SH.AJAY RAMDAS RAMTEKE vs. MAHANAGAR SUDHAR SAMITI, AKOLA

Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.1388 OF 2015 (Arising out of S.L.P. (Civil) No. 28853 of 2013) Ajay Ramdas Ramteke and Anr. … Appellants Versus Mahanagar Sudhar Samiti, Akola & Ors. …Respondents J U D G M E N T Prafulla C. Pant, J. Leave granted. JUDGMENT 2. The question involved in this appeal is whether respondent no. 1 - Mahanagar Sudhar Samiti, Akola , an “aghadi ” or “front ” formed by some of the elected councillors of respondent no. 5 - Akola Municipal Corporation in March, 2013, without its registration under Page 1 2 second proviso to Section 31A(2) of the Maharashtra Municipal Corporations Act, 1949 (for short “1949 Act”) stood registered and recognized as a party or group for

petition filed by respondent no.1 before the High Court challenging the Standing Committee constituted under the 1949 Act was maintainable. 3. Brief facts of the case are that elections were held for Akola Municipal Corporation in February, 2012, wherein 73 councillors were elected to the House. From amongst elected members, initially 23 members, and thereafter in all 26 members claimed to have formed an JUDGMENT “aghadi” (group of persons) with the name “Mahanagar Sudhar Samiti ”. On 5.3.2012, within one month of the election, leader of the said group submitted an application before the Divisional Commissioner for its registration under second proviso to Section 31A(2) of the 1949 Act. It appears that in the meantime there was a controversy as to whether two of the elected members projected to be Page 2 3 part of the group were actually members of the aghadi (respondent no.1) or another group Akola Vikas Mahaaghadi (present respondent no.6). The said issue

dated 08.05.2012 passed in writ petition no. 1426 of 2012 holding that the aforesaid two members were not part of either respondent no. 1 or 6. Thereafter, the Divisional Commissioner passed a detailed order on 28.08.2012 whereby the application for registration of respondent no.1 as aghadi filed in March 2012 was rejected. Said order was not challenged by any party. However, meanwhile Resolution dated 29.04.2013 was passed by the Akola Municipal Corporation whereby the present JUDGMENT appellants and six others (present respondent nos. 9 to 14) were nominated in the Standing Committee as members thereof. The Resolution was challenged by respondent nos. 1 to 3 by filing a Writ Petition no. 2571 of 2013 before the Nagpur Bench of the High Court of Judicature at Bombay. A preliminary objection was raised on behalf of Mayor (respondent no. 4) before the High Page 3 4 Court that the writ petition was not maintainable. Defending the Resolution dated 29.04.2013, it was stated that there was no illegality in nominating the members

constituted vide Resolution dated 29.04.2013. 4. After hearing the parties, the High Court took the view that since the application for registration, in the register maintained in Form IV as per Rule 5 of Maharashtra Local Authority Members' Disqualification Rules, 1987 (for short “1987 Rules”), was made within time, the respondent no.1 should have been treated as separate aghadi , and as such non-inclusion of names of its members for proportional representation in the Standing JUDGMENT Committee invalidates the Resolution dated 29.04.2013. Accordingly, the High Court quashed the Resolution dated 29.04.2013 and allowed the writ petition. 5. Aggrieved, by the above order dated 14.08.2013, passed by the High Court, in Writ Petition No. 2571 of 2013, this appeal is filed by the appellants who were Page 4 5 respondent nos. 6 and 7 before the High Court, through special leave.

filed by respondent nos. 1 to 3 which was not maintainable. It is stated that the High Court ignored the fact that vide order dated 28.08.2012, the Divisional Commissioner had rejected the application for registration moved by respondent No. 1 as separate aghadi . It is further pleaded that registration of post-poll group or alliance was mandatory under Section 31A of 1949 Act read with 1987 Rules. It is argued before us that unregistered aghadi is not an aghadi in the eyes of law, JUDGMENT and as such, neither the same could have been recognized for its representation in the Standing Committee nor maintain the writ petition in the High Court. 7. On the other hand, on behalf of the respondent nos. 1 to 3, who were the writ petitioners before the High Page 5 6 Court, contended that since there was no rule or procedure prescribed for registration as such their only duty was to intimate the Divisional Commissioner under

the rest was the ministerial work to be completed. The contesting respondent nos. 1 to 3 placed their reliance in the case of Jeevan Chandrabhan Idnani and Another vs. Divisional Commissioner, Konkar Bhawan and others (2012) 2 SCC 794. 8. Before further discussion, we think it just and proper to mention as to what is the meaning of word ‘Aghadi’ , and for what purpose it is constituted by the councillors of Corporation. Word ‘ aghadi’ is defined in JUDGMENT Clause (a) of Section 2 of Maharashtra Local Authority Members' Disqualification Act, 1986 (for short “1986 Act”) which reads as under: “2. In this Act unless the context otherwise requires,- (a) “aghadi” or “front” means a group of persons who have formed themselves into party for the purpose of setting up candidates for election to a local authority.” Page 6 7 9. Object of allowing elected members to form an aghadi as post-poll alliance is to give proportional representation of its members to the various standing

Corporations. 10. Second proviso to sub-section (2) of Section 31A of 1949 Act allows the concillors to form an aghadi after the election to a Municipal Corporation. Section 31A reads as under: “31A. Appointment by nomination on Committees to be by proportional representation – (1) Notwithstanding anything contained in this Act or the rules or bye-laws made thereunder, in 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):- JUDGMENT (a) Standing Committee; (b) Transport Committee; (c) Any special Committee appointed under section 30; (d) Any ad hoc Committee appointed under section 31” Page 7 8

Provided that, the relative strength of the recognized parties or registered parties or groups or aghadi or front shall be calculated by first dividing the total number of Councillors by the total strength of members of the Committee. The number of Councillors of the recognized parties or registered parties or groups or aghadi or front shall be further divided by the quotient of this division. The figures so arrived at shall be the relative strength of the respective recognized parties or registered parties or groups or aghadi or front. The seats shall be allotted to the recognized parties or registered parties or groups or aghadi or front by first considering the whole number of their respective relative strength so ascertained. After allotting the seats in this manner, if one or more seats remain to be allotted, the same shall be allotted one each to the recognized parties or registered parties or groups or aghadi or front in the descending order of the fraction number in the respective relative strength starting from the highest fraction number in the relative strength, till all the seats are allotted: JUDGMENT Provided further that, for the purpose of deciding the relative strength of the recognized parties or registered parties or groups under this Act, the recognized parties or registered parties or groups, or elected Councillors not belonging to any such party or group may, notwithstanding anything contained in the Maharashtra Page 8 9

(3) If any question arises as regards the number of Councillors to be nominated on behalf of such party or group, the decision of the Corporation shall be final”. 11. In Jeevan Chandrabhan Idnani (supra), this Court has made following observations interpreting the second proviso of sub-section 2 of Section 31A: “26. The second proviso to sub-section (2) of Section 31-A enables the formation of an aghadi or front within a period of one month from the date of notification of the election results. Such an aghadi or front can be formed by various possible combinations of Councillors belonging to either two or more registered parties or recognised parties or independent Councillors. The proviso categorically stipulates that such a formation of an “aghadi” or “front” is possible notwithstanding anything contained in the Disqualification Act. Because an “aghadi” or “front”, as defined under the Disqualification Act, clearly, can only be the combination of a group of persons forming themselves into a party prior to the election for setting up candidates at an election to a local authority but not a combination of political parties or political parties and individuals. JUDGMENT 27. Therefore, the second proviso to Section 31-A(2) of the Municipal Corporations Act which is a later expression of the will of the sovereign, in contrast to the stipulation as contained under Sections 2( a ) and 3(2) of Page 9 10

28. Once such an aghadi is registered by a legal fiction created under the proviso, such an aghadi is treated as if it were a pre-poll aghadi or front. The proviso further declares that once such a registration is made, the provisions of the Disqualification Act apply to the members of such post-poll aghadi. We do not propose to examine the legal consequences of such a declaration as it appears from the record that a complaint has already been lodged against Respondents 6 to 13 herein under the provisions of the Disqualification Act. The limited question before us is whether the first respondent was legally right in registering an aghadi or front formed after the lapse of one month from the date of the notification of the election results. JUDGMENT XXX XXX XXX XXX 30. In substance, the High Court held that the interpretation of Section 31-A depends upon the tenor and scheme of the subordinate legislation. Such a principle of statutory construction is not normally resorted to save in the case of interpretation of an old enactment where the language is ambiguous. We are conscious of the fact that there is some difference of opinion on this principle but for the purpose of the present case we do not think it necessary to examine the proposition in detail as in our opinion the language Page 10 11

31. Such variations of the relative strength of aghadis would have various legal consequences provided under the Disqualification Act. Depending upon the fact situation in a given case, the variation might result in the consequence of rendering some of the Councillors disqualified for continuing as Councillors. Section 31-A of the Municipal Corporation Act only enables the formation of an aghadi or front within a month from the date of the notification of the results of the election to the Municipal Corporation. To permit recognition of variations in the relative strength of the political parties beyond the abovementioned period of one month would be plainly in violation of the language of the second proviso to Section 31-A.” 12. We have already discussed that an aghadi formed after election is required to be registered as provided in JUDGMENT sub-section (2) of Section 31A of 1940 Act. Rule 5 of 1987 Rules, which relates to maintaining a register of information as to councilors and members, provides as under: “Register of information as to councilors or members.- (1) The Commissioner in the case of a councilor of a Municipal Corporation and the Collector, in the case of any other councilor or member, shall maintain in Form IV, a register based on the information furnished under Page 11 12 rules 4 and 5 in relation to the councilor of a municipal party, Zilla Parishad party or, as the case may be, member of a Panchayat Samiti Party.”

above, that power to register vests with the Commissioner. The word “Commissioner” is defined in clause (c) of Rule 2 of 1986 Act and the same is reproduced below: “(c) “Commissioner” means the Commissioner of a revenue division appointed under Section 6 of the Maharashtra Land Revenue Code, 1966”. 14. In earlier round, respondent no. 1 filed writ petition no. 1426 of 2012 challenging Resolution dated 20.03.2012 passed in the General Body Meeting of Akola Municipal Corporation which was decided by the High Court JUDGMENT with the following two concluding paragraphs: “30. This discussion leads to conclusion that Respondent Nos. 5 & 6 could not have been treated as members either of Respondent No. 4 or then of the petitioner. The proportionate representation of the Petitioner & Respondent No. 4 on Standing Committee needed to be worked out by ignoring them. The Petitioner therefore, is rightly given 5 members. But then there has to be proportionate reduction in representation allotted to Respondent 4. Strength of Respondent No. 4 in general body of 73 is 33. It therefore gets 7.23 seats in Standing Committee i.e. 7 seats. One seat remains vacant and decision about it Page 12 13

31. Accordingly, Respondent No. 4 Aghadi as also Respondent Nos. 1 & 2 are directed to bring down representation of Respondent No. 4 on Standing Committee from 8 to 7. Proceedings and meeting conducted on 20.03.2012 are quashed & set-aside to that extent. Respondent Nos. 1,2 & 4 to hold a general body meeting to bring down the strength of representatives of Respondent No. 4 from 8 to 7. Respondent 1 Corporation is free to fill in resulting vacancy by nominating on the Standing Committee a Councillor as per first proviso to Section 31A(2) of the Corporation Act in this meeting. Said general body meeting be held within period of three weeks from th today. If 16 seat in Standing Committee can not be filled in, the Respondent Nos. 1 to 4 shall function with Standing Committee of 15 members only. Petition is thus partly allowed. Rule is made absolute in above terms. However, there shall be no order as to costs.” JUDGMENT But in that round of litigation, Divisional Commissioner was neither a party, nor any direction was sought against him. 15. Shri Nikhil Nayyar, learned counsel for the respondent no. 1 referred to a copy of letter dated Page 13 14 06.05.2013 (Annexure R1/5) annexed with the reply on behalf of respondent no. 1 and contended that respondent 1 was registered. Per contra on behalf of appellants, Shri

to the copy of order dated 28.8.2012 (Annexure P-5) whereby application for registration of Mahanagar Sudhar Samiti - respondent no. 1 as an aghadi was rejected by the Divisional Commissioner, Amravati. 16. Copy of communication dated 06.05.2013 (Annexure R-1/5) issued by Municipal Secretary, Akola earlier informing that Mahanagar Sudhar Samiti as one of the registered aghadi is re-produced below: “O.N.AMNC/NS/25/12 Office of Municipal Secretary JUDGMENT Akola Municipal Corporation Akola Dated.6/5/13 To Shri Sunil Meshram Member, MNC Ward no.8-A Subject – Regarding the list of Gatneta and Aghadi which are approved by Divisional Commissioner, Amravati.

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Sd/- Municipal Secretary Akola” 17. Before above communication the Divisional Commissioner had passed order dated 28.08.2012, relevant extracts of the same are reproduced as under: “BEFORE SHRI GANESH THAKUR, DIVISIONAL COMMISSIONER, AMRAVATI DIVISION, AMRAVATI. Case No. 3/Akola M.C/2011-12 JUDGMENT (1) Shri Harish Ratanlalji Alimchandani, Party leader, Mahanagar Sudhar Committee, Akola, Municipal Corporation, Akola, R/o. Aalsi Plots, Tq & Distt. Akola ….Applicant (2) Shri Madan Bodulal Bhargad, Party Leader, Akola Vikas Mahaaghadi, Municipal Corporation, Akola, R/o. Geeta Nagar, Tq & Distt. Akola …Applicant Adv. Milind Vaishnav…. On behalf of Applicant No. 1 Page 15 16 O R D E R

On scrutiny of both the proposals, it comes to the notice that, in the proposal submitted by applicant no.1 the name of Shri Sanjay Babulal Badone is at Sr.no.20 and name of Sau. Madhuri Sanjay Badone is at Sr.no.21. So also, in the proposal filed by applicant no. 2 the name of Shri Sanjay Babulal Badone is at Sr.no. (Five) (2) and name of Sau. Madhuri Sanjay Badone is at Sr.no.(Five)(3). As the names of Shri Sanjay Babulal Badone and Sau. Madhuri Sanjay Badone are mentioned in both the lists, confusion has been created as to which vanguard/front they are members. Therefore, by notice dt. 23/03/2012 both the applicants and City Secretary of Municipal Corporation were informed to remain present for hearing on 27/03/2012 alongwith original documents and proof. JUDGMENT On 27/03/2012 both the applicants alongwith their Advocates and City Secretary of Municipal Corporation Shri Gajanan Madhusudan Pande remained present for Page 16 17 hearing. In the said case, Adv. G.B. Lohiya advanced argument on behalf of Municipal Corporation, Akola. Adv. Santosh Rahate advanced his argument on behalf of Shri Sanjay Babulal Badone and Sau. Madhuri Sanjay Badone.

In the affidavit dt. 14/03/2012 sworn by Shri Sanjay Babulal Badone and Sau. Madhuri Sanjay Badone there is no name and signatures of witnesses and on 14/03/2012 the said affidavit has been recorded at Sr.no.174/12 by Notary Shri R.R. Deshpande, Adv. As per provisions of Indian Evidence Act, the said affidavit cannot be held as complete unless attested. Therefore, there is no sufficient scope to treat the said affidavit of Shri Sanjay Babulal Badone and Sau. Madhuri Sanjay Badone as valid. After considering all the aspects above in totality and on careful perusal of concerned documents filed in the case it comes to the notice that, from the entry made by Stamp Vendor on the stamp papers, the stamp papers appear to have been purchased on 23/02/2012 for the affidavit of Shri Sanjay Babulal Badone and Sau. Madhuri Sanjay Badone attached to the proposal dt. 05/03/2012 submitted by applicant no.1 Shri Harish Alimchandani to the Divisional Commissioner for registering the Mahanagar Sudhar Samiti sponsored by Bhartiya Janta Party as per provisions of rule 3 of the Disqualification Rules. Yet the date of attestation being not as ‘23/02/2012’ it is “22/02/2012”. How the affidavit has been sworn on 22/02/2012 by purchasing stamp papers on 23/02/2012 is an incomprehensible aspect. He filed Xerox copies of said affidavit after receipt of notice in the case before the Divisional Commissioner. It is a notable aspect that, Shri Harish Alimchandani has not submitted original copies of affidavits during hearing of present case. JUDGMENT Page 17 18

Therefore, the following order is being passed. ORDER (1) As per provisions of Maharashtra Local Authority Membership Disqualification Act 1986 and Rule 3(a) of the Maharashtra Local Authority Membership Disqualification Rules, 1987, the proposal submitted by Shri Harish Ratanlalji Alimchandani, Party Leader, Mahanagar Sudhar Samiti, Akola, Municipal Corporation, Akola in prescribed form for registration of “Mahanagar Sudhar Samiti, Akola”, sponsored by Bhartiya Janata Party on 05/03/2012 for registration in the Register Book of the office of Divisional Commissioner, is hereby rejected. JUDGMENT (2) As per provisions of Maharashtra Local Authority Membership Disqualification Act 1986 and Rule 3(a) of the Maharashtra Local Authority Membership Disqualification Rules, 1987, the proposal submitted by Shri Madan Bodulal Bhargad, Party Leader, Akola Vikas Mahaaghadi, Akola, Municipal Corporation, Akola in prescribed form for registration of “ Akola Vikas Mahaaghadi Akola”, sponsored by Bhartiya Rashtriya Congress Party on 16/03/2012 for registration in the Register Book of the office of Divisional Commissioner, is hereby rejected. Page 18 19 th The said order passed today on 28 August, 2012 under my signature and seal.

Order dated 28.08.2012 passed by Divisional Commissioner, Amravati, whereby the application for registration was disposed of, shows that the application of the writ petitioners was rejected as affidavits of Sanjay Babulal Badone (respondent no. 14) and Smt. Madhuri Sanjay Badone were not complete. The two, who were elected from Prabhag no.31 and Prabhag no. 34-B as independent candidates, failed to file any document to show as to which group they belonged. Their names figured in two groups. JUDGMENT 19. In the order dated 28.08.2012 the Divisional Commissioner also referred to a serious infirmity in accepting the proposal, as he found that the affidavit was sworn to and attested on 22.02.2012, whereas the stamps were purchased on 23.02.2012 which the Divisional Commissioner held to be an incomprehensible act of the Page 19 20 proposer. Such serious infirmities which weighed with the Divisional Commissioner in passing the order of rejection dated 28.08.2012 cannot be found fault with. Considering

incumbent upon the Divisional Commissioner to hold a meaningful exercise of scrutinizing the proposal for registration and pass a positive order of registration and then alone the exception carved out under Section 31A(2) of the 1949 Act, even for the limited purpose to get rid of disqualification under the 1987 Rules can be allowed to operate. Viewed in that respect also the order dated 28.08.2012 assumes greater significance and, therefore, unless and until the said order was set aside in the manner JUDGMENT known to law, the formation of the aghadi as claimed by the first respondent could not have come into effect. 20. It is not disputed that no one challenged the order dated 28.08.2012 passed by the Divisional Commissioner, as such the same has attained finality. That being so, the Mahanagar Sudhar Samiti, Akola (respondent no.1) cannot Page 20 21 be said to be a registered group as required under second proviso of sub-section (2) of Section 31A of the Act of 1949. In our opinion, the High Court has erred in law by ignoring

that respondent no. 1 stood registered. If there was objection to registration of an aghadi , on the ground that names of certain members were falsely or wrongly shown in the list, the Commissioner had no option but to verify the same. And, in such cases, unless the verification is done, an aghadi can not be said to have got registered, by merely submitting an application within one month of election to Municipal Corporation. Had the writ petitioners challenged order dated 28.08.2012 passed by the Divisional JUDGMENT Commissioner, with the Resolution dated 29.04.2013, the situation would have been different. But in the present case, order of Divisional Commissioner rejecting application for registration has attained finality, and same cannot be ignored. As such, writ petition filed by respondent nos. 1 to 3 questioning validity of resolution dated 29.04.2013 was liable to be dismissed. Page 21 22 21. Therefore, this appeal deserves to be allowed. Accordingly, the appeal is allowed and impugned order dated 14.8.2013 passed by the High Court in Writ Petition

dated 29.04.2013 shall stand restored. No orders as to costs. ….………….………………………………J. [Fakkir Mohamed Ibrahim Kalifulla] ….….……….………………………………J. [Prafulla C. Pant] New Delhi; February 02, 2015. JUDGMENT Page 22