Narendra S/O Gotu Pardesi vs Mayor, Dhule Municipal ...
2007 Latest Caselaw 659 Bom

JUDGMENT

S.J. Vazifdar, J.

Page 1404

1. Rule. Rule made returnable and heard forthwith.

By an order dated 12.1.2007 the parties were put to notice that the petition was likely to be decided finally at the stage of admission. With the consent of counsel we heard the Petition finally.

2. The petitioner who belongs to the Shiv Sena party has claimed two distinct reliefs. Firstly he has sought an order quashing a letter dated 28.12.2006 addressed by respondent No. 1, the Mayor of the Dhule Municipal Corporation recognising respondent No. 2 as the Leader of the Opposition. Secondly he has sought an order directing respondent No. 1 to recognise him as the Leader of the Opposition of respondent No. 3, Dhule Municipal Corporation.

3. We have granted the first prayer but rejected the second.

We will summarise our approach after setting out Section 19(1)(AA) of the Bombay Provincial Municipal Corporation Act, 1949, which reads as under:

19-IAA. The 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 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, recognize the leader of any 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.

4. It would be convenient at the outset to summarise our approach to the reliefs claimed.

(A) It is admitted by all the Counsel that the Shiv Sena is the party in opposition with the greatest numerical strength and the Leader of the Shiv Sena is therefore entitled to be recognised by the Mayor, respondent No. 1, as the Leader of the Opposition.

(B) (i) In support of the prayer for being recongised as the Leader of the Opposition the petitioner relies upon three letters addressed allegedly by the Shiv Sena party/Office bearers of the party, calling upon respondent No. 1 to recognise him as the Leader of the Opposition.

(ii) The letters however are admittedly not written by or at the instance or even with the approval of the majority of the elected Councillors of the Shiv Sena.

Page 1405

(iii) In Dattabhau s/o Annasaheb Pathrikar v. State of Maharashtra 2007 (5) LJSOFT 100 a Division Bench of this Court held that it is the numerical strength of the Councillors of the largest party in opposition that determines who is entitled to be recognised as the Leader of the Opposition and the Mayor is not entitled to recognise a person as the Leader of the Opposition on the basis of any decision of the party or it's office bearers. Thus in view of this judgment, which is binding on us, the petitioner is not entitled to this relief.

(C) (i) We have however set aside the recognisition by respondent No. 1 of respondent No. 2 as the Leader of the Opposition as respondent No. 2 founded his claim and respondent No. 1 accepted the same on the basis that respondent No. 2 had the majority of the elected Councillors of all the opposition parties and not the majority of the Councillors of the Shiv Sena.

(ii) The impugned order is contrary to the judgment of another Division Bench of this Court in Abdul Rashid S/o Abdul Sattar and Ors. v. Vikas 2003(6) LJSOFT 86 wherein it is held that the leader of the party in opposition with the greatest numerical strength has to be recognised by the Mayor and the rest of the opposition parties cannot participate in that process.

FACTS

5. Elections for respondent No. 3 were held on 14.12.2003. The number of candidates elected of each party was as follows:

  (a) Shivsena     - 25
(b) N.C.P.       - 21
(c) I.N.C.       - 08
(d) B.J.P.       - 06
(e) S.J.P.       - 03
(f) S.B.P.       - 01
(g) Independents - 03
               ==========
    Total:         67
               ==========
 

6. For the first term a Shiv Sena candidate was elected as the Mayor. He stepped down at the end of his tenure. The election for the post of Mayor was held on 4.11.2006. Respondent No. who belongs to the Nationalist Congress Party (N.C.P.) was elected as the Mayor. Admittedly therefore the Shiv Sena became the opposition with the greatest numerical strength. There is no dispute in this regard.

7. The following three letters were relied upon by the petitioner in support of his claim for being recognised as the Leader of the opposition.

(a) By a letter dated 6.12.2006 respondent No. 1 and the Commissioner were informed by the Dhule District Chief and the Dhule City Chief of the Shiv Sena that they had unanimously decided to Page 1406 appoint the petitioner as the Leader of the Opposition to lead the opposition parties. They therefore called upon respondent No. 1 to recognised as the Leader of the Opposition.

(b) As there was no response to their letter the Dhule District Chief and the Dhule City Chief of the Shiv Sena sent a reminder dated 19.12.2006 to respondent No. 1, the Commissioner and the Secretary, Municipal Council.

(c) Ultimately the "Pratod", the party whip, of the Shiv Sena by his letter dated 22.12.2006 addressed to respondent No. 1 confirmed and reiterated the request to recognise the petitioner as the Leader of the Opposition.

8. On the other hand the following two letters relied upon by respondent No. 2 in support of his claim for being appointed as the Leader of the Opposition.

(a) 24 elected Councillors from various opposition parties including the Shiv Sena addressed a letter dated 6.12.2006 to respondent No. 1 stating:

... We are recommending the name of Shri Chandrakant Madhukar Sonar (respondent No. 2) as Leader of Opposition, who may kindly be recognised as such.

Out of the twenty four signatories to this letter six belong to the Shiv Sena and eighteen to the other opposition parties.

(b) By a letter dated 22.12.2006 respondent No. 2 referred to the letter dated 6.12.2006 and requested respondent No. 1 to consider his application for being recognised as the Leader of the Opposition.

9. (a) Respondent No. 1 called for an office note which was submitted on 22.12.2006. The office note basically refers to the above facts.

(b) Ultimately respondent No. 1 by the impugned letter dated 28.12.2006 ordered as under:

Read : Letter dtd.22.12.2006 submitted by Shri Chandrakant Madhukar Sonar.

ORDER:

On perusal of the Office Note by Town Secretary and letter submitted by Shri Chandrakant Madhukar Sonar duly supported and signed 24 Members, in pursuance to powers given to me under Section 19(1)(AA) of B.P.M.C. Act, 1949, I recognize Shri Chandrakant Madhukar Sonar as Leader of Opposition.

Sd/

Mayor

Dhule Municipal Corporation

Dhule.

10. We will first deal with the second relief claimed.

Whether respondent No. 1 was bound to appoint the petitioner as the Leader of the Opposition.

Page 1407

11. It is necessary first to consider the legal position regarding the recognition of the Leader of the Opposition. Section 19(1)(AA) only provides that the Leader of the Opposition shall be an elected Councillor from the party having the greatest numerical strength. It does not stipulate as to which of the Councillors from the party in Opposition having the greatest numerical strength should be the Leader of the Opposition. Nor does it provide how the Leader of the Opposition is to be appointed by the party in opposition having the greatest numerical strength.

12. This aspect however fell for the consideration of a Division Bench of this Court in the case of Dattabhua S/o Annasaheb Pathrikar v. State of Maharashtra 2007 (5) LJSOFT 100.

(a) In that case it was contended that the petitioner having been nominated to be the Leader of the Opposition by the party high command ought to have been recognised by the Mayor and as such it was contended that the petitioner was in fact chosen as the Leader so as to discharge the functions of the Leader of the Opposition in the Municipal Corporation. In addition thereto the petitioner had satisfied the Mayor that 10 out of 18 elected members of the Congress (I) party which was the largest party in opposition having greatest numerical strength had supported his nomination. The petitioner was therefore recognised by the Mayor on 8.5.2006 as the Leader of the Opposition. Subsequently however the President of the Congress (I) Party Committee tendered a letter to nominate respondent No. 4 as the Leader of the Opposition. The petitioner contended that he had no authority to do so. Respondent No. 4 in addition tendered an application signed by 11 out of the 18 members requesting the Mayor to appoint him as the Leader of the Opposition. Ultimately, the Mayor appointed respondent No. 4 as the Leader of the Opposition.

(b) The Division Bench noticed that the expression "Leader of the Opposition" is not defined in the said Act. The Division Bench noted that the term "Leader of the Municipal Party" is defined under Rule 2 (B-1) (i) of the Maharashtra Local Authorities (Members' Disqualification) Rules, 1987 but observed that the definition is for the purpose of the concerned Rules.

(c) One of the points considered was whether once a Leader of the Opposition is recognized another Corporator can be so recognized in his place if there was a change in the numerical strength of those supporting him. While dealing with this contention the Division Bench held as under:

11. ...

The contentions advanced by the learned Counsel for the petitioner that the term 'Leader of Opposition' is co-terminus with the period of elected body of the Corporation, cannot be a matter of dispute. However, the further argument advanced relying on the analogy that as the petitioner who was once recognized as Leader of Opposition by the respondent No. 3 on 8.5.2006 is deemed to be continued until the completion of the term of the elected body of the Corporation cannot be accepted. The argument has inherent flaws in itself as the petitioner himself has accepted that on 3.5.2005 one Shri Tarvindersingh Dhillon was declared as Page 1408 Leader of opposition and at a later point of time the petitioner wielded the support of 10 Councillors out of 19 elected members of the Congress (I) Party, he staked his claim for the post of Leader of Opposition and as such was recognized as Leader of Opposition by order dated 8.5.2006. These facts itself contradicts the argument advanced by the learned Counsel for the petitioner. If the analogy put forth by the petitioner is to be accepted, the petitioner could not have been recognized as Leader of Opposition by the respondent No. 3 on 8.5.2006. There is no legal bar to recognize any other Corporator as Leader of Opposition whenever change in numerical strength of the Councillors supporting a particular leader takes place. The office of the leader of opposition is co-terminus with the term of the elected body of the Corporation. It does not mean that a particular Corporator or an individual cannot be displaced as a Leader of Opposition even though some change takes place in relation to the numerical strength of the Councillors supporting him. The rule of majority is the cardinal principle governing all democratic institutions. As the Rule of majority applies in relation to the other elected offices as provided under the Municipal Corporations Act, the same principle needs to be applied also in the matter of recognition of the Leader of Opposition. There appears to be logically nothing wrong in an act of recognizing any other leader in place of the existing leader whenever the balance of numerical strength supporting a particular Corporator changes. In the instant case, as the respondent No. 4 mustered the support of 14 Councillors out of 19 Councillors belonging to Congress (I) Party which is the largest group amongst the opposition parties in the Corporation, the decision taken by the Mayor in recognizing him (respondent No. 4) cannot be faulted as the said decision is in accordance with the principle of rule of majority governing all democratic institutions.

13. It is pertinent to note in this regard that in Dattabhau's case it was contended on behalf of the petitioner that his nomination was backed by the President of the Maharashtra State Congress Committee and the communication nominating him as the Leader of the Opposition was issued by the President of the Maharashtra State Congress (I) Committee on 10.5.2006 and as such the petitioner was entitled to continue as the Leader of the Opposition. The submission based on the nomination by the party leadership was obviously not accepted.

14. It is thus clear that the Division Bench held that it is the numerical strength of the Councillors of the largest party in Opposition that determines who is entitled to be recognised as the Leader of the Opposition. The candidate having the largest numerical strength from among the Councillors of the largest party in the Opposition is entitled to be recognised as the Leader of the Opposition. In other words, the Mayor is not entitled to recognise a person as the Leader of the Opposition on the basis of any communication received from the party or its office bearers unless of course the communication evidences that the numerical strength of Councillors supports the nomination.

Page 1409

15. The provisions of the said Act do not stipulate how the Mayor is to decide whether a Councillor has the support of the numerical strength of the Councillors from his party.

16. Mr.Dhorde submitted that this can only be determined on the floor of the House. We are unable to agree. There is nothing in the Act that supports this submission. In the absence of any Rules in this regard it must be held that the Mayor may satisfy himself in this regard in such manner as he deems fit. There can be no hard and fast rule in this respect.

17. Mr. Dixit submitted that the very fact that the communication in favour of the petitioner had been addressed by the party's City Chief, District Chief and "Pratod" establishes that the petitioner had the numerical strength as well.

18. We are unable to agree. It may well be so but it is not possible to fault the Mayor in the facts and circumstances of the present case in not accepting this position merely on the basis of the said letters.

19. Firstly the letters, do not indicate clearly who had "unanimously" decided to appoint the petitioner as the Leader of the Opposition. On the plain language it appears as if the signatories to the said letter had so decided and at the highest that the party representatives had so decided. Even this aspect is not clear.

20. Secondly it is important to note one aspect which is very clear. It could not have been the "unanimous" decision of the Councillors as stated in the letter dated 6.12.2006. This is evident from the fact that one of the Councillors is respondent No. 2 himself. This communication relied upon by the petitioner can by no stretch of imagination be said to be pursuant to a decision of all the Councillors. In fact it is not even the petitioner's case that it was a decision of the majority of the Councillors of the Shiv Sena.

21. In the circumstances, we reject the prayer seeking an order directing respondent No. 1 to appoint the petitioner as the Leader of the Opposition.

Whether the impugned order dated 28.12.2006 recognizing respondent No. 2 as the Leader of the Opposition is liable to be set aside.

22. It is necessary to preface a consideration of this aspect by referring to the principle of law on who is entitled to nominate a person to be recognized by Mayor as the Leader of the Opposition.

23. In Abdul Rashid s/o Abdul Sattar and Ors. v. Vikas 2003(6) LJSOFT 86 a Division Bench of this Court held as follows:

16. The Legislature wanted that a political party which has the greatest numerical strength and which sits in the opposition, its councillor shall be recognised as a leader of opposition and that is in order to give certainty to the post of leader of opposition. No doubt, it may happen that within a municipal party in opposition, it may change its leader in the house, but that is within that municipal party or political party and the rest of the parties which are in opposition will not be in any way participating in that process. What we find is that the proper and correct interpretation of Section 19(1)(AA) of the Act is that the political party or municipal party which has the greatest numerical strength and which sits in opposition its elected Councillor has to be recognised as a leader of opposition.

Page 1410

24. It is clear therefore that the elected councillor who is the Leader of the party in Opposition having the greatest numerical strength has to be recognised by the Mayor as the Leader of the Opposition and the rest of the parties which are in opposition will not be entitled to participate in any way in the process.

25. The letter dated 6.12.2006 signed by the 24 Councillors supporting the recognisition of respondent No. 2 and the affidavits in reply filed by respondent No. 1 themselves establish beyond doubt that the impugned order is contrary to the judgment in Abdul Rashid's case as it is based not on the greater numerical strength of the Councillors of the Shiv Sena, but on the numerical strength of all the opposition parties.

26. (a) Respondent No. 1 passed the impugned order set out earlier, which opens with a reference to the second respondent's letter dated 22.12.2006 seeking recognition as the Leader of Opposition. The letter dated 22.12.2006 in turn was based on letter dated 6.12.2006 signed by the 24 Councillors. It would be convenient to set out the letter verbatim. It reads as follows:

I have submitted a letter dated 6.12.2006 duly signed by 24 Councillors supporting me in the Corporation. Considering the strength of each party, I have been supported by majority of the members. Therefore, kindly consider my application at the earliest and recognize me as Leader of the Opposition.

(b) 18 of the 24 Councillors who signed the letter belong to opposition parties other than the Shiv Sena. It is crucial to note that in this letter respondent No. 2 expressly stated:

Considering the strength of each party I have been supported by a majority of the members.

(c) It is thus clear that the basis of the claim of respondent No. 2 was the numerical strength of the Councillors of all the parties in opposition and not the numerical strength of the largest party in opposition namely the Shiv Sena.

(d) The doubt in this regard, if any, is set at rest by the use of the words "each party". As stated earlier out of 67 seats NCP candidates were elected to 21 seats. The total number of seats of the opposition parties was therefore 46. Respondent No. 2 therefore founded his claim on the basis of his having the support of 24 out of 46 Councillors, to wit that he had the majority from among all the Councillors belonging to all the opposition parties. This approach is contrary to the judgment of the Division Bench in Abdul Rashid's case.

27. Faced with this Mr. Shah, the learned senior counsel appearing on behalf of respondent No. 1 contended that in any event 6 members of the Shiv Sena had nominated respondent No. 2 and there was no nomination in respect of the petitioner. Therefore, he submitted, respondent No. 2 had the majority even from among the Councillors of the largest party in opposition namely the Shiv Sena.

28. As we have demonstrated above, this was neither the basis of the claim of respondent No. 2 nor the basis of the impugned order. This is further demonstrated from the affidavit in reply filed by respondent No. 1.

Page 1411

29. Firstly there is not a whisper in the first respondent's affidavit in reply that this was the basis of his decision. Secondly the affidavit in reply clearly establishes that the first respondent took the decision on the basis that respondent No. 2 enjoyed the support of the majority of the Corporators of all the opposition parties. In paragraph 10 the first respondent states:

10. I say and submit that the representation dated 06.12.2006 read with 22.12.2006 and the office note dated 26.12.2006 is self-explanatory. Considering the totality of circumstances the respondent No. 2 is recognized as leader of opposition.

30. It is thus clear that the first respondent took the decision indeed on the basis of the said letters addressed by the 24 Councillors which, as we have already demonstrated, proceeded on the basis that respondent No. 2 enjoyed the support of the majority of the elected Corporators of all the opposition parties and not merely the Shiv Sena.

31. Further it is important to note the averments in paragraphs 6 and 11 of the first respondnet's affidavit in reply. Respondent No. 1 in paragraph 6 of his affidavit in reply contends that the communication on behalf of the petitioner did not even specify any resolution passed by the Shiv Sena political party sponsoring the candidature of the petitioner as the Leader of the Opposition. It is important to note that in paragraph 11 of his affidavit in reply the first respondent states:

11. I say and submits that, in the past for giving recognition as a speaker (Pratod) and as a leader of opposition the concern political party and the councillors of concern political party used to pass the appropriate resolution and accordingly submit the copy of minutes showing the backing of the majority of councillors within political party. In the absence of any such resolution, it was felt unsafe to give recognition as a leader of opposition to the writ petitioner. Hereto annexed and marked as ANNEXURE "A" Collectively are the copies of the documents showing that, the democratic process was observed by the political party.

32. There was no resolution of the Councillors of the Shiv Sena to support the candidature of respondent No. 2 either. If it was the practice, as contended by respondent No. 1, for giving recognition to a person as the Leader of the Opposition it is difficult to understand why he did not follow it even in respect of the candidature of respondent No. 2. It is difficult to understand why then respondent No. 1 granted recognition to respondent No. 2. The only explanation is that respondent No. 1 proceeded on the erroneous basis that what was required was the support of the majority of the Councillors of all the Opposition parties and not the majority of the Councillors of only the largest opposition party.

33. In the circumstances, the first respondent's decision to recognise respondent No. 2 as the Leader of the Opposition is contrary to law and contrary even to the case pleaded on his behalf as well as on behalf of respondent No. 3.

34. Six of the 24 signatories to the letter dated 6.12.2006 were members of the Shiv Sena. There is thus a dispute between the elected representatives from the Shiv Sena itself. Apparently even for the election of Page 1412 the Mayor held on 4.11.2006 the said six Councillors and respondent No. 2 voted in favour of respondent No. 1. The petitioner contends that the same was in violation of the direction given by the party to vote for one Rajendra Patil. Proceedings were therefore initiated against the seven Corporators for disqualification before the Divisional Commissioner, Nashik Division. The same are pending.

35. This aspect is not relevant to the present petition and, indeed, Mr.Dixit, did not rely on the same in support of his submissions. The averments in the petition are only a part of the narration of facts and the petition is not based thereon. The submission on behalf of the respondents that this petition is in effect an action to have the dispute between the members of the Shiv Sena inter-se agitated is not well founded.

36. It was contended that these aspects are not justiciable. The point is not res-integra. It is answered against the respondents in Abdul Rashid's case which also deals with Sectin 19-IAA.

37. In the circumstances Rule is made absolute in terms of prayer (B) and discharged in respect of prayer (C). The operation of this order is stayed till 15.8.2007. However in the meantime the parties shall be entitled to approach the Mayor for seeking recognition of the Leader of the Opposition and the operation of the stay shall not entitle respondent No. 1 to refuse to consider such application.