Pradip Vasantrao Gaurkhede And ... vs The Divisional Commissioner And ...
2016 Latest Caselaw 1221 Bom

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                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                                            
                                              NAGPUR BENCH, NAGPUR




                                                                             
                                       WRIT PETITION No.161 OF 2016


           1.    Pradip Vasantrao Gaurkhede.




                                                                            
           2.    Anil Ramchandra Thul.
           3.    Kishore Kisanrao Satpute.
           4.    Sau. Jaishri Rambhau Gulhane.
           5.    Sau. Mohini anand Sharma.
           6.    Sau. Savita Pradip Surjuse.




                                                         
                  All Petitioners are major,
                                
                  Occupation : Agriculturists,
                  R/o. Tiwasa, Tq. Tiwasa, 
                  District Amravati.                                                   :      PETITIONERS
                               
                              ...VERSUS...

           1.    The Divisional Commissioner and
      


                  Regional Director,
                  Municipal Administration,
   



                  Amravati Division, Amravati.

           2.    The Collector, Amravati.





           3.    Presiding Officer/Tahsildar,
                  Tiwasa, Tq. Tiwasa, 
                  District : Amravati.

           4.    Ramdas Sakharamji Mehashre,





                  Aged 60 years,
                  Occupation : Councillor,
                  Tiwasa, Municipal Council,
                  Tiwasa, R/o. Tiwasa, 
                  Tq. Tiwasa, District : Amravati.                                      :      RESPONDENTS




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            Mr. A.S. Kilor, Advocate for the Petitioners.




                                                                                                            
            Mr. R.L. Khapre, Advocate for the Respondent No.4.
            Mr. S.B. Ahirkar, Asstt. Government Pleader for Respondent Nos.1 to 3.




                                                                             
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                                                         CORAM  :   S.B. SHUKRE, J.

th DATE : 5 APRIL, 2016.

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith. Heard

finally by consent of learned Counsel appearing for the parties.

2. By this petition, the petitioners have challenged the

legality and correctness of the order dated 30.12.2015 passed by

the respondent No.1, in his capacity as Regional Director appointed

under the provisions of the Maharashtra Municipal Councils, Nagar

Panchayats & Industrial Townships Act, 1965. (hereinafter referred

to as, "the Act, 1965").

3. The Grampanchayat of Tiwasa was declared as Nagar

Panchayat on 10th April, 2015 and the elections of the Nagar

Panchayat for the first time were held on 1 st October, 2015. On

30th November, 2015, the elections of Chairman and Vice-Chairman

were held. The petitioners and respondent No.4 are the elected

members of the Nagar Panchayat, Tiwasa. While petitioner

J-wp161.16.odt 3/17

Nos.1 to 4 belong to one political party, petitioner Nos.5 and 6

belong to different political party. The respondent No.4 belongs

to another political party. On 4 th December, 2015, Collector,

Amravati, the competent authority, under the Act, 1965 convened a

special meeting of Nagar Panchayat for the purposes of nominations

to be made to the subjects committees, in accordance with the

provisions of Section 65 of the Act 1965 and appointed Tahsildar

respondent No.3, Tiwasa as the Presiding Officer for the special

meeting. The respondent No.3 considering the strength of members

of different political parties requested the leaders of the political

parties to submit the names of members, who were to be nominated

on behalf of their parties for the subjects committees. It

appears that initially, respondent No.4 suggested only one name for

being nominated for each of the subjects committees and when he

was informed by the respondent No.3 that three names were to be

nominated on behalf of his party, the respondent No.4 accordingly

submitted three names for being nominated on behalf of his party.

The respondent No.3 considered the names so suggested by

respondent No.4 and accepting all of them, declared constitution of

5 subjects committees. The proceedings of the special meeting thus

were concluded at about 1.00 p.m. of 9.12.2015. The minutes of

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the special meeting were also drawn out by the respondent No.3.

4. The respondent No.4, however, felt aggrieved by the

constitution of the committees as according to him, the committees

were constituted without taking into account all the names

suggested by respondent No.4 for being nominated to the various

subject committees on behalf of his political party. So, an appeal

was filed by the respondent No.4 under the provision of Section

65(4B) of the Act 1965. The main ground taken in appeal related

to the submission that the Presiding Officer had, without

considering the list of the members furnished by the respondent

No.4, inserted the names of some other members of his own choice

although the Presiding Officer was not well in his lawful authority

and right to do so.

5. The petitioners were not made party to the said appeal.

However, on their application, they were allowed to intervene in

the appeal and were granted hearing by the respondent No.1, the

competent authority, before whom the appeal under Section 65(4B)

of Act 1965 was filed. The respondent No.1, by the order passed on

30.12.2015 allowed the appeal and it is this order, which is under

challenge in the present writ petition.

6. Learned counsel for the petitioners submits that the

J-wp161.16.odt 5/17

order impugned in the petition is without jurisdiction as it has been

passed beyond the scope of appeal powers of respondent No.1

under Section 65(4B). He submits that under Section 65(4B) only

the decision of the Collector or any officers appointed by him to

take a decision relating to accepting or rejecting any nomination

paper can be challenged and in the instant case, the respondent

No.1 has even considered the legality and correctness of the entire

proceedings of the special meeting. He submits that this is not

permissible while deciding the appeal under Section 65(4B) of the

Act 1965. His next objection relates to the vagueness of the

grounds taken in the appeal filed by the respondent No.4. He

submits that the respondent No.4 did not clarify as to which names

were not considered and which names were arbitrarily added by the

respondent No.3 to be the members of the subjects committees.

Learned counsel for the petitioners further submits that if the

correctness of the proceedings was to be challenged, the challenge

could be raised by filing a revision application under Section 318 of

the Act, 1965. He submits that on these grounds writ petition be

allowed by quashing and setting aside the impugned order.

7. Shri R.L. Khapre, learned counsel for respondent No.4,

the main contesting respondent, submits that the power under

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Section 65(4B) includes the power to decide all the questions,

which are ancillary to and which are penultimate to the main

question as for example, whether or not the nominations were

rightly accepted or rejected and, therefore, it cannot be said that the

order impugned in this petition has been passed without any

jurisdiction. For this submission, he places his reliance upon the

case of M/s. Kamala Mills Ltd. vs. State of Bombay, reported in

AIR 1965 SC 1942. Learned counsel further submits that in the

memo of appeal, it was specifically mentioned that some names

given in the list of members to be nominated on behalf of the party

of respondent No.4 have not been considered and some names were

included in the subjects committees arbitrarily. He submits that

once such an objection was raised, it fell for respondent No.1 to

verify the correctness or otherwise of such an objection and the im-

pugned order would show that this is what the respondent No.1 has

done in this case. The correctness or otherwise of the said objection

could have been very much ascertained by examining the list of

nominations made by different political parties and the list of

nominations submitted by respondent No.4 included not only three

names appearing on the reverse page of that list but also one name

suggested for each of the five subjects committees appearing on the

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front page of that list, so submits the learned counsel for respon-

dent No.4. He also submits that while the respondent No.3 ac-

cepted the names appearing on the reverse page of the list, he did

not accept the names appearing on the front page of the list and

this is how the respondent No.1 considered the whole matter and

passed the order impugned herein. He further submits that the no-

tice issued for convening of special meeting itself was not in accor-

dance with the provisions of Section 63(2)(b) and Section 65 of the

Act 1965 and for this reason also, the respondent No.1 rightly

found fault in the manner in which the special meeting was con-

ducted. On these grounds he urges that there is no need for making

any interference with the impugned order.

8. Learned Assistant Government Pleader for respondent

Nos.1 to 3 has supported the impugned order adopting the argu-

ment canvassed on behalf of respondent No.4.

9. In order to appreciate the rival arguments, it would be

necessary to examine the scope of Section 65(4B) of the Act, 1965.

The section reads as under :

Section 65(4B) :

"Any Councillor aggrieved by any decision of the Collector or such officer accepting or rejecting any nomination paper, may, within forty-eight hours

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from intimation of such decision, present an appeal to the Regional Director of Municipal Ad-

ministration concerned an simultaneously give notice of such appeal to the Collector or such offi-

cer. Such appeal shall be disposed of by the Re- gional Director, as expeditiously as possible, after giving reasonable opportunity of being heard to the parties concerned. The decision of the

Regional Director on such appeal and subject only to such decision (if any), the decision of the Collector or such officer, as the case may be, accepting or rejecting the nomination of a

candidate, shall be final and conclusive and shall not be called in question in any Court."

10. From the plain reading of this Section, it becomes clear

that what can be decided in an appeal is the legality or otherwise of

the decision taken by the Collector or his nominee in accepting or

rejecting any nomination paper. The question is whether the

decision as regards acceptance or rejection of nomination paper

would include within its fold the power to decide all ancillary

questions or in the words of learned counsel for respondent No.4

the penultimate questions or not.

11. According to learned counsel for respondent No.4, no

decision regarding acceptance or rejection of the nomination paper

can be taken under Section 65(4B) unless it is first decided that the

nominations have been made properly and by following the

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provisions of Section 65(4B) read with Section 63(2)(b) of the Act,

1965. He submits that if the political parties at the fray are not

aware as to how many members each of the political parties can

nominate for being appointed on the subjects committees, no list

suggesting names of the members to be nominated could be

properly considered and could be properly accepted or rejected by

the Collector or his nominee. Learned counsel for the petitioners

submits that the language employed in sub-Rule (4B) is plain and

clear and, therefore, as per the settled principles of interpretation of

statue, reference to other sections of the Act, 1965 cannot be made.

While there cannot be any dispute about the proposition of law that

when the language of Section to be interpreted is plain,

unambigious and clear, there would be no need for referring to

other sections so as to read something which is not provided in that

Section. But, as held by the Hon'ble Apex Court in the case of M/s.

Kamala Mills Ltd, the power to decide main question also includes

power to decide all ancillary matters and, therefore, it would have

to be considered as to whether or not any decision regarding

acceptance or rejection of a nomination paper could be properly

made de hors the decision on a question as to whether or not the

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nominations have been made by the respective political parties in

accordance with the provisions of law. The answer to the question

would have to be given in the negative if the effect of other relevant

provisions, which are Section 65(4) and Section 63 (2)(b) read

with Section 63 (2B) of the Act, 1965 is considered on the ability of

political parties to make valid nominations to the subjects

committees. It would be useful to reproduce these Sections which

read as under :

Section 65(4) :

"[The Collector shall, within seven days of the election of the President under section 51] call a special meeting of the Council for the purpose of,--

(a) determining the number of the members of the

Standing Committee ;

(b) determining the Subjects Committee or Commit- tees, if any, to be appointed, and the number of members of each such Committee, and if more than one such Committees are to be appointed, the Sub-

ject Committee of which the Vice-President shall be the ex-officio Chairman ;

(c) [nominating members on] the Standing Commit- tee and the Subjects Committee or Committees, if any, in the manner laid down in clause (b) of sub-

section (2) of section 63 :

[Provided that, the President shall not be eligible for being a member of any of the Subjects Committees, but he shall have the right to speak in, and otherwise to take part in the proceedings of, any Subjects Committee, except that he shall not be entitled to vote thereat.]

J-wp161.16.odt 11/17

Section 63(2)(b) :

[The Collector shall, within seven days of the election of the President under section 51,] call a special meeting of the Council for the purpose of,-

(a) ..............

(b) nominating councillors on the Sub-

jects Committees in accordance with the provisions

of sub-section (2B) :

Provided that, the President shall not be eligible for being a member of any of the Subjects Committees [but he shall have the right to speak in,

and otherwise to take part in the proceedings of, any Subjects Committee, except that he shall not be enti-

tled to vote thereat.] Section 63(2B) :

"In nominating the Councillors, the Collector shall take into account the relative strength of recognised parties or registered parties or groups and nominate members, as nearly as may be, in proportion to the strength of such parties or groups

in the Council, after consulting the leader of each such party or group :

[Provided that, the relative strength of the recognized parties or registered parties or groups or aghadi or front shall be calculated by first dividing

the total number of Councillors by the total strength of members of the Committee. The number of Councillors of the recognized parties or registered parties or groups or aghadi or front shall be further divided by the quotient of this division. The figures so

arrived at shall be the relative strength of the respective recognized parties or registered parties or groups or aghadi or front. The seats shall be allotted to the recognized parties or registered parties or groups or aghadi or front by first considering the whole number of their respective relative strength so ascertained. After allotting the seats in this manner,

J-wp161.16.odt 12/17

if one or more seats remain to be allotted, the same shall be allotted one each to the recognized parties or

registered parties or groups or aghadi or front in the descending order of the fraction number in the

respective relative strength starting from the highest fraction number in the relative strength, till all the seats are allotted:] Provided further that, for the purpose of

deciding the relative strength of the recognised parties or registered parties or groups under this sub- section,the recognised parties or registered parties or groups, or elected Councillor not belonging to any

such party or group may, notwithstanding anything contained in the Maharashtra Local Authority

Members' Disqualification Act,1986, within a period of not more than one month from the date of notification of election results, form the aghadi or

front and, on its registration, the provisions of the said Act shall apply to the members of such aghadi or front, as if it is a pre-poll aghadi or front."

12. It is clear from a combined reading of afore-said

provisions that a special meeting for constitution of the committees

and appointment of members to the subject committees cannot be

held unless the relative strength of the respective recognized

political parties is taken into account and the maximum number of

nominations each recognized party would be entitled to make is

determined. Now, if one peruses the notice dated 4.12.2015 issued

for convening of the special meeting one would find that the notice

is silent regarding the said two aspects i.e relative strength of the

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recognized political parties and the maximum number of nomina-

tions each of the recognized parties was entitled to make in the

instant case. So, the effect would be in the absence of any clarity as

regards the number of nominees to be submitted by each of the

recognized parties, these parties would not know as to how

many persons they were entitled to nominate on the subjects

committees. This effect, I must say, goes further and indicates that

whatever names are suggested by the recognized parties could not

be properly accepted or rejected by the Collector or his nominee as

he himself would not be in a position to know as to how many

nominations were to be accepted or rejected. Therefore, accepting

the argument canvassed on behalf of respondent No.4, I find that

the power to accept or reject the nomination paper also includes the

power to decide the question as to how many nominations each

recognized party is entitled to make for the purpose of constitution

of the committees as provided under Section 65 of the Act 1965.

13. Once it is found that the power to decide upon

acceptance or rejection of the nomination papers also includes

determination of the question regarding entitlement of the

recognized parties to suggest names of the persons to be nominated

on the subjects committees, the respondent No.1 would have to be

J-wp161.16.odt 14/17

held, in the instant case, as within his rights to even consider the

question relating to determination of relative strength of the parties

and the fixation of the maximum number of nominations each of

the parties could have made, which is what the respondent No.1

has done here. Thus, I find no substance in the argument that the

impugned order is without jurisdiction and exceeds the scope of

powers under Section 65(4B).

14. Learned counsel for the petitioners has submitted that

the ground of illegality in determination of relative strength and the

proportion in which the nominees were to be made was not taken

in the appeal filed under Section 65(4B) of the Act, 1965 and,

therefore, the petitioners did not have any opportunity to meet the

said challenge. It is true that this ground was not taken before the

Appellate Authority i.e. respondent No.1. But, the ground pertains

to a question of law and, therefore, even if it was not specifically

taken in the memo of appeal, it could have been canvassed by the

respondent No.4 before the respondent No.1 authority and,

therefore, I see no illegality in the impugned order on this count as

well.

15. The next contention of the petitioners relates to

vagueness of the grounds taken in the appeal filed under Section

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65(4B). Upon going through the memo of appeal (Page 35) I find

no substance in the said argument. Of course, names which have

been left out and names which have been inserted wrongly, in the

opinion of respondent No.4, have not been specifically mentioned

in the memo of appeal. But, the fact remains that an objection on

exclusion and inclusion of some names arbitrarily has been taken

and, therefore, a further exercise for ascertaining the correctness or

otherwise of this ground was permissible in law. That exercise, as

seen from the impugned order, however, has not been taken by

respondent No.1. But, this failure in the end is of no consequence

as the illegality pointed out by the Appellate Court and discussed

earlier goes to the root of the whole matter.

16. It is also the submission of learned counsel for the

petitioners that a specific remedy under Section 318 of the Act,

1965 was available to the respondent No.4 and since it was not

resorted to, the impugned order cannot be said to be legal and

proper. I am not inclined to accept the argument. The reason is

obvious. The power under Section 318 is a revisional power, while

the power under Section 65(4B) is an appeal power. Going by the

settled principles applicable to revisional powers, I must say, the

power under Section 318 is about authority to examine the legality,

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correctness or propriety or otherwise of any order passed by the

Collector or any officer nominated by him to take decision under

the provisions of the Act, 1965 and would not include the power to

reappreciate facts so as to substitute one view for another, just

because it is possible. The appeal power under Section 65(4B),

however, would permit re-appreciation of facts and I have also

observed that this power would include the power to decide the

questions which are ancillary for deciding the main issue of

acceptance or rejection of the nomination papers in accordance

with law. It can also be said, subject to limitations stated earlier,

that power under Section 65(4B) is confined to determination of

only those questions which relate to acceptance or rejection of the

nomination paper and also the issues ancillary to main question,

and whereas, the power under Section 318 being somewhat wider,

would refer to authority to decide legality etc. of all questions

arising from the order passed by the Collector or his nominee under

the provisions of the Act, 1965 including the one passed under

Section 65(4B). Therefore, I am of the view that the power under

Section 65(4B) and the power under Section 318 are clearly

distinguishable. It then follows that the power under Section

65(4B) was also exercisable in the instant matter and was exercised

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rightly. Therefore, the argument that the Collector had no jurisdic-

tion under Section 65(4B) in view of the provision of Section 318

has to be said as bereft of any solidity.

17. In the result, I find that there is no substance in the writ

petition. The impugned order deserves no interference with it.

18. Writ petition stands dismissed.

19. Rule is discharged. No costs.

                                           ig                                                          JUDGE
                                         
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