Bombay High Court
Age 32 Years vs 3] The Municipal Commissioner on 12 October, 2010
Bench: B.R. Gavai, A.A. Sayed
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO.9563 of 2010
Abhijit s/o. Bhaskarrao Deshmukh
Age 32 years, Occ. Social work
R/o. N-3, CIDCO, Aurangabad
Tal. & District Aurangabad.
Petitioner
Versus
1] The State of Maharashtra
through its Secretary
Urban Development Department,
Mantralaya, Mumbai.
2] The Divisional Commissioner
Aurangabad Division, Aurangabad.
3] The Municipal Commissioner
Aurangabad Municipal Corporation,
Aurangabad.
Respondents
Mr.S.S. Thombre, Advocate for the petitioner
Mrs. A.V. Gondhalekar, Standing Counsel for the R-3.
Mr. K.G. Patil, AGP for the respondent No.1.
WITH WRIT PETITION NO. 9580 of 2010
Kachru s/o. Chhaganrao Ghodke
Age 35 years, Occ. Social Service
R/o. Samata Nagar, Santoshi Mata
Mandir, Aurangabad. Petitioner
Versus.
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1]The State of Maharashtra
through its Secretary
Urban Development Department,
Mantralaya, Mumbai.
2] The Divisional Commissioner
Aurangabad Division, Aurangabad.
3] Aurangabad Municipal Corporation
Aurangabad, through Municipal
Commissioner, Aurangabad.
Respondents.
Mr. P.M. Shah, Senior Counsel holding for Mr. Subodh P. Shah,
Advocate for the petitioner
Mr. K.G. Patil, AGP for the respondents.
Mrs. A.V. Gondhalekar, Standing counsel for the respondent No.3.
with WRIT PETITION NO. 9591 OF 2010
Hemlata w/o. Prakash Mugdiya
Age 51 years, Occ. Social work
R/o. Flat No.7, Maharaja Apartment,
Samarthnagar, Aurangabad.
Petitioner
versus
1] State of Maharashtra
through its Urban Development Department.
2] The Municipal Corporation
Aurangabad through its
Municipal Commissioner.
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3] The Municipal Commissioner
Municipal Corporation of Aurangabad
Aurangabad.
Respondents.
Mr. Anil S. Bajaj, Advocate for the petitioner
Mr. S.K. Tambe, AGP for respondent No.1
Mrs. A.V. Gondhalekar, Standing counsel for the respondent No.3.
With WRIT PETITION NO. 9595 OF 2010
Narendra s/o. Vijaydatta Trivedi
Age 47 years, Occ. Social work
R/o. Nakshatrawadi, Paithan Road,
Aurangabad, District Aurangabad.
Petitioner.
Versus
1] The State of Maharashtra
through its Secretary
Urban Development Department,
Maharashtra State,
Mantralaya,
Mumbai 400 032.
2] The Municipal Corporation
Aurangabad through its
Commissioner, Aurangabad
Municipal Corporation,
Aurangabad.
3] The Municipal Commissioner
Municipal Corporation,
Aurangabad
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Mrs.VJ. Dixit, Senior Counsel holding for Mrs. Sangita A. Dhumal
(Tambat) and Mr. M.G. Deokate, Advocate for the petitioner
Mr. K.G. Patil, AGP for respondent No.1
Mrs. A.V. Gondhalekar, Standing Counsel for the R-3.
CORAM : B.R. GAVAI &
A.A. SAYED, JJ.
DATE : 12TH OCTOBER, 2010.
ORAL JUDGMENT [PER B.R. GAVAI,J.] :
1]
Rule. Rule made returnable forthwith. Heard by consent.
2] By way of present petitions, the petitioners have
challenged the rejection of their nomination papers for the office of
the nominated councillors.
. Since all these petitions involve a common question of
law, the same are disposed of by this common judgment.
3] The respondent No.3, Municipal Commissioner,
Aurangabad had issued a notification on 26th May, 2010, stating
therein that the nomination papers for filling up 5 posts of nominated
councillors would be available in the office of the Municipal
Secretary, from 31st May, 2010 and that the nomination papers would
be accepted on 4/6/2010 and 5/6/2010.
4] All the petitioners claiming that they are representing
the recognized Non Government Organizations engaged in social
welfare activities, submitted their nomination papers alongwith the
necessary documents. It appears that the scrutiny of nomination
papers was held on 1st September, 2010. However, after a period of
one month i.e. on 1st October, 2010, the impugned order was passed
on the nomination papers of the petitioners, stating therein that the
petitioners are disqualified in view of the letter addressed by the
Government Pleader, High Court, Aurangabad Bench, dated 12th July,
2010. It is further stated that the applicants are representing the
Community Based Organizations. However, since the organizations
were engaged in educational or sports activities, the applicants are
disqualified and hence, the nomination papers have been rejected.
Being aggrieved thereby, the petitioners have approached this court.
5] We have heard Shri Shah and Shri Dixit, learned Senior
Counsel, Shri Thombre and Shri Bajaj, learned counsel appearing on
behalf of the petitioners and Smt. Gondhalekar, learned Standing
Counsel appearing for the respondent Corporation.
6] The basic grievance of the petitioners is that, in view of
Rule 4(b) of the Maharashtra Municipal Corporations (Qualification
and Appointment of Nominated Councillors )Rules, 2007 (hereinafter
referred to as " the Rules of 2007" for the sake of brevity), a person
to be eligible for being nominated as a candidate for the office of the
nominated Councillor, as per Rule 4(b), should have an experience
of not less than five years, as a member of the recognized Non
Government Organisation and Community based Organisation
engaged in social welfare activities working within the area of a
Municipal Corporation or a Council. It is submitted that, however,
the impugned order would reveal that the nomination papers are
rejected only on the ground that since the applicants are
representing Community based Organisations which are registered
for the educational or sports activities, the nomination papers are
rejected. It is further submitted that the rejection of the nomination
papers is based on the letter of the Government Pleader and not by
application of mind by the Commissioner and, therefore, the
impugned orders are not sustainable in law.
7] Reliance is also sought to be placed on the Maharashtra
Municipal Corporations, Municipal Councils and Nagar Panchayats
(Norms for Representation to the Non Government Organisations and
Community based Organisations in the wards Committee) Rules,
2000 ( hereinafter referred to as the "said Rules of 2000"), to point
out as to what qualification is required of an organization to be
eligible to be considered as an organisation eligible under the said
Rules of 2007.
8] Per contra, Smt. Gondhalekar, learned counsel appearing
on behalf of the respondent Corporation submits that an organization
to be eligible under Rule 4(b) of the said Rules of 2007, has to be a
Community based organization engaged in only `social welfare'
activities. It is submitted that being engaged in an educational
activity or a sports activity is not the same, as being engaged in a
social welfare activity and, therefore, the impugned orders deserve
to be upheld.
The learned counsel has also sought to rely on the
opinion of the learned Govt. Pleader to substantiate her arguments.
The learned counsel further tried to emphasize that the
words "member of a recognized Non Government Organisation" in
sub-rule (b) of Rule 4 of the said Rules of 2007, has to be read as a
member of the "recognized Non Government Organization , which is
a "Community based Organization" engaged in "Social Welfare"
activities, and not merely a "Non Government Organization"
9] Section 5, sub- section (2)(b), of the Bombay provincial
Municipal Corporations Act, 1949 (hereinafter referred to as "the said
Act" for the sake of brevity) provides thus :-
"5 (2) Each Corporation shall consist of :-
(a) .....
(b) Such number of nominated councillors not exceeding
five, having special knowledge or experience in
Municipal Administration, to be nominated by the
Corporation in such manner as may be prescribed."
. Perusal of the said Statutory Provision would reveal that
such number of nominated councillors not exceeding 5, having
special knowledge and experience in municipal administration are
required to be nominated by the Corporation in such manner, as may
be prescribed.
10] It appears that in view of the enabling provision in clause
(b) of sub-section (2) of Section 5, of the said Act. The State of
Maharashtra, vide notification dated 21st February, 2007, has framed
rules, for the purpose of appointment of nominated councillors. Rule
4 of the said Rules of 2007, deals with the qualifications for
nomination. Since we are concerned only with the category of
recognized Non Government Organization and Community based
Organizations, the relevant provision, read thus :-
4] Qualification for nomination :-
Any person who fulfills any of the following conditions
shall be eligible for being nominated as a candidate for
the office of the nominated Councillor, :-
(a) .........
(b) has an experience of not less than five years, as a
member of recognized non Government Organisations
and community based organizations engaged in social
welfare activities working within the area of a Municipal
Corporation or a Council"
Rule 5 of the said Rules of 2007, deals with the power of
the Commissioner to recommend the names of suitable persons to
the Corporation for being appointed as nominated Councillor, after
consulting the leader of the house, leader of the opposition and
leader of each recognized or registered party or group in the
Corporation, and after taking into account the relative strength of
such parties and groups. The names of such persons recommended
shall not exceed the number of Councillors to be nominated in
accordance with Rule 3.
Sub-Rule (2) of Rule 5 of the said Rules deals with the
power of the Corporation to accept or reject the proposal of the
Commissioner and further enable the mayor to nominate any
member not belonging to any such party or group.
11] It would thus be clear that the only provision that would
fall for interpretation of this court, would be clause (b) of Rule (4) of
the said rules of 2007.
12] The first principle of statutory interpretation is that, a
provision has to be read giving it its plain and literal meaning, as it
is. Only in the event, the intention of the legislature cannot be
gathered by adopting the principle of plain interpretation, a recourse
to other rules of interpretation can be taken. In our considered view,
if the language used by the rule making authority in Rule 4(b) of the
Rules is read literally giving it its plain meaning, the intention of the
legislature can be gathered.
. In our considered view, the interpretation of the said rule
would lead to the following conclusion :-
" A person to be eligible to be nominated to the office of
the nominated councillor from the said category should have :-
[1] Not less than 5 years experience;
[2] Such experience has to be as a member of a recognized
Non Government Organization or a Community based
Organization;
[3] Such Non Government Organization or Community based
Organization, has to be engaged in a social welfare activity
within the area of a Municipal Corporation or a Council."
It is thus clear that a person to be eligible to be a nominated
councillor has to be a member either of a recognized Non
Government Organization or a Community based Organization.
13] If the contention advanced by the learned counsel
appearing on behalf of the respondent Corporation is to be accepted
that a person to be eligible for being nominated as a councillor has
to be a member of a Non Government Organization which is also a
Community based Organization, engaged in Social Welfare activity,
then in our view it will amount to re-writing the said provision. If the
contention is to be accepted, then, nothing could have precluded the
rule making authority from using the words, "as a member of a
Recognized Non Government Community based Organization". The
intention of the legislature is very clear. A recognized organization
has to be either a Non Government Organization or a Community
based Organization. It is not necessary that an organization has to
be a Non Government Organization and also a Community based
Organization.
14] It is further to be noted that, if the arguments of the
learned counsel for the Corporation are to be accepted, then, such
arguments would run contrary to the impugned orders. The
impugned orders themselves state that the applicants having applied
from Community based Organizations they are not eligible since the
organizations are registered as either Educational institutions or
sports institution.
15] We are unable to understand as to how an educational
activity or sports activity cannot be said to be a Social Welfare
activity. In the absence of a specific definition as to what would
constitute or amount to "a social welfare activity", the contention
raised by the Corporation as well as the reasoning given in the
impugned orders, are totally unsustainable in law.
16] There is an another aspect of the matter. When an
authority is bestowed with discretion, it alone has to exercise it
independently. Such a discretion cannot be exercised on the basis
of the opinion of someone else. From the perusal of the orders, it is
clear that the Commissioner has passed the orders only on the basis
of the opinion of the learned Government Pleader, without applying
his mind to the provisions of the Rules. Such an exercise is not
expected of an Officer, who holds the office of the Municipal
Commissioner.
. We also do not understand as to why, when the Scrutiny
was held on 1st September,2010, the impugned orders have been
passed after a period of one month i.e. on 1st October, 2010. In such
matters, it was expected of the Commissioner to have acted
diligently and within a reasonable period. This fortifies the
contention of the petitioners that the impugned orders have been
passed without applying mind by the Commissioner.
17] In that view of the matter, we find that the impugned
orders are not sustainable in law. The decision of the Municipal
Commissioner rejecting the Nomination papers of the petitioners
deserves to be quashed and set aside.
18] Writ petitions are allowed. The impugned orders dated
1/10/2010, passed by the Commissioner, Municipal Corporation,
Aurangabad, are quashed and set aside. The matter is remitted back
to the Municipal Commissioner, for reconsidering the nomination
papers of the petitioners, in the light of what has been observed
hereinabove.
Rule made absolute in above terms, with no orders as to costs.
Grt/wp
[A.A. SAYED,J] [B.R. GAVAI,J.]
