Bombay High Court
Shahin Anjum Mehboob Khan vs Divisional Commissioner, ... on 11 April, 2016
Bench: B.P. Dharmadhikari
1 Judg.wp no.1921.15
THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Writ Petition No.1921 of 2015
Shahin Anjum Mehboob Khan,
Aged 48 years, Occ.-Home-maker,
R/o.-Baidupura Prabhag No.15B,
Tah. and Distt-Akola. .... Petitioner.
Versus
1] Divisional Commissioner,
Amravati Division, Amravati.
2] The Mayor,
Akola Municipal Corporation, Akola.
3] Akola Municipal Corporation,
through its Commissioner, Akola District, Akola.
4] City Secretary,
Akola Municipal Corporation, Akola,
5] Akola Vikas Aghadi,
through is leader Shri Vijay Kamalkishor Agrawal
R/o.-Landmark Building, near
Shrikrushna Temple, Ramnagar, Akola.
6] Rajesh Wasudeorao Kale,
Aged adult, Occ.-Business,
R/o.-Phadke Nagar, Dabki Road, Akola
At present : Inmate in District Central Jail, Akola.
7] Maharashtra Navnirman Sena,
through its leader Shri Rajesh Wasudeoral Kale,
R/o.-Phadke Nagar, Dabki Road, Akola
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2 Judg.wp no.1921.15
At present : Inmate in District Central Jail,
Akola. .... Respondents.
Shri U.J. Deshpande, Advocate for petitioner.
Shri S.V. Sohoni, Advocate for resp.nos.3 and 4.
Shri Sambare, Advocate for resp.no.2.
Shri N.S. Rao, AGP for resp. no.1.
Writ Petition No.2429 of 2015
1] Akola Vikas Maha Sangh,
Akola Municipal Corporation,
through its leader Sunil Tukaram Meshram,
aged about 49 years, R/o.-Siddhartha nagar,
Tarfail, Akola.
2] Sujata Deorao Ahir,
aged 46 years, Occ.-household,
R/o.-Panchasheel Nagar, Krushi nagar, Akola.
3] Madhuri Sunil Meshram,
aged 44 years, Occ.-household,
R/o.-Siddhartha Nagar, Tarfail, Akola. .... Petitioners.
Versus
1] The Mayor,
Akola Municipal Corporation, Akola.
2] Akola Municipal Corporation,
through Municipal Commissioner, Akola.
3] The Divisional Commissioner,
Bypass road, Camp Amravati 444 602.
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4] Ashish Ganeshrao Pavitrakar,
aged 26 years, Occ.-Business,
R/o.-Aman Khan Plot, Akola,
5] Suresh Pandurang Andhare,
aged 45 years, Occ.-Business,
R/o.-Harihar Peth, Old City, Akola.
6] Dilip Apparao Deshmukh,
aged 43 years, Occ.-Business,
Shiv Sena Vasahat Veer Bhagat Singh nagar,
Akola,
7] A. Jabbar A. Raheman,
aged 57 years, Occ.- Business,
R/o.- Mominpura near Pancha Bunglow, Akola,
8] Smt. Gayatri Devi Krupashankar Mishra,
aged 55 years, Occ.-Household,
R/o.-Hariharpeth Dashahara Nagar, Akola,
9] Vijay Kamalkishor Agrawal,
aged 50 years, Occ.-Business,
R/o.-Ramnagar, Akola,
10] Smt. Jazrabi A Rashid,
aged 55 years, Occ.-Household,
R/o.-Nehru Nagar, Akola,
11] Rama Damodhar Tayde,
aged 45 years, Occ.-Business,
R/o.-Panchsheel Nagar, Krushi Nagar,
Akola. .... Respondents.
Shri Gordey, Senior Advocate with
Mrs. R.D. Raskar, Advocate for petitioners.
Shri H.R. Gadhiya, Advocate for resp.no.1.
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Shri S.V. Sohoni, Advocate for resp.no.2.
Shri N.S. Rao, AGP for resp. no.3.
Coram : B.P. Dharmadhikari &
P.N. Deshmukh, JJ.
Dated : 11 th April, 2016.
ORAL JUDGMENT ( per B.P. Dharmadhikari, J.)
1] In these Writ Petitions filed under Article 226 of the
Constitution of India challenge is to the nominations for constitution of
Standing Committee of Akola Municipal Corporation in April, 2015,
though grounds of challenge are different.
2] Since the facts giving rise to challenge are identical, it appears
that the matters have been clubbed together. In WP 1921 of 2015,
general body meetings conducted on 7th as also 13th April, 2015
nominating 8 members each are in question while in WP 2429 of 2015,
denial of its due seat to Petitioner on Standing Committee on 13.4.2015
is in dispute.
3] Accordingly, we have heard learned Senior Advocate Shri
Gordey with learned Advocate Smt. R.D. Raskar for the petitioners in
Writ Petition No.2429 of 2015, learned Advocate Shri U.J.Deshpande,
for the petitioner in Writ petition No.1921 of 2015, learned Advocate
Shri Gadhiya for respondent no.1 Mayor in Writ Petition No.2429 of
2015, learned Advocate Shri S.V. Sohoni for respondent no.2 therein,
learned A.G.P. for respondent no.3 while learned Advocate
5 Judg.wp no.1921.15
Shri S.R. Charpe for respondent nos. 6 to 10 in Writ Petition No.2429 of
2015, learned Advocate Shri Sambare for respondent no.2 Mayor in
Writ Petition No.1921 of 2015 and learned Advocate Shri Sohoni for
respondent nos. 3 and 4 in Writ Petition No.1921 of 2015.
4] Total 73 Corporators are elected as General Body Members
of Akola Municipal Corporation on 16-02-2012. The first Standing
Committee consisting of sixteen members was constituted on
20-03-2012 & it was challenged in Writ Petition No.1426 of 2012. That
Writ Petition was decided on 08-05-2012 and said judgment is reported
in 2012(4) Mh.L.J., 874 (Mahanagar Sudhar Samiti, Akola Vrs Akola
Municipal Corporation and others). 08 members of that Standing
Committee retired on 29-04-2013. The exercise undertaken to fill in
those vacancies came to this Court in Writ Petition No.2571 of
2013 at the instance of the Mahanagar Sudhar Samiti, Akola. That
Writ Petition was allowed on 14-08-2013 and the said judgment is
reported at 2013 (5) Mh.L.J., 538 --Mahanagar Sudhar Samiti & ors.
vs. Mayor, Akola Municipal Corporation & ors. The matter was taken
to the Hon'ble Apex Court in Civil Appeal No.1388 of 2015 and the
Hon'ble Apex Court has allowed the said Appeal on 02-02-2015. The
said judgment is reported at 2015(2) SCALE 136 (Ajay Ramdas
Ramteke and another Vrs Mahanagar Sudhar Samiti, Akola and
others.). The Hon'ble Apex Court found that the Divisional
Commissioner had on 28-08-2012 refused to grant registration to the
6 Judg.wp no.1921.15
'Aghadi' under Section 31A(2) of the Maharashtra Municipal
Corporations Act, 1949 [for short, 'the Act, 1949']. This exercise dated
28-08-2012 was undertaken by the Divisional Commissioner because of
the directions issued in judgment reported at 2012(4) Mh.L.J., 874-
Mahanagar Sudhar Samiti, Akola Vrs Akola Municipal Corporation
and others (supra). It could not be looked into when Mahanagar
Sudhar Samiti & ors. vs. Mayor, Akola Municipal Corporation &
ors, (supra) came to be decided by the Division Bench on 14-08-2013.
The Hon'ble Apex Court concluded that the said order of the
Divisional Commissioner rejecting the application for registration had
attained finality and therefore the Writ Petition filed before this Court
questioning Resolution dated 29-04-2013 was liable to be dismissed.
Hence, the judgment dated 14-08-2013 of this Court has been set aside
and Resolution dated 29-04-2013 effecting nominations to the Standing
Committee was restored.
5] It is not in dispute that after the judgment of Hon.
Apex Court, Municipal Commissioner issued notices on 30-03-2015
and convened the meeting of General Body on 07-04-2015. On the said
date, two sets of notices were issued; by first set, 8 vacancies in
Standing Committee which would have otherwise occurred in February,
2014, were sought to be filled in; while by the other set of notices,
remaining 8 vacancies which could have occurred in February, 2015,
were sought to be filled in. It is not in dispute that all 16 seats in
7 Judg.wp no.1921.15
Standing Committee were thus sought to be filled in the meeting then
scheduled on 07-04-2015.
6] Only first 8 vacancies of February, 2014 could be filled in on
that day and the remaining 8 vacancies have been filled in the meeting
taken on 13-04-2015. It is this exercise which has been questioned in
both these petitions.
7] Learned Senior Advocate Shri Gordey has submitted that the
petitioner no.1 Maha Sangh has three members in General Body and
considering this strength, it is entitled to have one seat on the Standing
Committee. In view of the fact that the first election to the Standing
Committee took place on 20-03-2012 and as per the rotation, the seat
to which the petitioners are/were entitled, becomes available in
election which has been conducted on 13-04-2015. To substantiate
his submission he has taken us through a note prepared by the Municipal
Secretary for this purpose. He points out that as per the said note, the
Bhartiya Janta Party gets 4 seats, Bharatiya Rashtriya Congress gets 4
gets, Shiv Sena and Akola Vikas Aghadi get 2 seats each while Bharip
Bahujan Mahasangh, Rashtrawadi Congress Party, Akola Shahar Vikas
Aghadi and Petitioner Akola Vikas Mahasangh get 1 seat each on the
Standing Committee. He submits that when the elections were actually
held on 13.04.2015, that seat came to be denied to the petitioners and it
came to be given to the Bharip Bahujan Mahasangh. He contends that,
the said election is therefore liable to be quashed and set aside.
8 Judg.wp no.1921.15
8] He has referred to Section 31A(2) of the Act 1949 to urge that
as per the scheme of that provision, full or complete number in relative
strength of Corporators belonging to any Aghadi or Front is separately
recognized in law while the fraction number has been independently
recognized. Both the complete & fraction number are given distinct
treatment. He contends that the intention of the State Legislature is to
have representatives of even small Fronts/Aghadis which may not
procure full number when the relative strength is determined, and hence
this peculiar scheme has been worked out to see that all groups get an
opportunity & are represented on Standing Committee. Taking
hypothetical illustration he submits that if any seat is left after
entitlement of such small groups is fulfilled, then only it can revert back
to the larger parties with full number as relative strength.
9] He fairly points out that three preliminary objections have
been raised by the respondents. According to him, the remedy under
Section 451 of the Act, 1949 is not an alternate remedy & an absolute
bar as held by this Court in 2012(4) Mh.L.J., 874 (supra). He further
contends that the challenge that the petitioner no.1 is not the registered
Aghadi or Front is misconceived because by order dated 28-08-2012,
the status of the petitioner with three members as such has been
recognized. He further submits that the representatives elected on
Standing Committee on 20.03.2012, because of the judgment reported
at 2012(4) Mh.L.J., 874 (supra) have already completed their tenure. All
9 Judg.wp no.1921.15
representatives elected or nominated on 13.04.2015 are not necessary
parties in this challenge as the representative of party likely to be
displaced i.e. the representative of Bharip Bahujan Mahasangh is
respondent no. 11 before this Court. Hence, the objection that the
necessary parties are not joined is erroneous.
10] Learned Advocate Shri Gadhiya for the respondent no.1-
Mayor has opposed the petition & arguments noted supra. According to
him, the mathematical exercise of finding out whether the petitioner is
entitled to one seat on the Standing Committee or not, can be effectively
looked into under Section 451 and this Court in the judgment
reported at 2012(4) Mh.L.J., 874 (supra) reaches a finding on alternate
remedy in the peculiar facts and circumstances of that case. He further
points out that in that judgment, the petitioner claimed to be a part of
Mahanagar Sudhar Samiti and refusal by the Divisional Commissioner
to register Mahanagar Sudhar Samiti as a larger aghadi, does not mean
that the petitioner no.1 Akola Vikas Maha Sangh has been registered.
He, therefore, states that the petitioner has no locus or status to maintain
such a petition.
11] He argues that under the scheme of Section 31A(2) of the
Act, 1949, the treatment to full number or fraction in relative strength is
only to advance the purpose of providing effective representation to the
parties in proportion of their relative strength in General Body. He,
therefore, contends that a body which has got only a fraction (without
10 Judg.wp no.1921.15
full number) cannot be given a single seat on Standing Committee, and
it cannot be allowed to supersede the better claim of a party who has
secured a full or complete number. He states that as Bharip Bahujan
Mahasangh has, in relative strength, a complete number; its value
exceeds the value of fraction only of relative strength to which the
petitioner is found entitled to, Bharip Bahujan Mahasangh & Petitioner
can not have equal representation on the Standing Committee. As this
controversy squarely falls for determination in the writ petition, the
Bharip Bahujan Mahasangh is necessary party & the question can not be
decided behind its back.
12] Learned Advocate Shri Sohoni appearing for the respondent
no.2-Municipal Corporation has invited our attention to the written
submission filed on affidavit on record.
13] The learned AGP appearing for respondent no.3 supports the
arguments advanced by learned Advocate Shri Gadhiya and learned
Advocate Shri Sohoni.
14] Learned Advocate Shri Sanket Charpe has submitted that the
petitioner in Writ Petition No.2429 of 2015, is deprived of its seat & due
representation on 13.04.2015. He supports the calculations about relative
strength & the seat entitlement worked out by the Municipal Secretary.
11 Judg.wp no.1921.15
15] Arguments in W.P. 1921 of 2015 are then advanced in the above
backdrop.
16] Learned Advocate Shri Deshpande for the petitioner in Writ
Petition No.1921 of 2015 states that the Hon'ble Apex Court has
specifically directed that the position as on 29-04-2013 should be
restored. As per that position, the election of the said petitioner as the
member of Standing Committee needed to be restored and thereafter
further election to elect Chairman of Standing Committee ought to have
been conducted. He submits that because of interim orders passed by
this Court and thereafter by the Hon'ble Apex Court, 8 members elected
on 29-04-2013 could not resume their office as there was no election for
the post of Chairman of the Standing Committee. Hence they ought to
have been permitted to complete their term after adjudication of the
dispute pertaining to their election held on 29.04.2013 by the Hon. Apex
Court. As such, there were no 16 vacancies in Standing Committee on
7.04.2015 & only after completion of their term, the steps to fill in
proportionate vacancies could have been initiated. He submits that had
this exercise been followed, the arbitrary and artificial attempts to fill in
all 16 vacancies in the general body meeting at one go, would not have
been necessary. He further points out that Rajesh Wasudeorao Kale
could not have acted as Group Leader of respondent no.7 Aghadi as said
person had earlier admitted to have formed a Front or Aghadi with
Akola Vikas Aghadi. As such, he cannot be legally recognized as
12 Judg.wp no.1921.15
member of the political party Maharashtra Nav Nirman Sena. Hence
the strength of Maharashtra Nav Nirman Sena is reduced by one which
results in reduction of its one seat on the Standing Committee. This
seat then needs to be given to the party or Aghadi securing next below
complete number or fraction. According to said petitioner, therefore,
Akola Vikas Aghadi remains entitled only to one seat on the Standing
Committee and independent members whose relative strength is next
below the relative strength of Akola Vikas Maha Sangha, gets one seat.
Hence, on this count also the entire process of nomination undertaken
on 7th & 13th April, 2015 is vitiated.
17] Opposing this petition, learned Advocate Shri Sohoni has
invited our attention to the written submissions filed by respondent
nos. 3 and 4 on record. He states that on 01-03-2016 the term of 8
members of the Standing Committee expired and accordingly, on
29-02-2016, in General Body Meeting, 8 corporators have been elected
in their place. He submits that the petitioners have not assailed these
elections which are conducted on 29-02-2016. He adds that after these
elections new Standing Committee Chairman has been elected and thus
new Standing Committee has started functioning. If the petition is
allowed, the rights of these new members & the Standing Committee
shall be affected & hence, they are necessary parties. As W.P. 1921 of
2015 is not amended to incorporate & assail these subsequent
developments & newly nominated members are not arrayed as parties,
13 Judg.wp no.1921.15
the petition must be dismissed.
18] Learned Advocate Shri Deshpande in reply arguments points
out that while issuing notice in the petition 1921 of 2015 on
06-04-2015, this Court has permitted the meeting scheduled on
07-04-2015 to be held but its outcome is subjected to further orders of
this Court in the matter.
19] Learned Senior Advocate Shri Gordey in reply arguments
points out that in his petition 2429 of 2015 though there is no such order
qualifying or subjecting the nomination, if petition is allowed as the
election conducted on 13-04-2015 falls to ground, the subsequent
election must also fall to ground. While dictating the above part,
because of attempt made to add to this submission, we put the question
to all as to whether the Standing Committee members who are elected
on 29-02-2016 and body in office needs to be heard or not. Learned
Senior Advocate Shri Gordey and learned Advocate Shri Deshpande
both then submitted that it is not necessary. Learned Senior Advocate
Shri Gordey states that the seat which the petitioner is seeking in Writ
Petition No.2429 of 2015, no election could have been held on
29-02-2016 as that the vacancy becomes available only in February,
2017. Respondent 11 nominated on that seat on 13.4.2015, is already
party before this Court.
14 Judg.wp no.1921.15
20] The affidavit filed by the Municipal Corporation and its
Secretary in Writ Petition No.1921 of 2015 shows that 8 members have
been elected to fill in 8 vacancies on 29.2.2016. The facts stated therein
are undisputed. The Aghadi or Fronts represented by them are as
under :-
1 Shri Satish Ganeshrao Dhage Bhartiya Janta Party
2 Shri Bal Pralhadrao Tale Bhartiya Janta Party
3 Smt. Safiya Azad Khan Bhartiya Rashtriya Congress
4 Smt. Sk. Rijwana Ajij Sk. Ajij Bhartiya Rashtriya Congress
Smt. Rajkumari Rajkumar Shivsena
5 Mishtra
Smt. Mangla Subhashrao Akola Vikas Aghadi
6 Mhaisne
Shri Mahadeo Amrutrao Bharip Bahujan Mahasangh
7 Jagtap
Smt. Shamsad Begam Sk. Nationalist Congress Party
8 Farid
21] In Writ Petition No.1921 of 2015, this Court has on
06-04-2015 ordered that though the meeting scheduled on 07-04-2015
could be held, its outcome would be subject to further orders of this
Court in the matter. After the said order of this Court, the actual
meeting has been held and prayer clauses in petition have not been
amended to incorporate the challenge to the proceedings in that meeting.
The said meeting filled in 8 vacancies in Standing Committee which had
occurred in February, 2014. 8 members who are elected on 07-04-2015
15 Judg.wp no.1921.15
completed their tenure in February, 2016 and hence the direction of this
Court that the outcome of said meeting would be subject to further
orders of this Court in the matter is rendered redundant. The 8 new
members elected on 29-02-2016 are not parties before this Court and
their elections are also not assailed in Writ Petition No.1921 of 2015.
Remaining 8 members of the Standing Committee nominated on
13.04.2015 will complete their term in February, 2017. Hence, 50% of
the new Standing Committee members are not before the Court. If we
accept the contentions of Adv. Deshpande & restore the body as on
29.04.2013, all these members & entire Standing Committee functioning
to-say is removed. As such, we find that no effective orders can be
passed in Writ Petition No.1921 of 2015 in absence of necessary parties.
It is, accordingly, disposed of.
22] In Writ Petition No.2429 of 2015, the challenge is only to the
proceedings of General Body held on 13-04-2015 in which a vacancy or
seat which otherwise would have fallen to the share of the petitioners
has been given to the Bharip Bahujan Mahasangh. It is to be noted that
one representative of Bharip Bahujan Mahasangh has been elected on
07-04-2015 while its another representative has been elected on
13-04-2015. The petitioners claim this second seat which has been filled
in through Bharip Bahujan Mahasangh on 13-04-2015. The tenure of
said member elected on 13-04-2015 against the seat claimed by the
petitioners is to last up to February, 2017. Thus, the elections held on
16 Judg.wp no.1921.15
29-02-2016 have got no bearing on the challenge raised in writ petition
2429 of 1015.
23] Section 31A of the Act, 1949 to the extent relevant for
finding out the entitlement of the present petitioners reads as under :-
"31A. Appointment by nomination on
Committees to be by proportional representation -
(1) Notwithstanding anything contained in this Act
or the rules or bye-laws made thereunder, in the
case of the following committees, except where it
is provided by this Act, that the appointment of a
Councillor to any Committee shall be by virtue of
his holding any office, appointment of Councillors
to these Committees, whether in regular or casual
vacancies, shall be made by the Corporation by
nominating Councillors in accordance with the
provisions of sub-section(2) :-
(a) Standing Committee;
(b) Transport Committee;
(c) Any special Committee appointed under
section 30;
(d) Any ad hoc Committee appointed under
section 31;
(2) In nominating the Councillors on the
Committee, the Corporation shall take into account
the relative strength of the recognized parties or
registered parties or groups and nominate
17 Judg.wp no.1921.15
members, as nearly as may be in proportion to the
strength of such parties or groups in the
Corporation, after consulting the Leader of the
House, the Leader of Opposition and 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, 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 recognized parties or
registered parties or groups under this Act, the
recognized parties or registered parties or groups,
or elected Councillors not belonging to any such
party or group may, notwithstanding anything
18 Judg.wp no.1921.15
contained in the Maharashtra Local Authority
Members' Disqualification Act, 1986 (Mah. XX of
1987), within a period of one month from the date
of notification of election results, from 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 registered pre-poll
aghadi or front.
(3) If any question arises as regards the
number of Councillors to be nominated on behalf
of such party or group, the decision of the
Corporation shall be final."
24] Insofar as the contention about availability of alternate
remedy is concerned, this Court has already dealt with that aspect in its
earlier judgment reported at 2012(4) Mh.L.J., 874 (supra). The
discussion therein holds good even in the present matter. The issue is
under litigation since the first election on 28-03-2012 and till date there
had been two rounds of this Court and one round of the Hon'ble Apex
Court. This is the third round in which the issue of composition of the
Standing Committee of Akola Municipal Corporation is engaging the
attention. In such situation, we find that the alternate remedy under
Section 451 of the Act, 1949 can not operate as an absolute bar. The
preliminary objection of Adv. Gadhiya that the petitioners have an
alternate remedy & therefore this writ petition should not be entertained,
is erroneous.
19 Judg.wp no.1921.15
25] Though the respondent no.1 Mayor has argued that the order
of cancelling the registration of Fronts passed on 20-08-2012 does not
result in grant of registration or recognition to the petitioners; it is
obvious that, the very same logic then must apply to the other political
parties who wanted a post pole alliance to be registered. The registration
of Mahanagar Sudhar Samiti was cancelled on 20-08-2012 & it
consisted of 24 members viz; 18 members were of Bhartiya Janta Party,
3 members of Akola Vikas Mahasangh, 1 member of Maharashtra Nav
Nirman Sena and 2 independent members. The petitioner no.1 with its
three members namely Sunil Meshram, Sujata Ahir and Madhuri
Meshram joined this Mahanagar Sudhar Samiti afterwards i.e. in terms
of scheme of Section 31A (2) of the Act, 1949. The initial order of
registration of Mahanagar Sudhar Samiti or then of parties which
constituted it as Municipal political parties or front, has not been
provided on record. The copy of order dated 20-08-2012, cancelling
registration of Mahanagar Sudhar Samiti, is also not provided on record.
The other aghadi whose registration is cancelled on that day is Akola
Vikas Mahasangh, consisted of 18 members from Bhartiya Rashtriya
Congress, 5 members from Nationalist Congress Party, 7 members of
Bharip Bahujan Mahasangh, 2 members of Akola Vikas Aghadi and 1
independent member namely Sahajan Parvin Mohd. Naushad. If the
registration is cancelled or declined, it is apparent that, the registration
of both these larger Fronts has been also cancelled.
20 Judg.wp no.1921.15
26] However, the respondent no.2 Municipal Corporation has in
Writ Petition No.2429 of 2015 filed a specific affidavit and therein it
has been pleaded in paragraph no.2 that after the general elections were
held in year 2012 the following political parties or aghadis were
registered by the respondent no.3-Divisional Commissioner. The same
are as under :-
A Akola Vikas Mahaghadi 33 members
B Mahanagar Sudhar Samiti 24 members
C Shiv Senaig 8 members
D Akola Sahar Vikas Aghadi 5 members
In paragraph no.5, the respondent no.2 has pointed out that
after decision of Hon'ble Apex Court the Divisional Commissioner has
registered afresh the political parties/aghadis as under :-
A Bhartiya Janta Party 18 members
B Bhartiya Rashtriya Congress 18 members
C Akola Vikas Aghadi 8 members
D Bharip Bahujan Mahasangh 7 members
E Nationalist Congress Party 5 members
F Akola Vikas Mahasangh 3 members
27] It is pointed out in that affidavit that the number of members
of Shiv Sena and Akola Vikas Aghadi remained unaltered. In the
present matter, we need not to go into other challenges or other niceties.
21 Judg.wp no.1921.15
It is apparent that, the Divisional Commissioner has registered Akola
Vikas Maha Sangh afresh with three members after the judgment of
Hon'ble Apex Court. Petitioner Akola Vikas Mahasangha has produced
communication dated 16.03.2015 sent by the Divisional Commissioner
to its group leader stating that after verification conducted on 10.03.2015
as per directions of the Hon. Apex Court, petitioner is registered under
Maharashtra Local Authority Members (Disqualification) Act, 1987. It
is after this registration that the petitioner no.1 has stepped in the
impugned nomination or election of Standing Committee. The
preliminary objection that petitioner no.1 is not registered therefore
must fall to ground.
28] The objection that necessary parties have not been joined is
equally misconceived as Rama Damodhar Tayde who has been elected
on 13-04-2015 against the seat claimed by the petitioners is already
arrayed as respondent no.11 before this Court.
29] In this background, when the scheme of first proviso to
Section 31A(2) of the Act, 1949 is looked into, it is apparent that, the
seats available on Standing Committee must be given first in full
number as appearing in their respective relative strength. The chart
prepared by the Municipal Secretary in his note can be conveniently
looked into for this purpose as under :-
22 Judg.wp no.1921.15
v- i{kkps uko LknL; i{kh; cykcy LFkk;h lferh
dz- la[;k lnL;kadjhrk
ik= la[;k
1 Hkkjrh; turk ikVhZ 18 4-56 = 3-94 3 $1= 4
2 Hkkjrh; jk"Vªh; dkWaxzsl 18 4-56 = 3-94 3 $1= 4
3 f'kolsuk 8 4-56 = 1-75 1 $1= 2
4 vdksyk fodkl vk?kkMh 8 4-56 = 1-75 1 $1= 2
5 Hkkfji cgqtu egkla?k
7 4-56 = 1-53 1 $0= 1
6 jk"Vªoknh dkWxszl ikVhZ 5 4-56 = 1-09 1 $0= 1
7 vdksyk 'kgj fodkl vk?kkMh 5 4-56 = 1-09 1 $0= 1
8 vdksyk fodkl egkla?k 3 4-56 = 0-65 0 $1= 1
9 vi{k lnL; ig 1 4-56 = 0-21 0 $0= 0
,dw.k 73 & 11 $ 5 = 16
30] Thus, the relevant strength of Bhartiya Janta Party and
Bhartiya Rashtriya Congress has been worked out to 3.94 each and
therefore they have been initially given 3 seats as their relevant strength
consists of whole or full or complete number as "3". This application of
mind can also be seen in relation to parties at serial No.3 to 7 in chart
mentioned supra.
31] After thus distributing 11 seats to political
parties/aghadis/Fronts who have secured complete numbers in relative
strength, 5 seats are still in balance. These 5 seats have been thereafter
given in descending order to the political parties who also have
fraction. Each party, ignoring the value of whole number, has been
given a seat each in descending order as per value of fraction appearing
23 Judg.wp no.1921.15
in its relative strength. While allotting the remaining 5 seats, the
Municipal Secretary has shown that the parties from serial nos. 1 to 4 in
chart supra get an additional seat in lieu of or in recognition of the
fraction number appearing in their relative strength. The highest
fractions available in descending order thereafter pointed out. ".65" or
"0.65" is the relative strength or ratio of the petitioner which is more
than that of Bharip Bahujan Mahasangh for that he had given one seat
to petitioner in WP No.2429 of 2015.
32]
In first proviso under Section 31A(2) of the Act, 1949, it is
very clear that the seats are to be allotted to such parties initially by
considering the whole number appearing in their relative strength
only. If after completing this exercise seats are still remaining, the
balance seats are to be allotted one each to such parties in the descending
order of the fraction number in their respective relative strength. Thus
the value of fraction number alone is to be utilized in descending order
and while doing so, only fraction number is to be looked into. The
provision does not say that the balance seats left are to be allotted to
"remaining" parties i.e. to the parties who could not get representation
in first round as they did not have whole or full number. Similarly, the
fraction cannot be associated with full number to determine its value
because that would defeat the requirement of arranging such fraction
numbers in descending order. Therefore, the Bharip Bahujan
Mahasangh having relative strength of "1.53", as it has "one" as full
24 Judg.wp no.1921.15
number, it gets one seat in the Standing Committee which has been
filled in on 07-04-2015. The descending order of fraction number puts
the petitioners at serial no.5 and Bharip Bahujan Mahasangh with
fraction ratio of ".53" stands at serial no.6. Petitioners fraction is ".65"
which is more in value than that of Bharip Bahujan Mahasangh. As all
fronts, groups etc. are to the extent possible, to be provided
representation on the Standing Committee, Bharip Bahujan Mahasangh
which has a lesser fraction can not be given an additional seat &
petitioner, which has greater fraction number, can not be deprived of it
by associating the fraction ".53" of Bharip Bahujan Mahasangh with its
whole or complete number "1" in relative strength. All parties who have
whole number in their relative strengths, are first entitled to seats on
Standing Committee as per that complete number. There is no provision
for "rounding off " of such fraction. After distribution as per complete
number, the focus in the distribution scheme shifts to those parties who
have fractional representation in their relative strength. This recognition
of & separate treatment to whole number & fraction number in the
legislative scheme appears to be to advance the object of providing the
representation to all on the Standing committee. This object would be
defeated if fraction numbers are arranged in descending order after
associating them with whole number. In a hypothetical case, party with
relative strength of "4" without any fraction will earn only 4 seats on the
Standing Committee while its rival with relative strength of "3.09" will
also have 4 seats due to fraction ".09" which it has over & above whole
25 Judg.wp no.1921.15
number 3. Similarly, two parties securing fraction numbers ".09" & ".
95" will also get fourth seat i.e. one more over & above the seats
earned due to whole number 3. It is in this view of matter, that fraction
& fractional representation appears to be segregated & treated
separately independent of whole number. It is axiomatic that keeping in
mind this scheme & spirit, the greater fraction needs to be catered to
first. If legislature wanted to eliminate the parties which got seats in
first round from zone of consideration in second round, it would have
indicated accordingly in first proviso to S. 31A(2) of Act,1949. We can
not add the word like "remaining" or on those lines, in the said legal
provision & read it as "allotted one each to the "remaining" recognized
parties or registered parties or groups or aghadi or front in the
descending order of the fraction number". The provision is
unambiguous & workable as it stands. Legislative intent is discernible
from it clearly. When "balance" seats are being allotted & fraction
number is the only factor to be looked at, greater fraction number can
not be bye passed. Hence, grant of one seat to the petitioners and said
proposal of Municipal Secretary in his office note appears to be in
consonance with the proviso to Section 31A(2) of the Act, 1949.
33] We find that, therefore, though the petitioners are not entitled
to grant of a seat in first round of allotment when seats are allotted
against whole number in relative strength; in later round because its
relative strength, though in fraction, is more than Bharip Bahujan
26 Judg.wp no.1921.15
Mahasangh, petitioner no. 1 becomes entitled to 1 seat. The denial of
that seat to the petitioners on 13.03.2015 is therefore unsustainable.
Consequently the nomination of respondent no.11 against that seat on
13-04-2015 is also unsustainable.
34] In view of this discussion, the election of respondent no.11
against said seat on 13-04-2015 is quashed and set aside. The said
vacancy needs to be filled in through a representative of Akola Vikas
Maha Sangh i.e petitioner no.1. If any such nomination is already
submitted by the petitioner no.1 Akola Vikas Maha Sangh the
respondent no.2 shall arrange to hold a General Body Meeting in
accordance with law at the earliest to consider that nomination.
35] Writ Petition No.2429 of 2015 is, thus, partly allowed and
disposed of. Rule made absolute therein accordingly. No costs.
36] Writ Petition No.1921 of 2015 is, dismissed. Rule discharged.
No costs.
JUDGE JUDGE
Deshmukh/Dragon
