Bombay High Court
Somnath Chintaman Vaskar vs State Of Maharashtra on 23 October, 2008
Bench: D.K. Deshmukh, J.P. Devadhar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3349 OF 2007
...
1.Somnath Chintaman Vaskar
2.Shivram Parshuram Patil ...Petitioners
v/s.
State of Maharashtra
and ors. ...Respondents
...
Mr.M.M.Vashi for the Petitioners.
Mr.P.M.Patil, AGP for State.
Mr.R.S.Apte with Mr.A.A.Garge for Respondent No.2.
Mr.D.H.Mehta for Respondent No.3.
Mr.N.V.Walawalkar for Respondent No.4.
Mr.Y.S.Jahagirdar, Sr.Counsel with Mr.Amit Borkar
for Respondents Nos. 1 & 2.
Mr.G.S.Godbole with Mr.Pankaj J. Das for Respondents
Nos. 9 & 10.
...
CORAM: D.K.DESHMUKH &
J.P.DEVADHAR, JJ.
DATED: 23rd October, 2008
ORAL ORDER: (PER D.K.DESHMUKH, J.)
1. The Petitioners who are elected Corporators of
the Navi-Mumbai Municipal Corporation- Respondent
No.2, by this petition challenge the nomination of
Respondents Nos. 5 1o 12 who are also Corporators
and members of the standing committee of the
Respondent No.2-Corporation.
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2. At the hearing of the petition, however, the
learned Counsel appearing for the Petitioners stated
that he restricts his challenge in this petition to
the nomination of only Respondents Nos. 9 & 10 as
members of the Standing committee of the Respondent
No.2-corporation. It is an admitted position that
the General Election to the Respondent No.2
corporation was held on 10-4-2005. Result of the
election was declared on 11-4-2005. The total
strength of the elected Corporators in the Respondent
No.2-Corporation
candidates belonging to the Nationalist Congress
candidates belonging to Congress (I) were elected as
Corporators, 14 candidates belonging to Shivsena
Party were elected as Corporators, 1 candidate
belonging to Bharatiya Janta Party (BJP) was elected
as Corporator and 11 candidates who had contested
election as independents were also elected.
3. According to the Petitioners, 14 members of the
Shivsena party formed Aghadi with 1 Corporator of BJP
& 6 Corporators who were elected as independents,
which is registered under Rule 3(1)(a) of the
Maharashtra Local Authority Disqualification Rules,
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1987. On 23-2-2007, the Maharashtra Ordinance
No.II/2007 called "Maharashtra Municipal Corporations
(Amendment) Ordinance 2007 was promulgated by the
Governor of Maharashtra. By that ordinance section
31-A was added to the Bombay Provincial Municipal
Corporation Act, 1949. It is common ground that the
Respondent No.2-Corporation is constituted under the
Bombay Provincial Municipal Corporation Act, 1949
(hereinafter referred to as the "Act" for the sake of
brevity). Subsequently, the said Ordinance has been
passed by the Legislature and Section 31-A has become
part of the Act.
Corporators who were members of the Standing
Committee retired because of the rotation policy and
therefore those 8 vacancies were to be filled in. On
26-3-2007, the Secretary of the Respondent
No.2-Corporation issued a notice convening a General
Body Meeting of the Corporation on 13-4-2007 at 11
a.m. In the agenda one of the subject before the
meeting was filling in 8 vacancies on the Standing
Committee. By letter dated 9-4-2007, the Municipal
Secretary informed the Mayor of the Respondent No.2
that in accordance with the provisions of Section
31-A of the Act, 8 vacancies of the Standing
Committee are to be filled in by nominations of four
Corporators of NCP, two Corporators of Congress (I) &
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two Corporators belonging to Shivsena Aghadi ( which
consists of 14 corporators of Shivsena Party, 1
corporator of BJP & 6 corporators who have been
elected independently). It appears that the leader
of each Political group was intimated by the
Municipal Secretary about the number of nominations
to be made by each political group. According to the
Petitioners, in response to the letter, the leader of
the Shivsena group informed the Mayor that the
Petitioners are to be nominated as members of the
Standing Committee in the quota allotted to Shivsena
Aghadi.
According to the Petitioners, in the General
Body Meeting of the Corporation, however, which was
held on 13-4-2007 a strange procedure was followed
whereby the nomination of the Petitioners as members
of the Standing Committee was rejected and in their
place Respondents Nos. 9 & 10 were elected as
members of the Standing Committee. According to the
Petitioners, appointment of the Respondents Nos. 9 &
10 as members of the Standing Committee by the
Resolution of the General Body dated 13th April, 2007
is contrary to law and therefore, is liable to be set
aside.
4. In this petition, affidavit has been filed on
behalf of the Respondents Nos. 9 & 10. The
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Municipal Secretary who has been joined as Respondent
has also filed an affidavit. According to the
Respondents Nos. 9 & 10, their appointment as
members of the Standing Committee is in accordance
with law. It appears that the Respondent No.4, who
is the Deputy Mayor of the Corporation, who had
presided over the meeting held on 13-4-2007 has also
filed an affidavit. It appears from the record that
the Respondents Nos. 9 & 10 along with six other
Corporators of the Respondent No.2 had addressed a
letter to the Mayor of the Respondent No.2 dated
3-7-2006 stating
ig therein that eight signatories to
this letter including the Respondents Nos. 9 & 10
were elected as candidate belonging to Shivsena
political party. It was further stated that there
were total 14 members of the Shivsena party elected
as Corporators. It was stated that there was
difference of opinion amongst the Corporators of
Shivsena Party and therefore in the meeting held on
2-7-2006, eight Corporators who are signatories to
this letter had decided to constitute a separate
group. By letter dated 28th March, 2007, the same
eight Corporators, including Respondents Nos. 9 &
10, addressed a letter to the Mayor stating that they
have left Shivsena party and they have formed an
independent group and therefore they should be given
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a separate place to sit in the meeting hall. It
further appears that by letter dated 12-4-2007, which
is signed by eight Corporators, including Respondents
Nos. 9 & 10, the Mayor was informed that by an
independent group consisting of 8 Corporators, who
were elected as members of Shivsena party,
Respondents Nos. 9 and 10 are nominated as members
of the Standing Committee. Though, in the letters
referred to above, the Respondents Nos. 9 & 10 have
stated that they have separated from Shivsena and
they are forming a separate group, in the affidavit
filed by Smt.Satvashila Mohan Karne-Respondent No.10,
on behalf of Respondents Nos. 9 & 10, they claim
that they have never given up their membership of
original Shivsena political party. At the same time,
they accept that they had written letter dated
3-7-2006 informing the Mayor that they have formed a
separate group. They also claim that they were
entitled to be nominated as members of the Standing
Committee, because their names were nominated by
majority of the members belonging to Shivsena Party.
5. We have heard the learned Counsel for both sides.
They have also filed their written submissions. From
the material on record, there appears to be no
dispute that the Respondents Nos.9 & 10 were elected
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as Corporators as candidates belonging to Shivsena
party; that 14 candidates belonging to Shivsena
party were elected as Corporators. It further
appears that those persons who were elected as
independent joined 14 members of Shivsena party and
formed a Aghadi, which consisted of 20 members and
that Aghadi was registered with the Divisional
Commissioner as required by the provisions of the
Maharashtra Local Authority Disqualification Rules,
1987. It also appears to be an admitted position
that the Shivsena political party becomes entitled to
nominate
two members on the Standing Committee, only
because six independents have joined them. It also
appears to be obvious position on record that if the
case of the Respondents Nos. 9 & 10 that they
separated from the Shivsena Municipal Corporation
Party is accepted, then original Shivsena Municipal
Corporation party will have six members, whereas
independent group will have eight members, and
therefore both these groups on their own are not
entitled to nominate two members. It is obvious from
the resolution passed by the Corporation that
Respondents Nos.9 & 10 have been appointed as members
of the Standing Committee on the assumption that
Shivsena Aghadi i.e. 14 members of Shivsena and 6
independents become entitled to nomination of two
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Corporators. Even, the Respondent No.4-Deputy Mayor,
who appears to have created the whole mess, has
accepted this position in paragraph 12 of his
affidavit, wherein he has stated,
"....I say that as per the relative strength
of the respective parties/ group and
independents, for 8 vacancies, 4 persons from
Rashtrawadi Party, 2 persons from Congress
and independents & 2 persons from Shivsena &
independents or their group, could have been
taken."
But he says that because the Shivsena and
independents nominated 4 corporators in stead of 2,
he held election. In our opinion, it is obvious from
the record and if the case of the Respondents Nos.9 &
10 that they had separated from the original Shivsena
party is accepted, then also the appointment of
Respondents Nos.9 & 10 as members of the Standing
Committee has to be set aside, because group of eight
members on the Standing Committee.
6. It was not disputed before us that the provisions
of sub-sections (1) & (2) of Section 31A are
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applicable to the appointment of Councillors on the
Standing Committee. The learned Counsel appearing
for the Respondents Nos. 9 & 10 tried to contend
that second proviso to sub-section (2) of Section 31A
is not applicable. In our opinion, even ignoring
that proviso and accepting the stand of the
Respondents Nos.9 & 10 and Respondent No.4, the
appointment of Respondents Nos.9 & 10 as members of
the Standing Committee has to be set aside.
7. Perusal of the provisions of Section 31-A shows
that appointment of members of the Standing Committee
is to be made by nomination and not by election. In
the statement of object accompanying the Ordinance by
which Section 31-A was incorporated in the Act, it is
clearly stated that the present practice of
appointment of members of the Standing Committee by
election is not satisfactory and therefore Section
31-A is introduced to provide for the nomination of
members of the Committee in proportion to the
strength of the political party or group in the
Corporation. On perusal of the proceedings of the
General Body meeting dated 13-4-2007 shows that the
Respondent No.4 had adopted a strange procedure.
Firstly, he put four nominations recommended by the
NCP for voting before the meeting. On the
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Corporation accepting those names, those four
Corporators were declared as elected as members of
the Standing Committee. Then, two names recommended
by Congress (I) party were put to vote. They were
accepted. Therefore, those two Corporators were
declared elected as members of the Standing
Committee. Then name of one Madhavi Shinde was put
to vote. That was not accepted. When it came to
Shivsena, the names of the Petitioners were placed
before the House for voting. The House rejected
those names and they were declared defeated and then
names of the
Respondents Nos.9 & 10 were placed
before the House and it was declared that the House
has accepted those two names and therefore they were
declared as elected. The procedure that is followed
by the Respondent No.4 in the meeting is obviously in
total violation of the provisions of Section 31-A.
In our opinion, it was for the Presiding Officer to
decide whether the alleged formation of separate
group by 8 Corporators of Shivsena, including
Respondents Nos.9 & 10, is to be accepted or not? If
it is to be accepted, what would be the
representation to be given to each group, it is only
thereafter nominations from Shivsena and
independents, who have allied with Shivsena, could
have been decided.
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8. Taking overall view of the matter, therefore, in
our opinion, following order would meet the ends of
justice.
O R D E R
(i) Appointment of Respondents Nos.9 & 10 as
members of the Standing Committee of the
Respondent No.2-Corporation brought about by
the General Body Resolution dated 17-4-2007
is set aside;
(ii) The Respondent No.2-Corporation is
directed to decide the question of
proportionate representation to be given to
the Shivsena and independents, who are said
to be forming Aghadi with Shivsena,
considering the claim of the eight
Corporators, including Respondents Nos.9 &
10, and thereafter hold a fresh meeting of
the General Body for the purpose of
nominations in the two seats on the Standing
Committee;
(iii) Rule made absolute with no order as to
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costs;
9. At the request of the learned Counsel appearing
for the Respondents Nos.9 & 10, it is directed that
the Corporation-Respondent No.2 shall hold its
General Body Meeting as directed above only after an
expiry of period of four weeks from today.
(D.K.DESHMUKH, J.)
(J.P.DEVADHAR, J.)
