
representation received from the Corporation or
Commissioner or Transport Manager and where no such
representation is received within a period of thirty days,
either cancel, modify or confirm the order by it under sub-
section (1) or take such other action in respect of the matter
as may in its opinion be just or expedient, having regard to
all the circumstances of the case. Where any order made
under sub-section (1) is confirmed the State Government
may direct that the resolution or order of the Corporation or
its authority in respect of which suspension order was made
under sub-section (1) shall be deemed to be rescinded.
13 17
Page of
M.M.Salgaonkar
::: Uploaded on - 24/04/2019 ::: Downloaded on - 31/03/2024 17:08:16 :::
(917) wp-479-19+3.doc
(4) Where any order is made by the State Government under
sub-section (3), it shall be the duty of every Councillor and
the Corporation and any other authority or officer concerned
to comply with such order.”
14. A bare perusal of sub-section (1) of Section 451 shows that
if the State Government has to form an opinion that the execution
of any resolution or order of the Corporation or any other
authority or that the doing of any act which is about to be done or
is being done by or on behalf of the Corporation of such authority
is in contravention of or in excess of the powers conferred by or
under this Act or any other law for the time being in force, or is
likely to lead to a breach of the peace or to cause injury or
annoyance to the public or any class or body of persons, or is
likely to lead to abuse or misuse of or to cause waste of municipal
funds against the interest of the public or is likely to be against
the financial interest of the Corporation or against larger public
interest, the State Government may, by order in writing, suspend
the execution of such resolution or order or prohibit the doing of
any such act.
15. The impugned order proceeds to state that the nomination
of the municipal Councillors is suspended, but the State
Government has not recorded any specific reason. It has only
stated in the impugned order that the circumstances brought on
14 17
Page of
M.M.Salgaonkar
::: Uploaded on - 24/04/2019 ::: Downloaded on - 31/03/2024 17:08:16 :::
(917) wp-479-19+3.doc
record by the Municipal Corporation denote that the Rules
enabling the nomination have not been followed. By itself, this is
not enough to interfere with the resolution of the Municipal
Corporation. Pertinently, all nominations are not suspended or
th
the resolution dated 12 July, 2018 has not been suspended in its
th
entirety. If the suspension of resolution dated 12 July, 2018 is
th
directed by the impugned order dated 27 November, 2018, then,
it should have also been recorded as to why these nominated
Councillors were allowed to continue till the date the State
Government passed the impugned order. In other words, such
order of suspension is required to be made even after five months
of the nomination should also have been indicated with clarity.
Thus, on the point of delay and on merits as well the impugned
order does not accord with the Section. To our mind, therefore,
neither the order subscribes to Section 451(1) of the MMC Act
nor in the facts and circumstances peculiar to this case, the State
Government could have entertained the complaint and obliged the
elected Councillor, who is a member of the Bhartiya Janata Party.
16. It is evident that the Bhartiya Janata Party, together with
Shivsena party, its ally are the parties in power in the State. The
State Government has exercised the powers under Section 451(1)
at the instance of a person, who is a elected Councillor belonging
15 17
Page of
M.M.Salgaonkar
::: Uploaded on - 24/04/2019 ::: Downloaded on - 31/03/2024 17:08:16 :::
(917) wp-479-19+3.doc
to the Bhartiya Janata Party. It is not as if he is remedyless nor
the impugned order proceeds on the footing that he has no other
remedy. If he is aggrieved by the nominations, then, in terms of
the law, he could have availed of all the legal remedies and,
particularly, those referred by us. There was no occasion for the
State Government to have intervened in a pure political dispute.
The intervention by the State Government not only contravenes
the mandate of Section 451, but also interferes with a democratic
process. That process had run its course. There was no occasion
for the State Government to intervene in such a process after it
has run its course completely and only to oblige a political
opponent of these nominated Councillors. In such circumstances,
we are of the firm opinion that the impugned order is ex-facie
illegal, arbitrary and deserves to be set aside. It is vitiated by a
colourable exercise of power.
17. Each of these writ petitions, therefore, succeed. Rule in
each of these petitions is made absolute in terms of prayer clause
(a).
18. We, however, clarify that this Court has not expressed any
opinion on the merits of the controversy. Our order shall not
prevent the complainant from taking recourse to law. In the
event, he takes recourse to any of the legal remedies, then, such
16 17
Page of
M.M.Salgaonkar
::: Uploaded on - 24/04/2019 ::: Downloaded on - 31/03/2024 17:08:16 :::
(917) wp-479-19+3.doc
proceedings be decided on their own merits and in accordance
with law uninfluenced by the present order. All contentions, in
relation to the qualifications of the nominated Councilors, of
either side are kept open.
19. Mr.Sabban submits that this is a fit case for imposition of
costs. We do not think that we should impose costs for what we
have observed ought to serve as a warning to the State
Government and it should refrain from exercising its power of
control in the matters of present nature. It is only because of the
persuasion of the learned AGP, we do not impose the costs. There
will be no order as to costs.
(B.P.COLABAWALLA, J.) (S.C.DHARMADHIKARI, J.)
17 17
Page of
M.M.Salgaonkar
::: Uploaded on - 24/04/2019 ::: Downloaded on - 31/03/2024 17:08:16 :::