Dayashankar Chandrashekhar ... vs Municipal Corporation Of The City ...
2003 Latest Caselaw 572 Bom

JUDGMENT

R.S. Mohite, J.

1. Rule. By consent, rule is made returnable forthwith by consent of the parties.

2. Heard learned counsel for the respective parties.

3. This petition is a tale of a sordid and unfortunate drama which unfolds in two acts at two meetings of the Nagpur Municipal Corporation, held on 25.3.2003 and 29.3.2003, for the purpose of electing 16 members to the Standing Committee of the Nagpur Municipal Corporation. The dramatis persone and the main protangonists in this drama are 30 member Corporators who belong to the B.J.P. group (main opposition group) 28 of whom are the petitioners and the Mayor of the Nagpur Municipal Corporation, Shri Vikas Thakre, who is arraigned as Respondent No.2 in this petition. Minor parts were played by the Commissioner of Nagpur Municipal Corporation, who is Respondent No.3 and other Corporators who were supporting the Congress group, which formed the ruling party group in the Nagpur Municipal Corporation.

4. The brief chronological sequence of facts which emerge from the record are as under :

(a) In February 2002, the elections of the Councillors for the City of Nagpur Corporation were held. The total strength of the house was 136 members. It is undisputed that 11 seats were vacant and thus there were 125 seats of Corporators which were filled in. It is the contention of the petitioners that the partywise composition of the parties was as under :

  Name of Party               No. of  Corporators
Congress                        I46







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(b) It is not in dispute that on 17.3.2003, the Secretary to the Nagpur Municipal Corporation issued a notice calling for an Ordinary Meeting of the Nagpur Municipal Corporation to be held on 25.3.2003 at 11.00 A.M. at Raje Raghujirao Bhosale Town Hall for considering a subject relating to election of 16 members of Standing Committee of Section 34(1) of the City of Nagpur Corporation Act, 1948, for a period of one year.
 

(c) It is not in dispute that the meeting dated 25.3.2003 commenced at 2.00 P.M. on schedule. However, what exactly happened at this meeting has been a subject of dispute and hot debate before us and hence we would like to reproduce the two versions before us in this regard.
 

PETITIONERS VERSION : The petitioners version as to what happened on 25.3.2003 can be found in para 6 of the petition and is in the following terms :

"6. Apropos the said notice, the Councillors assembled for electing Members to the Standing Committee on 25.3.2003. On that day, the Congress and its allies were in minority and were sure of losing the election. The Mayor, therefore, began the meeting at 11 O clock. Immediately thereafter, the Mayor Shri Vikas Thakre proposed a Motion of Condolence to condone the death of renowned poet Shri Suresh Bhatt. After the Motion of Condolence was passed, the Mayor suddenly got up from his chair and declared that no business shall be transacted, as the condolence meeting is over. The Mayor immediately left the House and the meeting was adjourned to 29.3.2003. Thus, the Mayor illegally and without any authority of law adjourned the meeting without even taking the consent of majority of the Councillors for adjournment. It is stated that after every meeting of the Corporation is over, the National Anthem is played and sung by the Councillors present. But on the said date not even the National Anthem was played and the Mayor left in a hurry by illegally adjourning the meeting without any authority of law. It is pertinent to state at this juncture that Section 27 of the City of Nagpur Corporation Act, 1948, authorises the adjournment of a meeting only with the consent of the majority of the Councillors present. No such consent of the Councillors present was taken and the meeting was illegally adjourned. Because of this, there was some displeasure amongst the Councillors. The displeasure was exhibited by the Councillors by raising slogans. However, no untoward act was done on the said date. At any rate, the displeasure was exhibited only after the meeting was over and the House was adjourned."

The version of Mayor Shri Vikas Thakre. The Mayor Shri Vikas Thakre in para 7 of his affidavit in reply to the petition dated 22.4.2003, dealt with the version given by the petitioners and while denying the correctness of the said version, gave his own positive version as to what happened during the meeting held on 25.3.2003. The version as contained in para 7 of the affidavit in reply is as follows :

"7. It is denied that on 25.3.2003 the congress and its allies were in minority and were sure of losing the elections, as alleged. It is true that after beginning of the meeting, the motion of condolence/ condoning the death of a renowned Poet, Shri Suresh Bhatt, was moved. It is also true that after the condolence motion was passed, it was declared that no business shall be transacted. It is however, specifically stated here that this was done after taking sense of all the members in general, and in particular, after consulting the Leader of the Ruling Party Alliance who admittedly represented majority of the Corporators who were present in the meeting of 25.3.2003. The meeting was thus adjourned with the consent of a majority of Corporators who were present in the meeting. It is, therefore, not correct to suggest that the meeting was adjourned without taking consent of the majority of the Corporators, as alleged. It is denied that the meeting was adjourned illegally without any authority, as alleged. I say that under section 27 of the said Act, I being the Presiding Officer of the meeting, has power to adjourn the meeting, to any other date. It is therefore not correct to say that I had no authority to adjourn the meeting. It is stated here that after the condolence motion is passed in the meeting, there is no practice to play the National Anthem, before adjourning the meeting. In view of this, non-playing of National Anthem is of no significance. It is further specifically denied that no such consent of the Corporators present was taken and the meeting was illegally adjourned, as alleged. It is specifically submitted here that during the meeting, there was no untoward incident, which had taken place. However, after the meeting was over and the same was adjourned to 29.3.2003, all of a sudden, the corporators belonging to the Bharatiya Janata Party as well as those belonging to the Bahujan Samaj Party started raising slogans and indulged in the act of rowdism and they had gone berseak and they started breaking flower pot, chairs, including the chair of Mayor, Deputy Mayor and also damaged the Mike system and properties of the Corporation and ransacked the house. The Secretary of the Corporation, Shri Prakash Tilgule was therefore required to lodge First Information Report (FIR) against 24 Corporators viz; S/Shri Sanjay Manikrao Jaiswal (BSP), Gajanan Panditrao Tamboli (BJP), Abdul Majid Shola, Sandeep Diwakar Joshi (BJP), Girish Chandrakant Deshmukh (BJP), Praveen prabhakar Datke (BJP), Bhola Garibdas Baisware, Prakash Parimal Totwani (BJP), Deepak Kumar Kewal Agrawal (Arora) (BSP), Rahul Sukhdeo Telang (BSP group leader), Bhaskar Narayan Parate (BJP), Subhash Govind Apraji (BJP), Manish Tulshiram Titarmare (BSP), Shivshankar Dhatrak, Vikash Pundlik Nagbhide, Balu Bante, Vijay Bhabre, Pushpa Ghode (Ex. Mayor BJP), Mamta Bhoyar, Geetadevi Chhadi, Rama Kolhatkar, Saveeta Landge (BSP), Sanjay Bangale and Tushar Morghade. On the basis of the F.I.R. a Crime is registered against the aforesaid persons for the offence punishable under section 3 of the Prevention of Damage to Public Properties Act vide Crime No.3050 of 2002 and the same is registered with Kotwali Police Station."

(d) According to the petitioners, after the House was adjourned on 25.3.2003 on the same day, the Secretary of the Nagpur Municipal Corporation issued a notice convening the adjourned meeting at 2.00 P.M. on 29.3.2003 at the same venue. It is contended that in the breathing time obtained by the Congress group between 25.3.2003 and 29.3.2003, the Congress and its leaders tried to secure its majority for the election of members of the Standing Committee by all means but they soon realised that they would not succeed in securing a majority and would lose the election of the Standing Committing now scheduled to be held on 2.00 PM on 29.3.2003.

(e) On 29.3.2003, the meeting commenced at about 2.00 O clock in the afternoon. There are again two versions before us as to what exactly happened in the meeting held on 29.3.2003. The two versions as appear from the record are reproduced as under :

PETITIONERS VERSION : The petitioners version can be found in para 8 (in part), paras 9, 10, 11 & 12.

"It is submitted that when the meeting started at about 2 O clock in the afternoon on 29.3.2003, Shri Yeshwant Kumbhalkar who is the Councillor belonging to Congress I and Smt. Kanta Parate who also belongs to Congress I came down into the well and started raising slogans against the Members of B.J.P. They gave prohibitive speeches. Thereafter many other members belonging to Congress I also jumped into the well. In fact the Councillors of the Congress I created ruckus in the House and indulged in disorderly behaviour in the said House. They also sought to provoke the Councillors belonging to B.J.P. and their alliances by insulting and abusing the Honble Prime Minister, the former Minister of B.J.P. Shri Nitin Gadkari and by also shouting slogans against the Father of Nation Mahatma Gandhi. In view of the same Shri Vikas Kumbhalkar went to the Councillors, who happen not to be suspended for any alleged disorderly behaviour, gave a letter to the Mayor on 29.3.2003 at 4.15 P.M. which was duly received by the Mayor. In the said letter, it has been stated that the Members of the House whose names have been stated in the said letter and who belong to Congress and its allies raised a pandemonium in the House and used abusive and filthy language against the Honble Prime Minister as well as Shri Nitin Gadkari. The said members were referring to the other members of the House who belong to B.J.P. and its allies as the murderers of Mahatma Gandhi. Thus, the said members indulged in disorderly behaviour in the House and had tried to breach peace in the said House by provocating other members. However, knowing the conspiracy and game plan of the Mayor and the members belonging to Congress party to somehow either postpone the meeting or to do some illegal act so as to scuttle the meeting, the Councillors belonging to B.J.P. party and its allies did not utter a word and kept silence. Thereafter, the members belonging to Congress party demanded that strict action should be taken against the persons who had allegedly indulged in disorderly behaviour after the meeting held on 25.3.2003. The Mayor thereafter immediately shouted certain names and asked those members to immediately go out of the House. In the said pandemonium, it was not even clear as to which names were taken by the Mayor. The Mayor did not even give a written direction thereby asking the members to withdraw from the House. No such written direction was ever issued by the Mayor. It was not even clear as to why and against whom such a direction was passed and that too not in writing, but orally. The Mayor himself behaved in a most disorderly, unparliamentary and undemocratic manner which does not befit the conduct of a Corporator, much less a Mayor. The Mayor was challenging the members of B.J.P. and other independents. In fact the Mayor even challenged the other corporators belonging to B.J.P. and other allied group by saying that if anybody tries to mess with him he will come down to criminal activities (Dadagiri) by coming on the street. The Mayor himself used filthy and abusive language. This has been reported in various newspapers also and the petitioners seek to rely upon and refer to the said newspapers. Even otherwise, the conduct of the Mayor was most abrasive, insulting, abusive and disorderly and the Mayor gave up the role of an unbiased Presiding Officer of the House. The Mayor has to be an unbiased person who controls the House and ensures and preserves order in the said House. However, the Mayor was himself responsible to disturb and dislocate the order and orderly functioning of the said House.

9. As stated hereinabove, at 4.15 P.M. itself Shri Vikas Kumbhare belonging to B.J.P. had given a letter to the Mayor to suspend 18 Congress Corporators who had and were indulging in disorderly behaviour by giving filthy abuses and insulting the Honble Prime Minister etc. A copy of the said letter dated 29.3.2003 issued by Shri Vikas Kumbhare is annexed herewith and marked as ANNEXURE "C" to the petition and a true translated copy thereof is marked as ANNEXURE "C-1". Not only that the Mayor did not take any action against them, but on the contrary, the Mayor suspended 30 members of B.J.P. and its alliances without any justifiable reason. No written directions were issued in that regard.

10. Thereafter, the Mayor also wrote to the Commissioner of Police on the same day at about 5 O clock that 30 members of the House mentioned in the said letter be taken out of the House as they have been asked to withdraw from the House for their alleged disorderly behaviour after the meeting on 25.3.2003. What is relevant to state at this juncture is that, the Mayor has clearly stated in the said letter that the cause for asking the said Corporators to withdraw from the said meeting was their "alleged behaviour" on 25.3.2003. Thus, the Mayor has taken into consideration the alleged behaviour much anterior to the meeting dated 25.3.2003 into account by directing the said members to withdraw from the said House. The action of the Mayor is thus clearly ultra vires the provisions of the City of Nagpur Corporation Act, 1948, and ultra vires the powers of the Mayor under Section 32 of the Act, which are purported to be exercised by the Mayor. A copy of the said letter dated 29.3.2003 issued by the Mayor to the Commissioner of Police stating that the Corporators have been asked to withdraw themselves because of their behaviour on 29.3.2003 is annexed herewith and marked as ANNEXURE - "D" to the petition and a true translated copy is marked as "ANNEXURE- D1".

11. That after the said letter was issued, the petitioners for the first time learnt the cause for the Mayor to direct the petitioners to withdraw from the House. The petitioners therefore requested the Mayor by writing a letter to the Mayor to immediately withdraw the said illegal action. All the petitioners also wrote to the Mayor to withdraw the said directions and to permit the petitioners to vote at the elections. It was also stated in the letter that otherwise it would be clearly presumed that the petitioners and two others were suspended so as to gain an artificial majority in the House which the Congress and its alliances did not have. In the same letter, the petitioners also wrote to the Mayor to immediately issue the proceedings of the meeting. This was done because the petitioners were sure and are sure that the proceeding book would be tampered with by the Mayor and his associates belonging to Congress and its alliances so as to project a false picture. It is clear that no orders were passed by the Mayor nor the copy of the proceeding book was given to the petitioners because the Mayor and the Councillors belonging to Congress party seek to fabricate the proceeding and to create a false record. The petitioners are herewith annexing a specimen copy of the representation made by petitioners to the Mayor on 29.3.2003 at about 7 P.M. A specimen copy ofs the said letter issued by the petitioner No.1 is annexed herewith and marked as "ANNEXURE - E" to the petition. It is stated that all the petitioners have given identical letters to the Mayor which have been duly acknowledged and accepted by the Mayor. Even before that Shri N.S. Shyamkule, the Leader of the Opposition in the House gave a letter to the Mayor that the said act on the part of the Mayor was totally undemocratic, arbitrary and ultra vires his powers under the City of Nagpur Corporation Act, 1948. It was also stated that the decision was only a political decision to create an artificial majority in the house. A copy of the said letter dated 29.3.2003 issued by the Leader of the Opposition stating that the voting would be under protest is annexed herewith and marked as ANNEXURE - F to the petition.

12. Inspite of the said communications, the Mayor proceeded to hold the meeting of the Standing Committee. In the meeting so held, the candidates belonging to Congress I and its alliances were elected, inasmuch as out of 16, 10 candidates of Congress and 5 candidates of Nationalist Congress Party and one candidate of Republican party, which was supporting the Congress came to be elected. Rival candidates came to be defeated by a very narrow margin of about 2 to 15 votes. It is pertinent to state at this juncture that highest votes secured by the candidates belonging to Congress or its alliances were 52 whereas the lowest votes secured by a candidate of Congress I and its alliance were 43. Whereas the lowest votes secured by the candidate belonging to B.J.P. and its alliances were 35 and the highest votes secured were 41. Thus, the candidates have lost by a margin of about 2 votes to 15 votes. Had the 30 Corporators being permitted to participate in the election, the picture would have been wholly different and the Congress and its alliances would be totally routed in the House. Not only that, the eminent leaders of the B.J.P. came to be suspended from the House, as a result therefore they could not contest the election apart from being prevented from voting. Had the prominent B.J.P. leaders and its alliances contested the elections, they could have secured far more votes. Thus the election was manoeuvred, rigged and conducted in a most undemocratic manner so as to secure the elections to the post of Members of Standing Committee. It is pertinent to state at this juncture that (no) such an election has been taken in the history of Nagpur Municipal Corporation or perhaps in any other Corporation in the country wherein 30 members of the Corporation have been suspended at one and the same time.

VERSION OF MAYOR SHRI VIKAS THAKRE

The Mayor Shri Vikas Thakre in his affidavit in reply dated 22.4.2003 gave a positive version as to what happened on 29.3.2003 in paras 10, 11, 12, 13, 14, 15, 16, 17 & 18, which are reproduced as under :

"10. I say that the adjourned meeting of the Corporation was held on 29.3.2003 at 3.00 P.M. It was attended by 130 Corporators, including myself and the Deputy Mayor, Smt. I.A. Kundan, the Additional Commissioner and Shri P.B. Tilgule, Secretary of the Corporation were also present in the said meeting. Initially, when I called the meeting to order, Shri Shyamkule, Leader of the Opposition tried to raise issue regarding water supply. However, I had informed him that after completion of the Agenda, the discussion on other issues shall be considered.

11. I say that thereafter, S/Shri Kumbhalkar, Prakash Gajbhiye, Prafulla Gudadhe, Binnu Pande, Smt. Kanta Parate and Shri Natthu Patel, the Members of the Ruling party, one by one, raised an issue of unruly behaviour and disgraceful conduct displayed by the BJP and BSP Corporators, after the meeting of 25.3.2003 was adjourned. Shri Kumbhalkar and Smt. Kanta Parate sought explanation as to what action has been taken against the said BJP and BSP Corporators. Shri Prakash Gajbhiye spoke that the said Corporators had shown total disrespect and dishonour to the Chair of the Mayor, which is required to be respected by each and every member of the House. Shri Prafulla Gudadhe spoke that the chair of the Mayor has been broken, which has brought disrepute to the name of the Nagpur City. He further spoke that there has been videography of this incident and the residents of Nagpur have witnessed a disruption of the House. He demanded that action should be taken against all those members of the Opposition party, of whom, he had a list. He handed over the list of 25 BJP and BSP Corporators to me and demanded action against them.

12. I say that in response to above, I informed the house that the action against these BJP and BSP Corporators has already been taken. I say that I had informed the house that the offences have been registered against all those BJP and BSP Corporators. Thus the said issue stood concluded at that very moment. However, on coming to know this, some of the BJP Corporators got annoyed and stood up immediately and started shouting and abusing in a filthy language. Thereupon I had asked the Secretary of the Corporation to give the names of the members who indulged in disorderly behaviour. On receiving the information regarding the names, I announced the names of the following persons and asked them to withdraw from the meeting.

1. Shri Sandeep Joshi

2. Shri Sanjay Bangale

3. Shri Shiva Dhatrak

4. Shri Gajanan Tanboli

5. Shri Pravin Datke

6. Shri Balu Bante

7. Shri Tushar Morghade

8. Shri Krushna Khopde

9. Shri Shashi Shukla

10. Shri Majid Shola

11. Shri Rupesh Meshram

12. Shri Manish Titarmare

13. Shri Shirish Deshmukh

14. Shri Prakash Totawani

15. Shri Shubhash Aparajit

16. Shri Shekhar Sawarbandhe

17. Shri Vijay Babhare

13. I say that I had asked all the aforementioned 17 Corporators to go out of the House. Inspite of this, the aforesaid members did not leave the House and therefore, Shri Kumbhalkar, Leader of the Ruling Party stood up and said that the ruling given by the Mayor has to be respected and the aforesaid members are required to go out of the House and it is only thereafter, the leader of the opposition should be permitted to speak. Thereupon, I had again announced the names of aforesaid 17 Corporators and asked them to go out of the House Inspite of this, those Corporators did not leave the House and therefore, Shri Natthu Patel, Member of the Ruling Party said that until all these members leave the House, no proceedings of the meeting should be conducted Thereafter, again I had asked the aforesaid 17 members to go out of the House with a warning that inspite of such order being passed on two occasions, they have not left the House and if they refuse to leave the House, then arrangement will have to be made for that purpose. At this stage, all those 17 members went out of the House.

14. Thereafter, Shri Dayashankar Tiwari, the BJP Councillor, who is petitioner No.1 herein demanded explanation as to under what provisions of law the aforesaid action has been taken by me, against 17 members. He said that the Commissioner of the Corporation, who was also sitting there in the House at that moment, should clarify the position of law. I had, therefore, asked the Commissioner to make the said Corporator aware of the position of law, and explained it to them. The Commissioner thereupon left the House and went to his chamber along with Shri Tiwari, the petitioner No.1 and some other BJP Corporators.

15. I say that within a short time thereafter I had informed the House that the action has been taken against the aforesaid 17 members in accordance with Section 32 of the Corporation Act. I say that at this moment 12 more members of BJP came down in the well. I am giving below the names of these 12 Corporators of BJP :

1. Shri Deepak Arora

2. Shri Pandurang Mehar

3. Shri Raju Hattihele

4. Shri Vithal Bhede

5. Shri Prabhu Arkhel

6. Shri Bhola Baisware

7. Shri Ashok Mendhe

8. Smt. Mamta Bhoyar

9. Smt. Medha Pise

10. Smt. Vinita Thakre

11. Smt. Damayanti Kanhere

12. Smt. Gita Chhadi.

I say that the aforesaid BJP Corporators came down in the well and assembled in front of my Chair and started debating, shouting and beating the table. When this was going on, 17 members who had earlier left the House, again entered the House along with the petitioner No.1 Shri Dayashankar Tiwari and started snatching away the Attendance Register from the employees of the Corporation, Shri Bhorkar and Sharak Uke, the peons who were helping the secretary. These 17 members wanted to again sign the Attendance Register. Some of the members of the ruling party came to the rescue of the said corporation employees. However, thereupon those 17 members of the opposition party along with Shri Dayashankar Tiwari became violent and attacked the aforesaid employees of the corporation as well as those Corporators of the ruling party, who came to the rescue of the employees. The other 12 members of the Opposition party who were shouting in the well also rushed there and acted in aid of those members who tried to snatch away the attendance register. Thus there was a pandemonium in the house resulting in scuffle. During this process, some of the pages of the register were torn. At that time I also ordered the other 13 BJP Corporators, including the petitioner No.1 Shri Dayashankar Tiwari to go out of the House.

16. Shri Sole, the BJP Corporator said that the Members are asked to go out of the House for the incident of 25.3.2003. However, I had made it clear and informed the House that the members have not been asked to leave the House for the incident of 25.3.2003, but for their acts of abusing, making scurrilous attack, and creating disorder in the House in the meeting of 29.3.2003, that they were asked to go out of the House. I had again asked those BJP Corporators to go out of the House for the act of snatching and tearing the attendance register and beating the employees. I had also asked the BJP members, who were acting in aid of such Corporators to leave the House. I had announced the names of the 30 Corporators including the petitioner No.1 Shri Dayashankar and the aforesaid 17 and 12 Corporators and asked them to leave the House. I say that when inspite of above, the aforesaid Corporators did not leave the House, I signed the letter dated 29.3.2003, which was addressed to the Assistant Commissioner of Police, Kotwali Police Station, who was then very much present in the House.

17. I further say that I had again announced that the Corporators whose names were announced should go out. They have torn the register, which was witnessed by the police. Shri Sole, one of the BJP Corporators said that I was punishing the opposition Corporators for the adjournment of meeting of twenty fifth. I immediately made it clear that the action had not been taken for the incident of 25th but for the acts which they had committed in the meeting of 29th. Inspite of this, the aforesaid 30 Corporators did not leave the House and remained seated in the House.

18. I say that thereafter I had started taking the subject on the agenda of the meeting and explained the procedure which shall be followed to conduct the election of members of standing committee by announcing that those Corporators who were asked to leave the House shall not be allowed to participate in the proceedings. Thereafter I announced the names of validly nominated candidates. I say that after announcing the valid nominations, all the BSP Corporators had left the House in protest. However, all other BJP members voted in the election; some of whom voted under protest.

(f) It is not in dispute that while the meeting dated 29.3.2003 was in progress, at about 4.15 PM, a Corporator by name Vikas Kumbhare, belonging to BJP gave a letter to the Mayor, placing on record that after the meeting had started at 2.30 PM, 19 members who were named in the letter created a pandemonium in the House, used unparliamentary words and shouted slogans of "murderers of Gandhiji" and abused the Prime Minister Atal Bihari Vajpayee and the B.J.P. Member of Parliament Nitin Gadkari. This letter recorded that as the Mayor of Nagpur City, Respondent No.2 had personally witnessed all these incidents and they have been filmed also. Therefore, a request was made for suspension of 19 members. As regards this letter, Respondent No.2 in his reply admitted the receipt of such letter but stated that the contents of the same were false, incorrect and since the contents of the letter were far from truth, there was no question of taking any action against the Corporators named in the said letter. It is also not in dispute that on 29.3.2003, while the meeting was still in progress, at about 5.00 P.M., the Mayor Shri Vikas Thakre handed over a letter to the Assistant Commissioner of Police, Kotwali Police Station, Nagpur, who happened to be present at the place of meeting, informed him that 30 members of the Corporation, who have been named in the letter have been suspended (translated from the Marathi word "Nilambit") from the meeting of 29.3.2003 because of causing damage and misconduct (translated from the Marathi word "todfod va Gaivartanuk). In the said letter, he made a request to the Police Officer to take action for removing 30 persons named, from the venue of the meeting. As regards the submission of this letter, we find from the record that the same appears to have been acknowledged by the Police Officer of the Kotwali Police Station on 29.3.2003 without putting any specific time of receipt. The Mayor Shri Vikas Thakre, in his reply, while admitting the submission of this letter to the A.C.P., Kotwali Police Station, gave his version as to how this letter came to be submitted to the Police Officer. This version can be found in part of para 10 and is reproduced for convenience as under :

"Be that as it may, I say that on 29.3.2003, when inspite of repeated warnings the aforesaid 30 BJP Corporators did not leave the House, I had asked my P.A. to write a letter to the A.C.P. Kotwali Police Station, Nagpur, stating that the said 30 Corporators had torn the attendance register and had indulged in unruly and disorderly behaviour on 29.3.2003 for which, they were asked to withdraw from the House. However, inspite of this the said Corporators were not leaving the House and hence I had told him to request the ACP, to arrange for taking them out of the House. I say that my P.A. wrote a letter dated 29.3.2003 addressed to ACP Saheb, Kotwali Police Station, Nagpur, a copy of which is annexed herewith and marked as Annexure R3-1 to this reply and placed it before me for my signature and I signed it. I say that during this period, there was chaotic atmosphere in the House, created at the instance of BJP Corporators. I was busy in maintaining order by requesting the members of the House and I did not notice the contents of the said letter. When some order was restored in the House, I wanted to see the letter. My P.A. then informed me that he had handed over the said letter to Shri Rude the A.C.P. who was present in the House. On going through the copy of the letter, I noticed that the date 25.03.2003 was wrongly mentioned. I therefore, directed my P.A. to send the corrigendum to the said letter, bringing to the notice of ACP that the mention of date 25.3.2003 was by mistake and it should be read as 29.3.2003. Accordingly, a letter dated 29.3.2003 was issued immediately on 29.3.2003 to the said ACP, a copy of which is annexed herewith and marked as Annexure R3-2. I say that the petitioners cannot take advantage of the mistake, which is genuine and bonafide. In the background of the facts stated above, it is apparent that 30 Corporators were directed to withdraw from the House/meeting for their acts of disorderly behaviour in the meeting held on 29.3.2003 and not on 25.3.2003. Similarly, the use of the word "Nilambit" is also a mistake occurred due to the oversight and it is to be read and understood as "withdraw". The petitioners have rightly understood that they were directed to withdraw from the House/meeting dated 29.3.2003. I specifically deny that I had taken into consideration the behaviour of the BJP Corporators much anterior to the meeting dated 29.3.2003 into account and directed the said members to withdraw from the said House. It is denied that my action was clearly ultra vires the provisions of the Nagpur Corporation Act, 1948, and ultra vires the powers conferred upon me under Section 32 of the said Act, as alleged."

As regards Corrigendum letter dated 29.3.2003 claimed to have been written by the Mayor to the A.C.P. Kotwali Police Station, we find from the letter annexed to the affidavit that there appears to be some acknowledgement of a Police Officer, Kotwali Police Station, Nagpur, but again there is no endorsement as to the time of this acknowledgement. It is further clear that the affidavit of the Mayor Shri Vikas Thakre does not shed any light as to when this clarificatory corrigendum was given by the Mayor to the A.C.P. of Kotwali Police Station, Nagpur.

(g) It was further the contention of the petitioners that before 7.00 P.M., while the meeting dated 29.3.2003 was still in progress, the leader of the Opposition Shri N.S. Shyamkule had addressed a letter to the Mayor placing on record that the BJP members have been improperly suspended in violation of principles of natural justice. The letter further placed on record that the Leader of the Opposition tried to speak against this undemocratic act of the Mayor but the Mayor did not allow him to do so. It also placed on record that the Leader of the Opposition condemned the act of the Mayor and that he was taking part in the voting process under protest. In his reply, the Mayor Shri Vikas Thakre did not deny the receipt of the letter but did not deal with the contents thereof. It was further the petitioners case that at about 7.00 PM on 29.3.2003, while the meeting was in progress, all the petitioners addressed identical representations to the Mayor, placing on record that some members from the party of the Mayor had shouted slogans and the Mayor had adjourned the meeting for ten minutes after which the meeting was convened again and the petitioners were asked to go out of the house for no reason. The letters stated that the suspension was effected for no valid reason and this act of suspension was violative of principles of nature justice and also provisions of the Act. By these letters, the petitioners called upon the Mayor to withdraw their suspension unconditionally and allow them to vote in the election, failing which it would be clear that they had been suspended to create an artificial majority. As regards these letters, in his reply, the Mayor Shri Vikas Thakre stated that the letter which is annexed to the petition at Annexure - E written by one of the petitioner appeared to have been issued at 7.00 P.M. and by that time, the election process was almost coming to an end. It was the contention that the letter was of no consequence and obviously was an after thought. He further stated that the contents of the said letter were far from truth and that the allegations made in the said letter were denied.

(h) It is also not in dispute that on 29.3.2003, after excluding the 30 petitioners from the election process, by means which are mentioned hereinabove, the Mayor proceeded to hold the further proceedings pertaining to the election. From the draft minutes prepared by the Secretary it appears that nominations were received and ultimately 16 persons were declared elected and the meeting was declared closed at about 8.15 P.M.

5. The present petition came to be filed by the 30 petitioners who had been deprived of their vote on 29.3.2003. The main prayers in the petition was for a declaration that the action of the Mayor in adjourning the meeting dated 25.3.2003 without the consent of the majority of the House was illegal and null and void and consequently the adjourned meeting held on 29.3.2003 was also null and void, contrary to law and of no legal effect and that the proceedings of the meeting dated 29.3.2003 was void and ultra vires the provisions of the City of Nagpur Corporation Act, 1948 and the business transacted therein i.e. the elections to the Standing Committee was illegal and without any legal effect. The further declarations sought was that the action of the Mayor - Respondent No.2 in directing the petitioners and two other Corporators to withdraw from meeting was illegal and without any jurisdiction and for a further declaration that 30 Councillors were illegally disqualified from the said meeting. In regard to these declarations, writ of Mandamus, Certiorari or any other appropriate writ or direction was sought.

6. When the writ petition first came up before us on 1.4.2003, ad interim relief was granted by this Court in terms of prayers (E) and (F) and effectively all the proceedings of the meeting dated 29.3.2003 were stayed and respondents No. 5 to 20 were restrained from acting as Members of Standing Committee. We had granted stay to the election of the Chairman of the Standing Committee which was likely to be held on 3.4.2003 and had restrained the respondents from constituting any committee from the members elected on the Standing Committee in the meeting dated 29.3.2003. We had also called for records and proceedings of the meetings dated 25.3.2003 and 29.3.2003. We had further put the parties to notice that the petition may be heard and disposed of finally at the admission stage itself.

7. Subsequently, to our aforesaid order dated 1.4.2003, the matter was listed on 7.4.2003 and adjourned to 24.4.2003. In the meanwhile, the Municipal Commissioner, Nagpur Municipal Corporation affirmed an affidavit on 21.4.2003. On 24.4.2003, the Mayor Shri Vikas Thakre affirmed his affidavit-in-reply and the same came to be filed in this Court. The original record which was produced in the Court on 24.4.2003 was taken into custody of this Court and the Additional Registrar (J) was directed to prepare and index and keep the documents under seal. The State was also directed to produce the Station diary of Kotwali Police Station, Nagpur, from 25.3.2003 to 30.3.2003 and parties were allowed to take inspection of the Police Station diary entries. Ad interim reliefs were continued. On that date, the matter was also heard at some length. Two preliminary objections were raised on behalf of Respondent No.2, as under :

(a) that the petitioners had an alternate remedy under Sections 64-A, 407 and 411 of the City of Nagpur Corporation Act, 1948; and

(b) That the petition ought not to be entertained since the same involved disputed questions of facts. The matter was then adjourned to 30.4.2003.

8. Today, i.e. on 30.4.2003, the original record which was kept in the sealed cover was opened and same, inter alia, record contained the following relevant original documents :

(a)The original Minute book of the N.M.Council Meeting from 5.3.2003 onwards.

(b) Three steno diaries.

(c) Attendance register of Corporators.

(d) Transcripts in Marathi from the steno notes and the draft minutes prepared by the Secretary on the basis of the same. We were also handed over three relevant extracts of the Station diary entries, two of which were made on 25.3.2003 and one of which was dated 29.3.2003 and the originals of these letters given by the Mayor to the A.C.P. There were some other documents which are not very relevant for our purpose, therefore, the same are not referred to specifically.

9. In pursuance of our directions, an affidavit was also filed by the State of Maharashtra which was added as a party respondent to explain the stand of the Government as regards the arguments relating to the existence of alternative remedy available to the petitioners under Sections 64-A, 407 and 411 of the City of Nagpur Corporation Act, 1948. In the affidavit filed on behalf of the Government, by an Officer authorised by the Urban Development Department of the Government of Maharashtra, the only stand taken was that the Commissioner, N.M.C. had not made any reference to this respondent as per Section 64-A of the Act. It was further stated that if any person or institution approaches the Government under the provisions of Sections 407 and 411 of City of Nagpur Corporation Act, 1948, the Government will consider the matter on its own merit and take appropriate decision. The only thing worthy of note in this affidavit is that the Government expressed no desire to take suo motu cognizance of the dispute, the nature of which was placed before them by serving a copy of petition and all replies thereto at the office of the Government Pleader.

10. In this background, we now deal with the preliminary objection raised by Respondent No.2 relating to the existence of an alternate remedy and the non pursuance thereof by the petitioners. In brief, it was the submission of Respondent No.2 that alternate remedies were provided under the Scheme of City of Nagpur Corporation Act, 1948 and these remedies were efficacious. To understand better, the contentions of Respondent No.2 in this regard, it would be necessary to reproduce the three sections of the Act relied upon by the counsel for respondent No.2, which are as under :

Section 64-A. Commissioner to execute resolutions.

The Commissioner shall execute all the resolutions made by the Corporation, the Standing Committee or any other Committees:

Provided that the Corporation, the Standing Committee or any other Committee, as the case may be, shall obtain and take into consideration the remarks of the Commissioner, before making any resolution:

Provided further that, if the Commissioner is of the opinion that the resolution passed or decision taken by the Corporation or any of the Committee is against the provisions of any law for the time being in force or may lead to wastage of municipal funds or seeks to divert funds allocated for any of the obligatory duties of the Corporation to some other purpose or is against the policy of the State Government, he may, before implementing the decision seek the direction from the State Government and the State Government, shall within forty-five days of the receipt of such reference made by the Commissioner issue directions to the Commissioner whether such decision should be implemented or not and the directions issued by the State Government shall be binding on the Corporation, or the concerned Committee, as the case may be.

Section 407. Power of State Government to suspend any resolution or order.

(1) If the State Government is of opinion that the execution of any resolution or order of the Corporation or of any other authority or officer sub-ordinate thereto or the doing of any act which is about to be done or is being done by or on behalf of the Corporation, is not in conformity with law or with the rules or by-laws made thereunder, or is likely to lead to a breach of the peace or to cause injury or annoyance to the public or to any class or body of persons, or is likely to cause waste of or damage to Municipal funds, the State Government may, by order in writing, suspend the execution of such resolution or order or prohibit the doing of any such act.

(2) A copy of such order of the State Government shall be sent to the Corporation by the Government.

(3) On receipt of a copy of the order as aforesaid, the Corporation may, if it is of opinion that the resolution, order or act is not in contravention or excess of the powers conferred by any law for the time being in force, or the execution of the resolution or the doing of the act is not likely to cause waste of or damage to Municipal funds, make a representation to the State Government against the said order.

(4) The State Government may, after considering the said representation, either cancel, modify or confirm the order passed by it under sub-section (1) or take such order, action in respect of the matter as may in the opinion of the State Government be just or expedient having regard to all the circumstances of the case.

Section 411. Control of the State Government.

(1) The State Government may, at any time, for the purpose of satisfying itself as to the legality or propriety of any order passed by the Commissioner in exercise of the powers conferred by this Act, or as to the regularity of the proceedings of any meeting of the Corporation or a Standing Committee, held in pursuance of the provisions of this Act, call for and examine the record of any case pending before or disposed of by the Commissioner, the Corporation or a Standing Committee, and may pass such order in reference thereto as it thinks fit:

(2) If the Commissioner is of the opinion that any action likely to be taken by the Corporation, the Mayor, the Deputy Mayor is against the policy of the State Government then the Commissioner shall, as soon as possible, send a report thereof to the State Government.

11. As regards Section 64-A of the City of Nagpur Corporation Act, 1948, the same pertains to the power of the Commissioner to seek a direction from the State Government if he is of the opinion that any resolution passed or decision taken by the Corporation or any of the Committee of the Corporation is against the provision of a law for the time being in force or may lead to wastage of Municipal funds or against the policy of the State Government. In the present case, the Municipal Commissioner is a party before us. He has filed an affidavit in which he supports the case of Respondent No.2. It is obvious that the Municipal Commissioner has not exercised his power under Section 64-A of the Act and since he nowhere states that the resolution or decision taken were illegal. Section 64-A is thus not resorted to and is not a remedy available to the petitioners.

12. As regards Section 407, the Counsel for the petitioners relied upon a Division Bench judgment of this Court in the case of Ashraf Yunus Motiwala vs. State of Maharashtra, reported in 2000 (4) Mh.L.J. 13. In the said case, the Division Bench of this Court interpreted Section 451 of the Bombay Provincial Municipal Corporation Act, 1949, which is para materia with the present Section 407 of the City of Nagpur Corporation Act, 1948 and concluded that Section 451 of the Municipal Corporations Act sets out powers of the State Government to suspend or rescind any resolution or order etc. of the Corporation or other authority in certain cases. The said section did not confer upon the State Government powers to challenge election proceedings to any of the Committees of the Corporation. This aspect ofs the matter has been dealt with in para 11 of the judgment and for convenience, the same is reproduced as under :

"11. Section 451 of the Municipal Corporations Act sets out powers of the State Government to suspend or rescind any resolution or order etc. of the Corporation or other authority in certain cases. This section does not specify the State Governments power to set aside the elections to any of the committees of the Corporation and the word "resolutions or order of the Corporation or any other authority" cannot be equated with the election proceedings and, therefore, under the said section the State Government does not have the powers to deal with the challenge against the election proceedings to any of the committees of the Corporation. There is no doubt that the election to any of these committees or sub-committees can be challenged by filing a civil suit under section 9 of the Civil Procedure Code as the said remedy is not impliedly or expressly barred under the provisions of the Municipal Corporation Act. At the same time availability of remedy under Section 9 of the Civil Procedure Code by itself will not operate against the petitioners to approach this Court in writ proceedings by invoking Article 226 of the Constitution as the petitioners have the remedy to elect a remedy from amongst the remedies available and choice of one of the remedies is at the discretion of the party concerned. Having exercised one of such remedies the party is debarred from resorting to the other remedy subsequently that is after being unsuccessful in the earlier proceedings. At the same if the petition involves disputed questions of facts, it requires to be dismissed at the threshold and we are satisfied that no such disputed facts are involved in the present petition regarding the issues under consideration. We, therefore, hold that the preliminary objections regarding the maintainability of this petition under Article 226 of the Constitution cannot be sustained."

13. The position as regards Section 411 of the Act, however, is different. In the case of Ashraf Yunus Vs. State of Maharashtra, the Court did not consider any provision akin to Section 411 of the Act. On the plain reading of Section 411, the State Government, inter alia, has power to satisfy itself about the regularity of the proceedings of any meeting of the Corporation. This power is in addition to the power of the State Government to satisfy itself as to the legality or propriety of any order passed by the Commissioner in exercise of the powers conferred by the Act.

14. The main contention of the petitioners was that the term "regularity of the proceedings" must be given a restricted meaning and would not include "legality or propriety". The argument was that the words "legality or propriety" had been used only in relation to orders passed by the Commissioner and a different word "regularity" was used in relation to the proceedings of a meeting. It was suggested that the word "regularity" should be read down so as not to include "legality or propriety". It was further argued that for the purpose of satisfying itself, the section empowered the State to call for and examine the record of "any case pending before or disposed of by the Commissioner, the Corporation or a Standing Committee". It was suggested that this would mean that there should be a case in the nature of a quasi judicial proceedings pending or disposed of by the Commissioner, Corporation or Standing Committee and unless such "case" is pending or disposed of, the power under Section 411 cannot be exercised. We are unable to agree with the submissions of the learned counsel for the petitioners in this regard. We have noted that under the proviso to Section 411 of the Act an order can also be varied or reversed. It is quite possible that such an order may have been passed during the proceeding or a meeting of the Corporation. We are also not inclined to hold that the word "regularity" in respect of proceeding must exclude the "legality or propriety" of any order passed in the course of such proceedings. It is obvious that any illegal or improper order passed in the course of any proceeding could render the proceedings of the meeting itself irregular. In fact, we hold that the power of the State Government to call for and examine the record of any case pending or disposed of by the Commissioner, Corporation or the Standing Committee is an expression wide enough to enable the Government to call for and examine the record of any proceeding pending before or disposed of by the Commissioner, Corporation or standing committee. This interpretation is necessary for a harmonious construction as otherwise, the State Government may not be in a position to satisfy itself about the regularity of the proceeding of the meeting of the Corporation or Standing Committee held in pursuance of the provision of this Act. We feel that the State Government under Section 411 of the Act could have in law, exercised the jurisdiction under Section 411 to satisfy itself about the regularity of the proceeding in the meeting of the Corporation held on 25.3.2003 and 29.3.2003. But the fact remains that the State Government did not do so and even after an opportunity was given by this Court to make its stand clear, the State Government shows no inclination to suo motu exercise its jurisdiction under Section 411 of the Act.

15. Be that as it may, we cannot lose sight of the fact that it is a undisputed fact that Respondent No.2 - Mayor Vikas Thakre belongs to Congress I party. The present State Government is ruled by a coalition in which the Congress I is a partner. The Chief Minister of the State is from the Congress I. The matter in question has political overtones. The petitioners, who were suspended and thus prevented from casting their vote were belonging to BJP group and in the circumstances, we feel that the alternate remedy under Section 411 would not be a effective and efficacious remedy and it would be a mockery of justice if at this stage, the petitioners are asked to first exhaust their alternate remedy by approaching the State Government of which one of the principle constituent is the party to which Respondent No.2 admittedly belongs.

16. The learned advocate for respondent No.2 cited two judgments of the apex Court including the judgment in the case of Dhanyalakshmi Rice Mills v. Commissioner of Civil Supplies, and Sheela Devi v. Jaspal Singh, , to canvass the proposition that the High Court should not normally exercise writ jurisdiction when an alternate statutory remedy exists. We are not unmindful of this proposition to law. However, it will be sufficient to say that in several case, the apex Court has laid down that the non exercise of power under Article 226 of the Constitution is a rule of convenience and not a rule of law. It is a self imposed restriction on its jurisdiction under Article 226 of the Constitution. In a case of Whirlpool Corporation vs. Registrar of Trade Marks, and Harbanslal Saharia vs. Indian Oil Corporation, reported in 2002 (9) Scale 724, the apex Court carved out three contingencies where writ jurisdiction will be exercised inspite of availability of the alternate remedy. The three contingencies mentioned in these judgments are :

(a)where the writ petition seeks enforcement of any of the Fundamental Rights;

(b)where there is failure of principles of natural justice; or

(c)where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged.

Needless to say that if any of these three contingencies are in existence, the High Court would prefer to exercise its jurisdiction under Article 226 of the Constitution. These contingencies are not exaustive and others can exist. In our view, one of such contingency would be forcing the petitioners to appeal from ceaser to ceasures wife. In this regard, observations made by the apex Court in the case of Ram and Shyam Co. v. State of Haryana, would bare reference. While dealing with the question of alternate remedy, in para 9, the apex Court dealt with the issue of the effectiveness of an alternate remedy of approaching the State Government where the impugned order had been passed at the behest of the Chief Minister of the State. The observations of the apex Court in para 9 are reproduced hereinabove for convenience :

"9. Before we deal with the larger issue, let me put out of the way the contention that found favour with the High Court in rejecting the writ petition. The learned single Judge as well as the Division Bench recalling the observations of this court in Assistant Collector of Central Excise v. Jainson Hosiery Industries rejected the writ petition observing that the petitioner who invokes the extraordinary jurisdiction of the court under Article 226 of the Constitution must have exhausted the normal statutory remedies available to him. We remain unimpressed. Ordinarily it is true that the court has imposed a restraint in its own wisdom on its exercise of jurisdiction under Article 226 where the party invoking the jurisdiction has an effective, alternative remedy. More often, it has been expressly stated that the rule which requires the exhaustion of alternative remedies is a rule of convenience and discretion rather than rule of law. At any rate it does not oust the jurisdiction of the Court. In fact in the very decision relied upon by the High Court in The State of Uttar Pradesh v. Mohammad Nooh 1958 SCR 595: (AIR 1958 SC 86) it is observed that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It should be made specifically clear that where the order complained against is alleged to be illegal or invalid as being contrary to law, a petition at the instance of person adversely affected by it, would lie to the High Court under Article 226 and such a petition cannot be rejected on the ground that an appeal lies to the higher officer or the State Government. An appeal in all cases cannot be said to provide in all situations an alternative effective remedy keeping aside the nice distinction between jurisdiction and merits. Look at the fact situation in this case. Power was exercised formally by the authority set up under the Rules to grant contract but effectively and for all practical purposes by the Chief Minister of the State. To whom do you appeal in a State administration against the decision of the Chief Minister? The cliche of appeal from Caesar to Caesars wife can only be bettered by appeal from ones own order to oneself. Therefore this is a case in which the High Court was not at all justified in throwing out the petition on the untenable ground that the appellant had an effective alternative remedy. The High Court did not pose to itself the question, who would grant relief when the impugned order is passed at the instance of the Chief Minister of the State. To whom did the High Court want the appeal to be filed over the decision of the Chief Minister? There was no answer and that by itself without anything more would be sufficient to set aside the judgment of the High Court."

17. The other preliminary objection raised by respondent No.2 is that the petition involves several disputed questions of fact. In this respect, we firstly agree that there are two different versions before us as to what happened in the meetings dated 25.3.2003 and 29.3.2003. The two versions are partly irreconcilable. We, however, feel that if the petition is required to be allowed on the version given by Respondent No.2 then the question of disputed questions does not arise. Needless to say that we will be testing the versions of Respondent No.2 on the footing of his own explanation, the Municipal records and the police record which has been placed before us.

18. Having dealt with the preliminary objections, we now advert to the merits of the case. The factual contention of Respondent No.2 has already reproduced by us hereinabove. The contention canvassed on behalf of the petitioners is essentially two fold.

(a)That the action of Respondent No.2 in adjourning the meeting dated 25.3.2003 was ultra vires Section 27 of the City of Nagpur Corporation Act, 1948. Insofar as the said meeting which had been called by notice dated 17.3.2003 for the specific and sole purpose of conducting an election to the Standing Committee was adjourned without obtaining the consent of the majority of the Councillors present, which was the requirement of Section 27 of the Act. The said adjournment was granted for the reason which was extraneous and motivated by the fact that the Congress and its allies were in minority and were sure to lose the election on 25.3.2003.

(b)That the decision of Respondent No.2 - Mayor Shri Vikas Thakre in the meeting dated 29.3.2003 either to suspend and/or withdrawal of the petitioners from the days meeting and thereby depriving them of their vote was an act which was deliberate, motivated and malafide and it was further ultra vires to Section 32 of the Act, as the order of suspension/ withdrawal was not passed on the basis of any conduct of the petitioners on the date of the meeting but was infact passed for alleged conduct of the petitioners at the time of earlier meeting held on 25.3.2003.

As regards the first proposition, we have perused the draft minutes relating to the meeting dated 25.3.2003 said to have been prepared by the Secretary of the Municipal Corporation. Though, there is a serious grievance made regarding genuineness of these minutes and though no affidavit of the Secretary to the Municipal Corporation has been filed to indicate that these minutes reflect the correct factual position, it is clear from the record that on the commencement of this meeting, condolences were expressed for the deaths of the Poet Suresh Bhatt, who died on 14.3.2003 and mother-in-law of a Corporator by name Sarladevi Chhadi, who died on 12.2.2003 and 24 unnamed Kashmiri Pandits, who were killed in Jammu & Kashmir on the date which is not specified. The minutes indicate that Poet Shri Suresh Bhatt and mother-in-law Sarladevi were died much prior to even when the notice was given for the meeting on 25.3.2003. Inspite of this fact, it is not disputed that the deaths which were prior to the date of notice, the passing of condolence resolutions were not a matter of the agenda. The only matter on the agenda was an important one which was the holding of an election to the Standing Committee. From the minutes it appears that after the condolence motions were passed, the Leader of the Congress Party Shri Kumbhalkar proposed that in order to pay respect to the Poet Shri Suresh Bhatta and Kashmiri Pandits, who had died, the meeting should be stopped there. The minutes show that immediately on receipt of this request, Respondent No.2 - Mayor Shri Vikas Thakre, relying upon the request made by the Leader of the Ruling Party and upon what is mentioned as the mood of the meeting, adjourned the meeting to 29.3.2003. It is necessary at this stage to reproduce Section 27 of the City of Nagpur Corporation Act, 1948, which is in the following terms :

"Section 27. Adjournment.

Any meeting of the Corporation may, with the consent of a majority of the Councillors present, be adjourned to any other date; but no business other than that left over at the adjourned meeting shall be transacted at the next meeting.

A notice of such adjournment posted in the municipal office on the day on which the meeting is adjourned shall be deemed sufficient notice of the next ensuing meeting."

A glance at the minutes indicate that there was no attempt whatsoever to obtain the consent of the majority of the Councillors present. Nothing in this respect is mentioned in the draft minutes placed by Counsel for the Corporation before us. The version in this regard given by the Mayor also does not indicate that he has made any attempt to secure the consent of the majority. What is stated in his affidavit in reply is that the meeting was adjourned after "taking senses of all the members in general, and in particular, after consulting the leader of the ruling party, who admittedly represented majority of the Corporators, who were present in the meeting on 25.3.2003". We find that there is nothing on record to indicate that the Leader of the ruling party infact represented the majority of the Corporators, who were present in the meeting dated 25.3.2003. In fact the contention of the petitioners is that the ruling party and their alliance has lost its majority. The absence of even an attempt being made by Respondent No.2 in seeking the consensus of the majority of the Corporators who were present in the meeting dated 25.3.2003 for adjournment, which was enjoined upon him by Section 27 of the Act, leads us to a finding that his decision to adjourn the meeting on 25.3.2003 was illegal and ultra vires the provisions of Section 27 of the Act. The fact that this action of Respondent No.2 - the Mayor lead a riot and indeed the Corporators started breaking flower pots, chairs, including the chair of Mayor and Deputy Mayor, mike systems and also resulted in ransacking of the House is the clear indicator that the decision of the Mayor was detested by large number of Corporators.

19. The decision to adjourn the meeting could have been taken after the Mayor had taken the consent of the majority of the Corporators present. Indeed such action of Mayor, which we find to be illegal, appears to have been taken for the sole reason of avoiding election to the Standing Committee on 25.3.2003. It also appears from the minutes that this action was taken only at the request of the leader of the ruling congress party, without consulting the Leader of the Opposition, without putting the matter of adjournment to vote as any fair Presiding Officer ought to have done.

20. As regards the meeting dated 29.3.2003, since the violation alleged to Section 32 of the Act, it is necessary to reproduce Section 32, which is as under :

Section 32. Prevention of order.

(1) The presiding authority shall preserve order and may direct any Councillor whose conduct is in his opinion disorderely to withdraw immediately from the meeting of the Corporation; any any Councillor so ordered to withdraw shall do so forthwith and shall absent himself during the remainder of the days meeting; and if he is ordered a second time within fifteen days to withdraw, the presiding authority may suspend him for any period not exceeding fifteen days and he shall absent himself from meeting accordingly :

Provided that, the presiding authority may remit the suspension on receiving apology to his satisfaction from the Councillor under suspension :

Provided also that suspension shall not prevent any Councillor from serving on any committee.

(2) The presiding authority may, in case of grave disorder arising in the meeting, suspend the meeting for a period not exceeding three days.

(3)If any person who has been ordered to withdraw, unlawfully remains in the meeting, the presiding officer may take such steps as he may deem fit to cause him to be removed."

21. The contention of the petitioners is that the action of Respondent No.2 - Mayor Vikas Thakre in suspending the petitioners and asking them to withdraw was ultra vires Section 32 because the same was not done for any act or breach of order during the proceeding itself but was in fact done for acts which had taken place after the conclusion of previous meeting dated 25.3.2003. Our attention was drawn to a letter admittedly written by the Mayor to ACP, Kotwali Police Station, who was present in the premises on 29.3.2003 and which letter was handed over to the said Police officer at about 5.00 PM on 29.3.2003. A glance at this letter indicates that the Mayor addressed a letter to the ACP, Kotwali Police Station, informing him that 30 members who were named in the letter have been suspended ("Nilambit") from the meeting dated 29.3.2003 for causing damage and misconduct in the meeting dated 25.3.2003 (todfode va gairvartanu). The story given by Respondent No.2 - Mayor as regards this letter is that his P.A. prepared a letter and placed it before him for his signature and since he was busy with maintaining order, he did not notice the contents of the said letter. When some order was restored in the House, he wanted to see the letter. He claims that his P.A. had informed him that the letter had been handed over to Shri Rule, the A.C.P. He claims that his P.A. had mistakenly written the date 25.3.2003 instead of 29.3.2003. He claims on noticing the mistake he had directed his P.A. to send a corrigendum to the said letter, bring to the notice of the ACP that the mention of date 25.3.2003 was by mistake and it should be read as 29.3.2003. Accordingly a letter dated 29.3.2003 was issued immediately to the ACP on 29.3.2003, the copy of which is annexed to the reply. A copy of the second letter which is dated 29.3.2003 is signed by Respondent No.2 - Mayor Shri Vikas Thakre asking the ACP to read the date 25.3.2003 in his first letter as 29.3.2003. Two aspects of the explanation given came to our minds. The first was that neither the name of P.A., who is said to have committed such a mistake has been given nor the affidavit of any such P.A. admitting such mistake has been filed to support this version of the Mayor Shri Vikas Thakre. Secondly, neither in the affidavit of the Mayor nor the acknowledgment of the second letter dated 29.3.2003 said to have been given to ACP, there is any mention about the time at which such corrigendum was given to the ACP. The advocate for the Councillors had in an earlier hearing seriously contended before us that Mayor Shri Vikas Thakre was trying to mislead the Court and had prepared a false record. We had therefore, asked the State to produce the original case diary for the period from 25.3.2003 to 30.3.2003 of the Kotwali Police Station. Accordingly, the said record has been placed before us. We find that as regards the request made by the Mayor vide his letter dated 29.3.2003, N.C. Entry has been made at the police station at 10.05 P.M. at Serial No.66. A Perusal of this entry indicates that the same was made at the behest of the A.C.P. This entry makes interesting reading and the translation of the relevant part thereof is as under :

"At this time, a report has been filed by the ACP today i.e. on 29.3.2003. A meeting had been called at the Town Hall for electing 16 members of the Standing Committee. The meeting started at 1.45 P.M. Before the voting, members of the ruling Congress Party contended that unless action is taken against the Corporators, who had caused breakages and used bad words during the meeting dated 25.3.2003, they would not allow the business of the meeting to proceed. After sometime two Corporators were announced to have been suspended. Similarly, the Corporators belonging to B.S.P. expressed their protest and did not participate in the voting. Thereafter voting started at 7.00 P.M. and was completed by 7.30 P.M. Counting started at 7.35 P.M. ...... The meeting ended at 8.15 P.M."

We bear in mind that the version given by the A.C.P. who was personally present in the House and was, therefore, independent eye witness to what happened, though inaccurate insofar as the number of persons suspended, seems to support the petitioners case and does not in any way support the version given by respondent No. 2 - Mayor. It appears that even at 10.05 PM, the ACP was not aware that the suspension was because of occurrences which occurred on 29.3.2003. In his report, the obstructionists attitude of Congress Corporators is clearly mentioned and reason for such obstruction is mentioned as the breakages and bad words used in the meeting dated 25.32.2003. We will only add that the transcripts of the steno notes indicate that the Congress members had raised the question of taking action against the persons who had indulged in breaking in the meeting dated 25.3.2003.

22. In this view of the matter, we left with the feeling that the Mayor realised latter that his action of first suspending and then asking the petitioners to withdraw from the meeting and depriving them of their valuable right of casting their vote could have been challenged on the ground that the same was taken for reasons which could be said to be ultra vires Section 32 of the Act, and therefore, he changed his stance and attempted to create a record to indicate that the mention of dated 25.3.2003 was a mistake. There are also other indications to show that the Mayor Vikas Thakre belatedly changed the original reason for asking the petitioners to withdraw. In the first letter dated 29.3.2003, he has referred to the word "todfod". This would normally translate into the word "breakage". It is common ground that the breakage of the flower pots, chair of the Mayor and Deputy Mayor etc. infact took place only on 25.3.2003 and there was no breakages during the meeting dated 29.3.2003. The Mayor forgot about this aspect of the matter when writing the second letter to the ACP for correcting the date. He also did not choose to correct the word "Nilambit" which translates as "suspended" which he now admits was a mistake. Presently the case of Respondent No.2 is that he did not suspend the petitioners but merely asked them to withdraw. The counsel for respondent No.2 sought to justify the use of word "todfod" on the ground that in the meeting dated 29.3.2003, two pages from the attendance register were torn. He stated that the Mayor ought to have used the word "fadfod". We believe that there is no such word in Marathi language. Besides, the explanation sought to be given by the counsel is nowhere given by the Mayor in his reply. It is our impression that an attempt was made by the Mayor - Shri Vikas Thakre to change the original reason as to why he has passed the order under Section 32 of the Act. We also find that original reason on the basis of which the petitioners were suspended and/or asked to withdraw, were untenable and ultra vires Section 32 of the Act. The disorder which was made the cause for passing of the withdrawal orders was not caused during the meeting dated 29.3.2003.

23. We notice from the reply of Respondent No.2 that he has not been able to specify any individual act of disorder by any of the 30 persons from the BJP group asked to withdraw. It appears from the reply that the list of names of persons directed to withdraw was infact drawn out by the Secretary and not the Mayor, who was required by Section 32 of the Act to form his own opinion about the nature of disorder before issuing withdrawal orders.

24. We also noticed that had there been grave disorder in the meeting dated 29.3.2003, the Mayor had an alternate remedy under Section 32(2) of the Act by suspending the meeting for the period not exceeding three days. If the Mayor could not have controlled the events dated 29.3.2003, he could have adjourned the meeting under Section 32(3) of the Act. When we asked as to why the Mayor did not chose this course as it would have avoided a lop sided election which did not reflect the true will of all the Councillors, the only reply given was that that was a matter of choice of the Mayor into which the Court could look into. We disagree. Any prudent and fair officer presiding over the meeting would have immediately realised that by asking a large group of Corporators from one party to leave the meeting would defeat the very fairness of the election. If at all there was grave disorder, he would have adjourned the meeting and allow the tempers to cool. The impression we get is that Mayor Vikas Thakre, Respondent No.2 infact created a situation by his action on 25.3.2003 and 29.3.2003 which created disorder and the fraying of tempers by causing the Corporators to think that they had not been treated unfairly. We find that the action of Respondent No.2 - the Mayor Vikas Thakre in adjourning the meeting dated 25.3.2003 and asking 30 members of the B.J.P. group to withdraw, smacks of unfairness and in any case derailed the fair democratic process of the election to the standing committee of the Nagpur Municipal Corporation.

25. In this view of the matter, we make the rule absolute in terms of prayers (A), (B), (C) and (D). We direct that the steps be taken to hold the elections to the Standing Committee of Municipal Corporation, Nagpur, in accordance with law.

26. Before concluding, we would like to state that the impugned actions which we have found to be illegal, were also in blatant violation of the rules of fairness and were done by an officer, who was enjoined upon with a duty to act properly and fairly. The impugned acts resulted in tearing of the democratic fabric and wastage of public money and property. The person held responsible must be accountable. In the facts and circumstances, we impose heavy costs on Respondent No.2 the Mayor Shri Vikas Thakre. We direct that Respondent No.2 - The Mayor Shri Vikas Thakre will pay the costs quantified at Rs.50,000/-. The costs to be paid will not be reimbursed to Respondent No.2 from the Municipal funds. Costs will be deposited within three weeks from today in the Court. On deposit being made, each of the petitioners will be entitled to Rs.1,000/- therefrom and the balance may be withdrawn by the Commissioner, Nagpur Municipal Corporation to compensate for damage suffered to public property.

27. The attendance register and the Minute book be returned to the Municipal Council and other original documents be kept in the sealed cover along with the record of this case.