Vilas S/O Supdaji Shelke vs Commissioner, Akola Municipal ...
2007 Latest Caselaw 850 Bom

JUDGMENT

A.H. Joshi, J.

1. Rule. Rule is made returnable forthwith and is called for final disposal by consent.

2. Heard.

3. The petitioner is a contender for the seat of Leader of Opposition under Section 19-IAA of the Bombay Provincial Municipal Corporations Act, 1949 in the respondent No. 1-Municipal Corporation.

4. Case proceeds on certain admitted background, namely:

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(a)    Names of parties.             Party            Pre-poll alliance.
                                     strength. 
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1. Indian National Congress [INC]     19              [INC and NCP]
2. Nationalist Party [NCP]            11              [INC and NCP]
3. Bhartiya Janata Party [BJP]        11              [BJP and Shivsena]
4. Bharip-Bahujan Mahasangh           10              No alliance
5. Shiv Sena                          07              [BJP and Shivsena]


8. Maharashtra Navninnan Sena         01
9. Muslim League                      01              No alliance



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(b) There was a pre-poll alliance between (i) Indian National Congress and the Nationalist Congress Party; and (ii) Bhartiya Janta Party and Shiv Sena, as parties for Corporation election.

(c) No other parties had a pre-poll alliance.

(d) Petitioner raised his claim for being recognized as a Leader of Opposition. The Leader of Bhartiya Janata Party-Sanjay Babulal Badone has, by his letter dated 17th March, 2007, requested for recognizing the petitioner as a Leader of Opposition.

(e) Shiv Sena Corporators supported petitioner's claim. By letter dated 30th April, 2007, signed by seven Councillors belonging to Shiv Sena stating that Santosh Anasane is their leader and Santosh Anasane has, by a separate letter, requested the Mayor to recognize the petitioner as a Leader of Opposition.

(f) According to Commissioner's letter dated 20th March, 2007, Sanjay Badone is the Leader of Bhartiya Janata Party who has given a letter proposing the name of the petitioner.

(g) Respondent No. 10 raised his claim for recognition as a Leader of Opposition, and his claim was supported by one independent candidate, namely Rupeshkumar Jugalkishor Jaiswal.

5. The respondent No. 2 has held that two contenders had equal numerical support, i.e., Bhartiya Janata Party-11, and respondent No. 3, 10-Bharip Bahujan Mahasangh + 1 - Independent : 11.

6. Therefore, according to the respondent No. 2, it was a situation of both contenders having equal numerical strength. The respondent No. 2, therefore, in his subjective decision and power, recognized the respondent No. 3 as a Leader of Opposition.

7. It would be most convenient to refer to the contentions of respondents by quoting in summary from their Returns which are stated in Paras 13 to 19 of the Return of respondent No. 2 and as orally advanced, which are as below:

(a) It is disputed that the petitioner is elected as a Leader of Opposition.

(b) Sanjay Babulal Badone is not the leader of Bhartiya Janata Party Councillors.

(c) Section 19-IAA of the Bombay Provincial Municipal Corporations Act, 1949, does not provide that the alleged Leader of a party can issue such recommendation.

(d) Letter of request by Santosh Anasane as a Leader of Shiv Sena is untenable, as no such letter can be given by Santosh Anasane.

(e) Since Sanjay Badone is not the leader of Bhartiya Janta Party, the Commissioner's letter dated 20th March, 2007 does not support the petitioner and the Municipal Commissioner has no power to issue any such recommendation.

(f) Section 19-IAA does not contemplate that the opposition party can elect their leader, and that the leader, if any, so elected, shall alone be recognized as a Leader of Opposition.

(g) The Mayor has to exercise his wisdom and without falling into the political thicket, recognize a person as a Leader of Opposition which decision by Mayor is beyond review or justiciability.

(h) The respondent No. 3 was recognized by the Mayor being supported by numerical, i.e., Bharip Bahujan Mahasangh's 10 and Rupeshkumar Jaiswal, the independent, which is numerically equal to the strength of Bhartiya Janata Party, and this recognition is, therefore, perfectly within his power. He is not acting judicially or quasi-judicially and has exercised his prerogative which is beyond judicial scrutiny.

8. Learned Advocate for the petitioner placed reliance on various Judgments. It shall suffice to refer to six amongst them. Those are as follows:

(a) Vishnu Shivram Mehere v. City of Akola Municipal Corporation and Ors. 2003(5) Mh.L.J. 522, (b) Rohidas Shankar Patil v. Mayra Gilbert Mendosa, Mayor and Ors. 2003(4) Mh.L.J. 520, (c) Abdul Rashid s/o Abdul Sattar and Ors. v. Vikas s/o Ratanlal Jain and Ors. 2003(2) Mh.L.J. 902, (d) Sunil s/o Ramdas Kotkar and Ors. v. State of Maharashtra and Ors. , (e) Anees Khalil Momin v. The Commissioner, Municipal Corporation for the City of Bhiwandi, Nizampur and Ors. 2005(5) Mh.L.J. 10 : 2005(1) All MR 1, and (f) Dattatraya Maruti Bawalekar and Ors. v. Pandurang Dagadu Parte and Ors. 1998(2) Mh.L.J. 532]. Learned Advocate for the petitioner has also relied upon various judgments on the question as to how the interpretation of statutes be done and on the question of judicial review.

9. We find that the provisions in this regard should better be referred by quoting Section 19-IAA of the Bombay Provincial Municipal Corporations Act, 1949, which reads as under:

19-IAA. (1) An elected Councillor who is, for the time being, the Leader of the Party in opposition, having greatest numerical strength and recognized 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 to the 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 regulations made in this behalf by the Corporation.

and the Maharashtra Local Authority Members' Disqualification Act, 1986.

10. We find that the above quoted provision, on its plain reading, prescribes two stages in decision-making as below:

Stage one - The Mayor has to observe following process:

(a) To ascertain the parties who are having a pre-poll alliance and treat those as one party.

(b) To undertake the function of arraying the parties in opposition [or parties having alliance, as the case be] in the numerical chronology in a descending order.

(c) If there be only one party having highest numerical strength, a leader of such party will have to be identified by seeking nomination/election from members-councillors of such party unless it is already done.

(d) Recognize such person as a Leader of Opposition.

Stage two - when more than one political parties have same numerical strength, this stage crops up. It involves following stages:

(a) When this eventuality crops up, the Mayor's role changes. In this situation, he has been bestowed with a function of deciding upon a propriety as to which amongst the parties have equal numerical strength.

(b) Norms of this propriety are guided by Explanation to the Sub-section (1) of Section 19-IAA.

(c) Here the Mayor has to have regard to "Status" of the parties having equal numeric strength and then 'choose' one, to the best of his Judgment and then to recognize the leader of party so chosen.

11. In the process, which is involved in the first stage, role to be played by a Mayor is of numerical recognition, i.e., bare arithmetic computation and hence ministerial.

The situation is otherwise, namely when there are more than one parties having same numerical strength, there the Mayor has some role different than the one contemplated in foregoing para.

12. In the second stage, when applicable, the Mayor has a choice of recognizing a member of a particular party and there the jurisdiction of personal judgment as to which amongst the parties of numerical equality should be chosen for recognition of their leader to be a Leader of Opposition has to be exercised, and here creeps in the specialized function of the Mayor.

13. After taking the resume of law as above, now, we have to advert to facts of present case and we will have to find out as to in which amongst the categories, the case at hand falls.

14. For this test, this Court will have to advert to the numerical chronology in the descending order, as stated in para 3 of the petition, which is reproduced in para 4 above with addition of Item No. 13. A bare look thereon reveals as follows:

(a) There was a political alliance between the Indian National Congress and the Nationalist Congress Party. They together, therefore, constitute a ruling party.

(b) Amongst the parties, Bhartiya Janata party, Bahujan Mahasangh and Shiv Sena are the remaining parties in a descending order in numerical strength.

(c) Admittedly, Bhartiya Janata Party has 11 councillors, Bahujan Mahasangh has 10 and Shiv Sena has 7.

(d) Admittedly, there is a pre-poll alliance between Bhartiya Janata Party and Shiv Sena.

(e) Admittedly, there is no pre-poll alliance between Bhartiya Republican Party and Bahujan Mahasangh or with any other party, including independent candidates.

(f) Thus, going by any equation, namely by recognition of pre-poll alliance, Bhartiya Janata Party and Shiv Sena together constitute one party in the Corporation as Opposition Party.

15. Going by the alternate amongst the permutation, Bhartiya Janata Party is a single party having largest numerical strength of corporators, namely 11, while Bharip Bahujan Mahasangh has 10 councillors.

16. In this situation, present case falls in first category where, upon reckoning of the numerical strength, the Mayor has to recognize a leader of such party as a Leader of Opposition which has highest numeric strength. This fact does not permit the Mayor to walk to the second stage as indicated in para 10 above.

17. We find that in order to bring the case within the second category, i.e., where two parties are having equal numerical strength, the Mayor has, on the request of independent candidate - Shri Rupeshkumar Jugalkishore Jaiswal, clubbed him with Bhartiya Republican Party and Bahujan Mahasangh, and thereby brought Bharip Bahujan Samaj Party and one independent on a numerical equality i.e. total of 11 Councillors with the strength of Bhartiya Janata Party when taken solely.

18. Admittedly, when there was no pre-election alliance of the independent candidate-Rupeshkumar Jaiswal with Bhartiya Republican Party and Bahujan Mahasangh, this heterogenetic group, therefore, cannot have the status of "a party."

19. In the aforesaid facts of the case, which are vivid and do not admit any ambiguity in interpretation or allow two opinions of facts, the action of Mayor in recognizing the respondent No. 3 is arbitrary, and mala fide on facts and in law. The respondent No. 3 too admitted in paragraph No. 4 of the reply that due to support of independent candidate Rupeshkumar Jugalkishore Jaiswal, the strength of Bhartiya Republican Party and Bahujan Mahasangh became 11. On this admission too, present is a blatant act of twisting of interpretation of law where no interpretation was at all called for and the provision of law is plain and clear enough and did not warrant any interpretation, nor admit any alternate meaning or interpretation for pre-determined object, by the respondent No. 2.

20. In this background, this Court finds that the argument advanced by the respondent No. 2 that the decision of Mayor is a subjective decision and is not justiciable in the Court is probably an argument advanced optionlessly with no other tangible submission being available, and this submission, therefore, deserves rejection and is so rejected.

21. This Court, therefore, holds that the act of respondent No. 2 challenged in this petition, whereby he had recognized respondent No. 3 as a Leader of Opposition, is a patent disregard of mandatory provisions of law and by way of gross abuse of power. Be it that, as argued by the respondent No. 3, his jurisdiction is of subjective nature, then the conduct of respondent No. 2 compares with Henry Eighth rule and is hit by Wednesbury's principles. In the circumstances, we find that present is seen to be a fit case of blatant disregard of law and politicization of statutory power. We find that present is amongst illustrious cases were the quashing of an erroneous action would not suffice and the Court will have to issue the Mandamus.

22. This Court, therefore, makes the rule absolute in terms of Prayers (ii) and (i) of the petition.

We direct that each amongst the respondent Nos. 2 and 3 shall pay to the petitioner cost which is quantified in a sum of Rs. 5,000-00 (rupees five thousand only) and to the respondent No. 1 in a sum of Rs. 2,000-00 (rupees two thousand only), and suffer own costs.