Rohidas Shankar Patil vs Smt. Mayra Gilbert Mendosa, The ...
2003 Latest Caselaw 397 Bom

JUDGMENT

C.K. Thakker, C.J.

1. This petition is filed by the petitioner for quashing and setting aside a decision of respondent No.1 dated November 20, 2002, recognising respondent No.4 as the 'Leader of Opposition' in the Municipal Corporation of Mira Bhayandar.

2. The petitioner has approached this Court by invoking Article 226 of the Constitution stating therein that he is leader of Bharatiya Janata Party (BJP) in the Municipal Corporation of the City of Mira Bhayandar, respondent No.2 herein. Respondent No.2 is a Corporation created and established under Section 5 of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as "the Act"). Respondent No.1 is Mayoress of respondent No.2, elected under Section 19 of the Act. Respondent No.1 has recognised respondent No.4 as the Leader of Opposition. The said decision is challenged by the petitioner being unlawful an contrary to law as the petitioner ought to have been recognised as the Leader of Opposition.

3. The case of the petitioner is that general election of respondent No.2-Corporation was held on August 11, 2002. Various political parties participated. Indian National Congress (INC) and Nationalist Congress Party (NCP) contested the election by forming alliance i.e. aghandi. There was thus pre-election alliance between those two parties. Result was declared wherein the position of various political parties in respondent No.2 Corporation was as under;

Sr. No. Name of the Party No. of Councillors

1. Nationalist Congress Party (NCP)

2. Indian National Congress (INC)

3. Bharatiya Janata Party (BJP)

4. Shiv Sena

5. Shahar Vikas Aaghadi

6. Independents

4. According to the petitioner, in accordance with the provisions of the Act as amended by Maharashtra Act No. XI of 2002, elected Councillors were required to elect the Leader of the party having the greatest numerical strength as Mayor who shall be the Leader of the House. It also provides for recognition of the 'Leader of the Opposition who must be an elected Councillor and the Leader of the party in opposition having greatest numerical strength. Section 19 of the Act declares that the Corporation at its first meeting after general election will elect from its Councillors one of its members as Mayor (or Mayoress) and another to be Deputy Mayor (or Deputy Mayoress). Whereas Section 19-1A deals with Leader of the House, Section 19-1AA for Leader of Opposition.

5. Sections 19-1A and 19-1AA read thus;

"19-1A. Leader of House. - (1) An elected Councillor who is, for the time being, the Leader of the Party having the greatest numerical strength and recognised as such by the Mayor Shall be the Leader of the House.

Explanation. - When there are two parties in ruling, having the same numerical strength, the Mayor shall, having regard to the status of the Party, recognise the Leader of any one of such parties to be the Leader of the House.

(2) There shall be paid to the Leader of the House such honoraria and allowances and other facilities as may be provided by regulations made in this behalf by the Corporation."

"19-1AA. Leader of Opposition. - (1) An elected Councillor who is, for the time being, the Leader of the Party in opposition, having greatest numerical strength and recognised as such by the Mayor, shall be the Leader of the opposition.

Explanation. - Where there are two or more parties in the opposition, having the same numerical strength, the Mayor shall, having regard tot he status of the party, recognise the Leader of any one of such parties as a Leader of the Opposition for the purposes of this Act and such recognition shall be final and conclusive.

(2) There shall be paid to the Leader of the Opposition such honoraria and allowances and other facilities as may be provided by the regulations made in this behalf by the Corporation."

6. The petitioner stated that the first respondent was elected as Mayoress of the Corporation. One Muzaffar Hussain, an elected Councillor, was elected as Deputy Mayor of respondent No.2. According to the petitioner, the Mayoress as well as Deputy Mayor were elected in support of each other. Respondent No.1 was the leader of NCP and she got herself elected as Mayoress with support of INC. In turn, NCP supported INC and the Leader of INC thereby got elected as Deputy Mayor.

7. According to the petitioner, under Section 19-1AA of the Act, the first respondent was required to recognise the Leader of the party in opposition having greatest numerical strength as the Leader of Opposition. As per numerical strength as extracted hereinabove, BJP, party in opposition was having "greatest numerical strength" and as such leader of that party ought to have been recognised as the Leader of Opposition by the first respondent-Mayoress. Unfortunately, however, the first respondent, acting illegally and with a view to favour INC, recognised respondent No.4 as the Leader of Opposition by an order dated November 20, 2002. The said action is illegal, contrary to law and deserves to be set aside, which compelled the petitioner to approach this Court.

8. The petitioner instituted the present petition on November 25, 2002. On November 29, 2002, on the petition as well as on interim relief, Rule was made returnable within two weeks. Ad- interim relief in terms of prayer Clause (b), was granted till then, By ad-interim relief, during the pendency and final disposal of the writ petition, respondent No.4 was restrained from acting as Leader of the Opposition in respondent No.2 Corporation. Since ad-interim relief operated against respondent No.4, Civil Application No. 103 of 2003 was filed by him for vacating ad-interim relief. With the consent of parties, we had heard the main matter finally instead of passing order on Civil Application.

9. The learned counsel for the petitioner contended that the action of the first respondent in treating respondent No.4 as Leader of the party in Opposition is contrary to Section 19-1AA of the Act and deserves to be set aside. It was submitted that there was aghadi or alliance between NCP and INC, and respondent No.4 could not have been recognised as leader of the party in opposition.

10. It was stated by the first respondent that respondent No.4, a Councillor belonging to INC, was having greatest numerical strength and hence, he was recognised as the Leader of Opposition. But it was argued by the petitioner that INC was party in ruling and not party in opposition and hence, respondent No.4 could not have been recognised as 'Leader of Opposition'. It was submitted that if the impugned action of the first respondent is upheld, it would make the scheme of the Act unworkable. It was urged that the first respondent had been elected as Mayoress in pursuance of alliance with INC which is clear from the fact that though NCP was having 30 Councillors, the first respondent got 54 votes as against 25 votes got by Smt. Kailasben Jani of BJP supported by Shiv Sena. Similarly, for Deputy Mayor, though INC was having 18 Councillors, Muzaffar Hussain got equal votes as got by respondent No.1 viz. 54 votes as against 25 votes got by Smt. Subhangi Nayak of Shiv Sena supported by BJP. It, therefore, cannot be said that INC is a party is opposition. NCP and INC are indeed 'parties in ruling'.

11. The Counsel further urged that acceptance of order passed and action taken by the first respondent would make Section 19-1AA nugatory and frustrate the very object underlying it. The resultant effect would be that the parties in ruling will get all important and key offices, inasmuch as the first respondent who is elected as NCP candidate in alliance with (or getting support of) INC is Mayoress of respondent No.2- Corporation, Muzaffar Hussain, a Councillor elected as a candidate of NCP and obtained equal number of votes as respondent No.1 as Mayoress would be the Deputy Mayor and now respondent No.4 will be the leader of 'Party in Opposition'. Such interpretation would be destructive of the democratic process and cannot be approved.

12. An affidavit in reply is filed by respondent No.1. In the said affidavit, it was stated by her that it was wrong, incorrect and false to contend that NCP and INC contested municipal election by forming a front and/or aghadi. There was no pre- election alliance between the two. Both the parties had put up their candidates independently in the election and in eight different wards for 16 seats they contested against each other. It, therefore, cannot be said that there was alliance, aghadi or yuti between those two political parties. She also denied that she got herself elected as Mayoress with the support of Councillors who belonged to INC as alleged by the petitioner. She further denied that Muzaffar Hussain had been elected as Deputy Mayor with the support of NCP. According to her, Mayoress and Deputy Mayor were elected by getting support from Councillors who belonged to different parties and even independents. Such election was conducted by secret ballots.

13. The deponent also stated that she had legally and correctly recognised respondent No.4 as Leader of the Party in Opposition having greatest numerical strength. According to her, two political parties, viz. INC and BJP claimed to be recognised as 'party in opposition'. Considering numerical strength of INC (18 Councillors) as against BJP (15 Councillors), she recognised respondent No.4 as the Leader of Opposition under Section 19-1AA of the Act. The action is, therefore, legal, valid and according to law.

14. Respondent No. 2 Corporation also filed an affidavit through its Commissioner supporting the stand taken by respondent No.1. It was stated that the order passed by respondent No.1 of recognising respondent No.4 as Leader of the party in opposition is "final and conclusive". It was, therefore, submitted that the petition is misconceived and deserves to be dismissed.

15. Respondent No.4, in his affidavit, denied the allegations levelled by the petitioner. He stated that it was wrong and false to say that NCP and INC contested the election by forming a front or aghandi. Both the parties contested the election independently and in several wards, against each other. He denied that respondent No.1 got herself elected with the support of Councillors who belonged to INC. He also refuted the allegation the Muzaffar Hussain was elected as Deputy Mayor by support of NCP. Since INC contested the election independently, INC can be said to be party in opposition. The party was having greater numerical strength than BJP. It was, therefore, obligatory on respondent No.1 to recognise respondent No.4 as Leader of the party in opposition on the basis of numerical strength of INC. The action thus was in conformity with Section 19-1AA.

16. In affidavit in rejoinder, the petitioner denied the facts stated and averments made in the affidavits in reply by the contesting respondents and reiterated what was stated in the petition. It was also stated that considering the number of votes obtained by respondent No.1 as well as Muzaffar Hussain, it was clear and beyond doubt that both the parties were in alliance with each other and INC could not have been recognised as 'party in opposition'.

17. We have heard the learned counsel for the parties. Mr. Oka, learned counsel for the petitioner, contended that the first respondent had committed illegality in not properly interpreting Sections 19-1A and 19-1AA and in recognising respondent No.4 as Leader of the Party in Opposition. He submitted that there was aghadi, yuti, front or alliance between NCP and INC at pre- election stage, and hence, neither of the parties could be termed and/or treated as party in opposition. Alternatively, the learned counsel submitted that even if this Court is unable to enter into the above question in view of denial by respondent Nos. 1 and 4 regarding pre-election alliance or aghadi, the facts clearly go to show that keeping in view the votes obtained by respondent No.1 as Mayoress and by Muzaffar Hussain as Deputy Mayor, it is proved that there was post-election alliance between the two parties. After the election of Mayoress and Deputy Mayor, it was not open to the first respondent to recognise respondent No.4 as leader of the party in opposition. Had there not been an alliance, neither respondent No.1 nor respondent No.4 could have obtained 54 votes as against 25 votes to their rival candidates. The number of votes obtained by both of them established such alliance. BJP and Shiv Sena claimed 19 seats (15 BJP and 4 Shiv Sena). They had put their candidates as Mayoress as well as Deputy Mayoress. If there was no alliance between NCP and INC and they had contested election against each other, considering the total strength of elected Councillors either as Mayoress or Deputy Mayor (Mayoress), they would not have got 54 votes. Thus, it is established that there was alliance, and hence, INC must be treated as party in ruling along with NCP. If it is so, obviously, INC cannot simultaneously be treated as 'party in opposition'. The leader of the party in opposition must be from, a party having 'greatest numerical strength. Since neither NCP nor INC could be said to be 'party in opposition', the party having greatest numerical strength was BJP, and the petitioner ought to have been recognised as leader of the party in opposition.

18. The learned counsel for the respondents, on the other hand, supported the action of respondent No.1. It was submitted that there was no pre- election alliance or aghadi between NCP and INC. On the contrary, in several wards, NCP and INC contested the election against each other. Those parties, therefore, cannot be said to be 'parties in ruling'. When INC was not a 'party in ruling', it was a 'party in opposition'. No doubt, BJP was also a 'party in opposition' but since numerical strength of INC was grater than BJP, the first respondent was right in recognising respondent No.4 as the leader of party in opposition. Regarding election of Mayoress and Deputy Mayor, it was submitted that even if it is assumed that INC had supported NCP- Respondent No. 1 as Mayoress and/or NCP had supported INC - Muzaffar Hussain for Deputy Mayor, it does not change status of both the parties and neither INC would become 'party in ruling' nor it would cease to be 'part in opposition'. It was also stated that INC vide its letter dated November 20, 2002, requested the first respondent to recognise respondent No.4, a Councillor belonging to INC as leader of the party in opposition having greatest numerical strength. Accordingly, a decision was taken by the first respondent recognising respondent No.4 as leader of the party in opposition. The said action was in conformity with Section 19-1AA of the Act and the petitioner cannot make grievance against it.

19. Having heard the learned counsel for the parties, in our opinion, it cannot be said that by recognising respondent No.4 as leader of the party in opposition, respondent No.1 has committed any illegality, error of law or has acted contrary to the provisions of Section 19-1AA of the Act. Chapter II of the Act provides for constitution of municipal authorities. Corporation has been defined as the Municipal Corporation "constituted or deemed to have been constituted under the Act. Section 5 declares that every Corporation shall be a body corporate having perpetual succession and a common seal and may sue and be sued. Section 19 enacts that the Corporation at its first meeting after general election shall elect from amongst the Councillors, one of its members as a Mayor and another to be a Deputy Mayor. The tenure of Mayor and Deputy Mayor is two and a half years. Regarding powers and duties of Mayor, the said section is silent. Chapter II of Schedule-D deals with proceedings before the Corporation, standing Committee, Transport Committee, etc.

20. By Maharahstra Act No. XI of 2002, certain amendments have been made in the Act, Sections 19- 1A and 19-1AA came to be inserted, which we have noticed in the earlier part of the judgment. The expressions "party in ruling", "party in opposition", or "leader of opposition" have not been defined in the Act. The phrase "Leader of the Opposition", however, has been defined in the Leader of Opposition in Maharashtra Legislature Salaries and Allowances Act, 1978. The said expression reads thus:

"In this Act, "Leader of the Opposition" in relation to either House of the State Legislature, means that member of the State Legislative Assembly or the State Legislative Council, as the case may be, who is, for the time being, the Leader in that House of the party in opposition to the State Government having the greatest numerical strength and recognised as such by the Speaker of the Assembly or the Chairman of the Council, as the case may be."

Other sections of the said Act provide for salary, residence, conveyances, travelling and daily allowances and other facilities to the Leader of Opposition.

21. The question which we are called upon to decide is, whether INC can be said to be party in opposition and whether respondent No.4 could have been recognised as leader of the party in opposition. According to the petitioner, INC is a 'party in ruling' and party in ruling cannot be considered and recognised as party in opposition. In the circumstances, 'party in opposition' can be any party other than NCP and INC. From those parties, Leader of Opposition can be recognised. Now, considering other parties i.e. parties in opposition, BJP is the only party which is having greatest numerical strength. The said party, therefore, ought to have been recognised as such by the first respondent and the petitioner ought to have been recognised as leader of the party in opposition.

22. We are unable to uphold the contention of the learned counsel. So far as 'pre-election' aghadi, yuti, front or alliance is concerned, it has been clearly refuted and denied by the respondents. Affidavits have been filed by respondent Nos. 1, 3 and 4 asserting that the allegation levelled by the petitioner is incorrect and misleading. It is further stated that, there was no formal 'pre- election' alliance between NCP and INC. That apart, both the parties contested the election against each other in several wards. In the circumstances, it cannot be said that there was pre-election alliance between NCP and INC.

23. This position has not been seriously disputed even by the petitioner. What was pressed in service, however, was that even if there was no 'pre-election' alliance, there was 'post election' understanding which is apparent from the election of Mayoress and Deputy Mayor. Respondent No.1 was elected as Mayoress by getting votes from NCP. Likewise, a candidate of INC having numerical strength of only 18 councillors got elected as Deputy Mayor by getting equal number of votes obtained by the Mayoress. Thus, NCP and INC are really parties in ruling. The counsel also submitted that there may be more than one party in ruling. Such situation has been recognised even by the Legislature. The Explanation to Section 19-1A clearly and unequivocally deals with a situation when there are two parties in ruling having the same numerical strength by laying down how Mayor should be elected.

24. The learned counsel is right in interpreting the Explanation. At the same time, however, in the case on hand, we are unable to hold the NCP and INC can be said to be 'parties in ruling' as contemplated by the Explanation to Section 19-1A. When there was no aghadi or pre-election alliance and in certain wards, both the parties contested the election against candidates of each other, in our view, it cannot be concluded that NCP and INC were 'parties in ruling'. It is no doubt true that both Mayoress as well as Deputy Mayor belonged to those two parties - Mayoress of NCP and Deputy Mayor of INC. It is also true that both the candidate obtained equal number of votes against their rivals i.e. 54 : 25. From that fact, however, it cannot be held that both the parties are parties in ruling. In politics, there may be several considerations by various parties to support a candidate to each other. These are questions which can be considered by them, keeping in mind diverse factors. A Court of law is ill- suited to resolve them.

25. In spite of wide powers of this Court under Article 226 of the Constitution, there are certain fields not subject to judicial scrutiny. It is well-settled that "questions of political wisdom could not be subjected to judicial review". (Vide Bhut Nath v. State of W.B., ).

26. If the issue is purely political, it is not justiciable and the appeal should be "to the polls and not to the Courts".

27. In Harisinh Pratapsinh Chavda, Gandhinagar v. Chimanbhai J. Patel, , the term of office of the Chairman of a Statutory Board was sought to be curtailed by the Chief Minister. The action was challenge as illegal, mala fide and politically motivated.

28. Dismissing the petition and negativing the contentions, one of us (Thakker, J. as he then was) stated:

"I am afraid this Court in the exercise of the powers under Article 226 of the Constitution cannot enter into those questions since essentially they are "political issues". As observed by Krishna Iyer, J. in Bhut Nath v. State of West Bengal, , political issues are not justiciable issues and the appeal should be to the polls and not to the Courts. The Court cannot entertain a political question, since it is concerned only with adjudication of legal rights and liabilities in accordance with law."

29. In our judgment, in the case on hand, when there was no pre-election alliance between NCP and INC and both the parties contested the election of Respondent No.2-Corporation independently and even against each other at least in some wards, it cannot be said that by treating INC as a party in opposition having greatest numerical strength and by recognising respondent No.4 as leader of the party in opposition, any illegality has been committed by respondent No.1.

30. The matter can be looked at from different angle as well. From the record, it is clear that INC had addressed a letter to respondent No.1 on November 20, 2002, stating therein that INC was a party in opposition, and as it was having 'greatest numerical strength', its leader - respondent No.4- be recognised as leader of the party in opposition. If, in the light of the above letter, respondent No.1 had considered INC as party in opposition and had recognised respondent No.4 as leader of the party in opposition, having greatest numerical strength, in our opinion, the said action of respondent No. 1 cannot be held arbitrary, unreasonable or contrary to Section 10-1AA of the Act. We are, therefore, of the opinion that the petitioner's grievance against the said action is not well-founded.

31. For the foregoing reasons, in our opinion, the action of respondent No.1 in recognising respondent No.4 as leader of the party in opposition having greatest numerical strength cannot be termed as arbitrary, illegal or contrary to Section 19-1AA of the Act. The petition, therefore, deserves to be dismissed and is accordingly dismissed. Rule is discharged, Ad- interim relief granted earlier is hereby vacated. In the facts and circumstances, however, there shall be no order as to costs.

32. In view of the above order, nothing survives in the Civil Application. The same is accordingly disposed of.

Parties be given copies of this judgment duly authenticated by the Sheristedar/Private Secretary.

33. The learned counsel for the petitioner prayed for continuation of ad-interim relief granted earlier. It was stated that ad-interim relief was granted as early as on November 29, 2002, and since the petitioner intends to approach the Supreme Court, it may be continued for some time more.

34. The prayer is strongly objected by the contesting respondents. It was stated that the resultant effect would be that there would not be Leader of Opposition in the Corporation, and hence, no such relief should be granted.

35. In our opinion, prayer cannot be granted, and hence it is rejected.