Bombay High Court
Shri. Anil (Vidyarthi) ... vs State Of Maharashtra, Through ... on 11 March, 2016
Bench: S.C. Dharmadhikari
Jud.WP.11278.2012&WP.1016.2013.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITIOIN NO. 11278 OF 2012
Shri Anil (Vidyarthi) }
Chanderlal Ailani }
Age 47 years, Indian }
Inhabitant, Residing at }
Room No. 7 and 8, Barrack }
No. 595, O. T. Section, }
Ulhasnagar - 2, }
District - Thane. } Petitioner
versus
1. State of Maharashtra }
Secretary, Government of
Represented by the Principal }
}
Maharashtra, Ministry of }
Urban Development, }
Address at Mantrlaya, }
Mumbai. }
}
2. Ulhasnagar Municipal }
Corporation, }
through the Commissioner, }
office at Ulhasnagar }
Municipal Corporation, }
Ulhasnagar - 3, }
District Thane. }
}
3. The Mayor/Presiding }
Officer, }
[Smt. Asha Raju (Jeevan) }
Indian], Ulhasnagar }
Municipal Corporation, }
Office at Ulhasnagar }
Municipal Corporation, }
Ulhasnagar - 3, }
District Thane. }
}
4. Shri Manoj Dilipkumar }
Sayani, }
Adult, Indian Inhabitant. }
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5. Shri Sanmukh Gyanchand }
Manwani, }
Adult, Indian Inhabitant. }
}
6. Shri Raju (Jeevan) }
Chandrabhan Indnani, }
Adult, Indian Inhabitant. }
}
7. Shri Pradip Arjundas }
Ramchandani, }
Adult, Indian Inhabitant. }
}
8. Shri Bhanaji Bhikari }
More, Adult, }
Indian Inhabitant. }
}
All Respondent Nos. 4 to 8
ig }
being the nominated }
Corporators of Respondent }
No. 2, having their offices at }
Ulhasnagar Municipal }
Corporation, Ulhasnagar - 3, }
District Thane. } Respondents
WITH
WRIT PETITION NO. 1016 OF 2013
Practicing Architects and }
Engineers Association of }
Bhivandi, }
Having registered office at }
188, NEAT and Associates, }
Maharashtra, Bhivandi, }
District: Thane. Regd. }
No. MHA/75/92/THN. }
Through its President Jalal }
M. Ansari, Engineer. } Petitioner
versus
1. Government of }
Maharashtra }
Through its Urban }
Development Ministry, }
Mantralaya, Mumbai. }
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2. Municipal Corporation of }
City of Bhivandi Nijampur, }
Bhivandi, District Thane. }
}
3. Municipal Commissioner }
Municipal Corporation of }
City of Bhivandi Nijampur, }
Bhivandi, District Thane }
}
4. State Election Commission }
Maharashtra State. }
}
5. Khalid Mukhtar Shaikh, }
Leader of The House, }
Municipal Corporation of }
City of Bhivandi Nijampur. }
ig }
6. Mukhtar Mohamad Ali }
khan, }
Leader of Opposition, }
Municipal Corporation of }
City of Bhivandi Nijampur. }
}
7. Arif Kalam Shaikh, }
Leader of Samajwadi Party }
Municipal Corporation of }
City of Bhivandi Nijampur. }
}
8. Javed Gulammohamad }
Dalvi }
Leader of Congress party in }
Municipal Corporation of }
City of Bhivandi Nijampur. }
}
9. Nilesh Chaudhari }
Leader of B. J. P. in }
Municipal Corporation of }
City of Bhivandi Nijampur }
10. Dilip Devidas Gudvi }
Leader of Shiv-Sena in }
Municipal Corporation of }
City of Bhivandi Nijampur }
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11. Vilas R. Patil, }
Leader of Konark Aghadi, }
Municipal Corporation of }
City of Bhivandi Nijampur. }
}
12. Pratibha Vilas Patil, }
Mayor of Municipal }
Corporation of City of }
Bhivandi Nijampur. }
}
13. Subhash Bhagwan Mane }
Nominated Council of }
Bhivandi Municipal }
Corporation. }
}
14. Prakash Rajaram Tavre, }
Nominated Council of ig }
Bhivandi Municipal }
Corporation. }
}
15. Sumeet Purushottam }
Patil }
Nominated Council of }
Bhivandi Municipal }
Corporation. }
}
16. Khan Mohd. Noman }
Badruddin }
H. No. 454, R. No. 101, }
Dr. Anees Building, }
Dhobi Talab, New Gauripada, }
Bhiwandi - 421302. } Respondents
Mr. J. M. Puranik for the Petitioner in
WP/11278/2012.
Mr. S. M. Gorwadkar - Senior Advocate
with Ms. Neeta Karnik, Mr. Sujay Gangal,
Mr. Gurudas Gorwadkar, Mr. Mankiral
Singh and Mr. Kuldip T. Pawar for the
Petitioner in WP/1016/2013.
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Mr. A. B. Vagyani - Government Pleader
with Mr. Vishal B. Thadani - AGP and Ms.
Tintina Hazarika for Respondent No. 1 in
both the Petitions.
Mr. Vijay Patil for Respondent No. 2 in
WP/11278/2012.
Mr. Jaiwant S. Chandnani for Respondent
No. 4 in WP/11278/2012.
Mr. A. A. Kumbhakoni - Senior Advocate
i/b. Mr. N. R. Bubna with Mr. Shardul
Singh for Respondent Nos. 5 to 7 in
WP/11278/2012.
Mr. N. R. Bubna with Ms. Pooja Singh
Malik for Respondent Nos. 2 and 3 in
WP/1016/2013.
Ms. Shriya Jadhav i/b. Mr. Sachindra B.
Shetye for Respondent No. 4 in
WP/1016/2013.
Mr. Amol P. Mhatre for Respondent Nos.
13 to 16 in WP/1016/2013.
CORAM :- S. C. DHARMADHIKARI,
K. R. SHRIRAM &
B. P. COLABAWALLA, JJ.
Reserved on :- JANUARY 15, 2016
Pronounced on :- MARCH 11, 2016
JUDGMENT :- (Per S. C. Dharmadhikari, J.)
1) This Full Bench has been constituted to answer the
following question:-
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"Whether a remedy of election dispute under Section 16
of the said Act or Section 21 of the said Act of 1965 is
available to a voter who is entitled to vote in General
Ward Elections for challenging the election/nomination of
a nominated Councillor?"
2) Some facts necessary for the purpose of a decision on
the question and the backdrop of the reference be noted now.
3) The Petitioner in Writ Petition No. 11278 of 2012 had
been an elected Councillor of the Ulhasnagar Municipal
Corporation and completed his tenure of five years from 2007 to
2012. He claims that he is eligible as well as qualified for being
nominated as a Councillor, in terms of the Maharashtra Municipal
Corporation (Qualifications and Appointment of Nominated
Councillors) Rules, 2012. Apart from impleading the State of
Maharashtra, the Corporation, Mayor/Presiding Officer, the
Petitioner therein has impleaded Respondent Nos. 4 to 8, who
were nominated as Councillors of that Corporation by the State, in
terms of the above Rules. These Rules were notified vide
Notification dated 28th February, 2012.
4) The Petitioner also relies upon the General Body
Resolution passed at a meeting of the Council dated 9 th April,
2012, by which, these five persons were nominated as
Councillors.
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5) The Petitioner challenges the process of nomination
and thereafter refers to the Rules of 2012 in detail. The
Petitioner applied for being nominated as a Councillor and
forwarded his form. Apart from the Petitioner, 14 others also
filled in their application forms. The scrutiny was undertaken of
such forms and the Municipal Commissioner, then, made the
recommendations. Taking into consideration these
recommendations, it was expected that the nominations would be
made in terms thereof. ig However, the Resolution nominating
Respondent Nos. 4 to 8 was passed. It has been challenged on the
ground that that these persons were not eligible. They were
nominated even without considering the recommendations of the
Municipal Commissioner.
6) It is in these circumstances that after registering their
protest and seeking information under the Right to Information
Act, 2005 that the Petitioner challenged the nominations on
various grounds set out in the Petition.
7) The prayer in the Petition is to call for the records and
proceedings pertaining to these nominations and to declare the
Resolution nominating Respondent Nos. 4 to 8 as illegal,
unconstitutional, unjust and unfair. By prayer clause (b), the
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Petitioner is seeking a declaration that he should be nominated as
Councillor of the Ulhasnagar Municipal Corporation.
8) The other reliefs are ancillary and incidental to the
above principal reliefs.
9) Writ Petition No. 1016 of 2013 is filed by an
Association of practicing Architects and Engineers, Bhivandi.
That Association is aggrieved and dissatisfied with the
nominations of Councillors on Bhivandi Nijampur Municipal
Corporation. It is also challenging part of Rule 5(1) of the
Nomination Rules of 2012.
10) This Petition arrays and impleads several parties as
Respondents other than statutory authorities. Respondent Nos.
13 to 15 to this Petition are nominated Councillors of the
Bhivandi Nijampur Municipal Corporation. Apart from elected
Councillors, relying upon the 2012 Rules, the Municipal
Secretary, on 20th October, 2012, wrote to various political
parties and groups requesting to recommend names for
nomination of Councillors.
11) Thereafter, various municipal Councillors of certain
political parties recommended the name of Respondent No. 7, who
is also member of the Petitioner Association. It is averred in the
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Petition that on 27th November, 2012, the Municipal
Commissioner, on the advice of the political parties,
recommended names of Respondent Nos. 13 to 15, along with
others to be nominated, but none from the Petitioner's members
was recommended. Alleging that the Rules have been violated by
seeking to nominate ineligible candidates and persons, the notice
and agenda of the General Body Meeting convened for the
purpose of nominating Councillors are challenged in this Writ
Petition on various grounds. The Petitioner apprehends that the
nominations would be made and contrary to the Rules. Prayer
clauses (b) and (c) of this Writ Petition read as under:-
"(b) Respondent No. 2 and 3 be directed to fill one
vacancy out of five nominated Councillors in accordance
with Sec. 5(b) of the B. P. M. C. Act read with Rule 4(d)
and second proviso of Rule 5 of the Maharashtra
Municipal Corporation Qualification and Appointment of
nominated councillors Rules, 2012 by nominating a
member of Petitioner Association.
(c) Respondent Nos. 2 and 3 be directed to quash the
nominations of two Respondents out of Respondent
Nos.13 to 15 as nominated Councillors of Respondent
No.2, which are contrary to 2nd proviso of Rule 5 and the
vacancies created may be filled in accordance with
sec.5(b) of B. P. M. C. Act read with Rule 4(a) to (d) and
(f) read with second proviso of Rule 5 of Maharashtra
Municipal Qualification and Appointment of Nominated
Councillors Rules, 2012."
12) Both Petitions were placed before a Division Bench of
this Court on 12th August, 2014 and the Court noted a
preliminary objection raised by the contesting Respondents to the
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effect that remedy of presenting a Election Dispute under section
16 of the Maharashtra Municipal Corporations Act, 1949 (for
short "the MMC Act") is available to the Petitioner. Reliance was
placed on a judgment delivered on 20th September, 2003 by a
Division Bench of this Court in Writ Petition No. 5665 of 2002 in
the case of Ashok Bodha vs. The Municipal Corporation of the
City of Ulhasnagar and Ors. The Division Bench specifically
considered the issue whether a remedy of Election Dispute is
available to challenge the nomination/election of the nominated
Councillors and held that such a remedy is available.
13) However, there was another judgment of a Division
Bench later in point of time, delivered on 10th June, 2014 in Writ
Petition No. 8962 of 2013 (Sharanbasappa Rachappa Khambad
vs. State of Maharashtra and Ors.). Similar provision of the
Maharashtra Municipal Council, Nagar Panchayat and Industrial
Township Act, 1965 (for short "the Municipal Councils Act")
(section 21) was considered and it was held by that Division
Bench that the remedy of an Election Dispute/Petition is not
available to challenge the appointment of nominated Counsillors
and, finding that there is a clear conflict in the views of the two
Division Benches that the above question has been referred.
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14) Once having cleared the background in which the
question has been referred, we now turn to the rival contentions.
15) Mr. Gorwadkar, learned Senior Counsel appearing for
the Petitioner in Writ Petition No. 1016 of 2013 submits that the
definition of the term "Councillor" as appearing in section 2(11)
in the MMC Act has not been referred in its entirety in Ashok
Bodha's case (supra). Mr. Gorwadkar submits that there is a
fundamental error in the view taken in Ashok Bodha's case
(supra), for, a nominated Councillor cannot be equated with
elected one. His position in the Council is peculiar. A nominated
Councillor, as the statute itself indicates, does not have a right to
vote at any meeting of the Corporation and Committees of the
Corporation and to get elected as a Mayor of the Corporation or a
Chairperson of any of the Committees of the Corporation. Thus,
an elected Councillor possessing such rights does not stand at par
with a nominated Councillor. The nominated Councillor enters
the Municipal Corporation for his special knowledge or
experience in municipal administration and his nomination is by
the Corporation in such manner as may be prescribed. The term
prescribed means prescribed by the Rules. Mr. Gorwadkar then
relies upon the Rules of 2012 to submit that the qualifications for
nomination are laid therein. Mr. Gorwadkar was at pains to point
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out that these qualifications and the eligibility criteria evolved by
the Rules so also the process of nomination are peculiar to a
nominated Councillor. These qualifications and eligibility criteria
cannot be applied for elections and by the voters, meaning
thereby they do not have to be fulfilled by a candidate at the Ward
elections. Then, he invites our attention to Rule 5 of the Rules
and submits that this Rule would indicate that nomination is
nothing but an appointment. There are recommendations made
by the Commissioner and the Corporation, in terms of Rule 5(2),
after considering their recommendations, nominates the
Councillor. This provision is extremely important and the
strength of the nominated Councillors is also indicated. This is
not a popular election and hence, the difference or distinction
between election and nomination is apparent. There is no
provision and there is no remedy or procedure to question the
nomination. In the circumstances, the Petitioner cannot avail of
the remedy of an Election Petition or dispute and can only
present a Writ Petition under Article 226 of the Constitution of
India. Since the authorities are performing a statutory/public
duty, a Writ Petition to question the nomination and the
nomination process as well is perfectly maintainable. Hence,
Ashok Bodha's case (supra) does not lay down the correct law and
should be overruled.
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16) Mr. Gorwadkar, then, invites our attention to the
language of section 16 of the MMC Act. He submits that on a plain
reading of that section, it is apparent that the process of
nomination or nominated Councillors are not included in the
same. The Election Petitions lie to the Judge for the
determination of the dispute or question raised in terms of sub-
section (1) of section 16 of the MMC Act. By sub-section (2) of
section 16, the State Election Commissioner may, if it has reason
to believe that an election has not been a free election by reason of
the large number of cases in which undue influence or bribery has
been exercised or committed, he may, by order in writing,
authorise any officer of the Commission to make an application to
the Judge at any time within one month after the result of the
election has been declared for declaration that the election of the
returned candidate or candidates is void. By sub-section (2A), it
is specified that no election to any Corporation shall be called in
question except by an Election Petition presented to the Judge
referred to in sub-section (1) and no Judge other than the Judge
referred to in sub-section (1) shall entertain any dispute in
respect of such election. Then, there is an Explanation which
defines what is corrupt practice. Mr. Gorwadkar submits that the
legislature has advisedly not inserted the word "nomination" in
any of these sub-sections. The word "nomination" appearing in
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sub-section (1) of section 16 is not referring to the nomination of
Councillor but a nomination paper at a election to elect a
Councillor. Hence, the basic difference between an election and
nomination is clearly outlined in this provision. Nomination is a
selection and for selection, the constitutional bar enshrined in
Article 243ZG(b) is not attracted. Hence, the premise upon
which the judgment in the case of Ashok Bodha (supra) proceeds
is erroneous and illegal. The scheme of 2012 Rules and other
sections or Rules is different and not identical.
ig It is in these
circumstances the judgment in Sharanbasappa's case (supra)
lays down the correct law. The bar enacted in Article 243ZG is
applicable only to elections. This Article, therefore, should be
strictly interpreted and construed. If it is construed in this
manner, a Writ Petition under Article 226 of the Constitution of
India to challenge the appointment of nominated Councillors is
maintainable.
17) In support of his above contentions, Mr. Gorwadkar
placed reliance on the following judgment:-
(i) Uttar Pradesh Power Corporation Limited vs.
AyodhyaPrasad Mishra and Anr., (2008) 10 SCC 139 .
18) Mr. Gorwadkar is supported in his arguments by
another Counsel Ms. Neeta Karnik. She would submit that we
must also look at section 31A of the MMC Act, as that throws light
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on the controversy. That refers to appointment by nomination to
certain Committees, the nomination made by proportional
representation. She would, therefore, submit that we must follow
the judgment in Sharanbasappa's case (supra) and overrule the
earlier view.
19) Mr. A. A. Kumbhakoni, learned Senior Counsel
appearing for the Respondents opposed the arguments of
Mr.Gorwadkar and Ms. Karnik. Mr. Kumbhakoni submits that we
are dealing with two different statutes and which are involved in
the two Writ Petitions. First is the MMC Act and the second is the
Municipal Councils Act. In the earlier Act, namely the MMC Act,
the definition of the term "nominated Councillor" must be noticed
in its entirety. So noticed, it would be apparent that the MMC Act
is enacted to provide for the establishment of Municipal
Corporations for larger urban areas except Greater Mumbai in
the State of Maharashtra. Section 2(11) is a definition of the
word "Councillor". As the definition section opens, any definition
can be read in the provisions of the MMC Act, unless there is
something repugnant in the subject or context. Therefore, to read
this definition, as it stands, for deciding the issue of
maintainability of an Election Petition, would not be proper and
correct. The distinction made in section 16 of the MMC Act and
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Section 21 of the Municipal Councils Act for the purpose of
maintainability of Election Dispute or Petition is incorrect and
erroneous. The view taken in the case of Sharanbasappa (supra),
which was the statute involved in that case, that "presence of the
words or nomination of a Councillor may be called in question
only at the instance of a candidate at the election or by any
person entitled to vote at the election" in section 21 would not
take within its purview or import a person who was seeking
nomination is a very narrow and restricted interpretation of the
provision. The words employed by the legislature and reproduced
above would mean that even a person interested is nominated as
a Councillor is included. The words being plain and unambiguous,
they should be given full effect. With such broad words and
phrases being used, the statutory provision should be allowed to
run its full course. The view taken in Sharanbasappa's (supra)
cannot be sustained for it whittles down and dilutes the scope of
the remedy unnecessarily. It is erroneous to assume that the
remedy of Election Petition or raising an Election Dispute under
section 21 is available only to a Councillor elected at a general
election and not to others. The remedy is available to both, a
person seeking to nominate himself as a nominated Councillor
because he is a candidate within the meaning of sub-section (1) of
section 21 and also to a person entitled to vote at the general
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election. In short, no distinction can be made as far as this
remedy is concerned between a direct election or any indirect
process, more so, a nomination.
20) In broad sense, both, direct election and nomination
are nothing but elections. The word election is not defined in the
statute and must, therefore, take its meaning from common
parlance. In the context and backdrop in which it is appearing in
the statute, it must take within its fold even a nomination.
21)
Once, according to Mr. Kumbhakoni, this ground is
cleared, then, the presence or absence of the word 'nomination',
particularly in another statutory provision like section 16 of the
MMC Act is not relevant. The remedy of Election Petition is
available for both categories of persons noted above.
22) Pertinently, Mr. Kumbhakoni submits that by sub-
section (2) of section 16, other remedies to challenge the election
are expressly barred. There, the word 'Councillor' is absent.
23) Once sub-sections (1) and (2) so also sub-section (2A)
of section 16 are read together and harmoniously, it would be
apparent that even the selection or appointment or election of a
nominated Councillor can be challenged. As far as a Municipal
Corporation is concerned, according to Mr. Kumbhakoni, Mr.
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Gorwadkar's arguments concede the position that after all the
applications are received by the Commissioner and he verifies
and scrutinises them and makes the recommendations, his
recommendations are placed before the General Body of the
Corporation. That General Body, in a way elects one of the
candidates or applicants and nominates him to the Municipal
Corporation. Therefore, in a way, it is an election and must be
brought within the purview of sub-section (1) of section 16 of the
MMC Act. It cannot be that the legislature contemplates that one
set of election, namely general election can be questioned only by
a Election Petition under the statute, whereas, other process
equally of election must be subjected to scrutiny under general
law. That would give rise to multiplicity of proceedings and
adversely affect the municipal administration. Eventually,
municipal and local administration is nothing but an assurance
and guarantee of Government at the local level under the
constitution. All these are local units of self Government and
therefore, strive to improve the life of the residents. They are
constituted and given a status by the Constitution of India so that
they serve the public at large, efficiently and effectively. If these
are such units and managed and administered for the public,
then, an interpretation which would facilitate the governance
smoothly and not obstruct or hinder it, must be placed on this
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provision. Merely because the words "candidate at the election"
are absent in sub-section (1) of section 16 that does not make any
difference. The interpretation as placed on these provisions
would indicate that the remedies under both statutes are
available even in cases of appointments and selection as
nominated Councillors. Hence, the judgment in the case of
Sharanbasappa (supra) to the above extent be held to be
incorrectly and erroneously decided and the view in Ashok
Bodha's case (supra) be confirmed.
24) Though Mr. Kumbhakoni was appearing for one of the
contesting Respondents, at our request, he has rendered
invaluable assistance to the Court. We appreciate his fair stand.
For an Advocate designated as Senior Advocate by this Court, the
first and foremost duty is to assist the Court in interpreting and
construing the legal provision. The duty to the client is
subservient and secondary in this case. The Court looks upon
him for assistance. The Court looks to him for valuable inputs
while construing and interpreting a statute or deciding a vexed
question of great public importance. Thus, both views were
presented by Mr. Kumbhakoni effectively.
25) Mr. Kumbhakoni relied upon the following decisions in
support of his contentions:-
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(i) The Vanguard Fire and General Insurance Co. Ltd.,
Madras vs. M/s. Fraser and Ross and Another, (1960) 3
SCR 857.
(ii) State of Maharashtra vs. Indian Medical Association
and Ors., (2002) 1 SCC 589 .
(iii) Dinesh Prasad Yadav vs. State of Bihar and Ors.,
1995 Supp (1) SCC 340 .
26) As far as the State is concerned, Mr. Vagyani, learned
AGP has more or less supported Mr. Gorwadkar and contended
that the Petitioner in Writ Petition No. 11278 of 2012 was an ex-
Municipal Councillor from Ulhasnagar Municipal Corporation and
is presently not an elected Municipal Councillor. The Petitioner is
therefore not entitled to vote at the election of a nominated
Councillor. The Petitioner has, by way of the present Writ
Petition, challenged the election of Respondent Nos. 4 to 8 to the
Petition, who are nominated Councillors. However, in view of the
fact that the Petitioner is admittedly not a elected Councillor, and
not entitled to vote in the election of a nominated Councillor, he
cannot challenge the election of Respondent Nos. 4 to 8 as the
remedy of filing an Election Petition is available only to elected
Councillor who is a voter in the election process of a nominated
Councillor. Therefore, the Writ Petition itself is not maintainable.
In Writ Petition No. 1016 of 2013, the Petition has been filed by
an Association challenging the nomination of any two nominated
Councillors, namely, from Respondent Nos. 13 to 15. The
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challenge to the nomination of a nominated Councillor can only be
by way of an Election Petition which can be filed only by an
elected Councillor who is entitled to vote in the election of a
nominated Councillor. In a way, Mr. Vagyani supports the
narrow and restricted view.
27) For properly appreciating the rival contentions, we
would reproduce the two relevant sections, namely section 16 of
the MMC Act and section 21 of the Municipal Councils Act. They
read as follows:-
In the MMC Act:
"16. Election petitions.
(1) If the qualification of any person declared to be
elected a councillor is disputed, or if the validity of
any election is questioned, whether by reason of the
improper rejection by the State Election
Commissioner of a nomination, or of the improper
reception or refusal of a vote, or by reason of a
material irregularity in the election proceedings
corrupt practice, or any other thing materially
affecting the result of the election, any person
enrolled in the municipal election roll may at any
time within ten days after the result of the election
has been declared submit an application to the Judge
for the determination of the dispute or question.
(2) The State Election Commissioner may, if it has
reason to believe that an election has not been a free
election by reason of a large number of cases in
which undue influence or bribery has been exercised
or committed by order in writing, authorise any
officer of the Commission to make an application to
the Judge at any time within one month after the
result of the election has been declared for
declaration that the election of the returned
candidate or candidates is void.
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(2A) No election to any Corporation shall be called
in question except by an election petition presented
to the Judge referred to in sub-section (1) and no
Judge other than the Judge referred to in sub-
section (1) shall entertain any dispute in respect of
such election.
(3) The Judge shall decide the applications made
under sub-section (1) of (2) after holding an inquiry
in the manner provided by or under this Act.
Explanation.- For the purposes of this section-
(1) "Corrupt practice" means one of the following
practices, namely:-
(a) any gift, offer or promise by a candidate
or his agent or by anyperson with the
connivance of a candidate or his agent of any
gratification, pecuniary or otherwise to any
person whomsoever, with the object directly or
indirectly of inducing a person to stand or not
to stand as, or to withdraw from being a
candidate at an election or a voter to vote or
refrain from voting at an election or as a
reward to a person for having so stood or not
stood or for having withdrawn his candidature
or a voter for having voted or refrained from
voting;
(b) any direct or indirect interference or
attempt to interfere on the part of a candidate
or his agent or of any other person with the
connivance of the candidate or his agent with
the free exercise of any electoral right,
including the use of threats of injury of any
kind or the creation or attempts to create fear
of divine displeasure or spiritual censure, but
not including a declaration of public policy or a
promise of public action or the mere exercise
of a legal right without intent to interfere with
a legal right;
(c) the procuring or abetting or attempting
to procure by a candidate or his agent or by
any other person with the connivance of a
candidate or his agent, the application by a
person for a voting paper in the name of any
other person whether living or dead or in a
fictitious name or by a person for a voting
paper in his own name when, by reason of the
fact that he has already voted in the same or
some other ward, he is not entitled to vote;
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(d) the removal of a voting paper from the
polling station during polling hours by any
person with the connivance of a candidate or
his agent;
(e) the publication by a candidate or his
agent or by any other person with the
connivance of the candidate or his agent of any
statement of fact which is false, and which he
either believes to be false or does not believe to
be true, in relation to the personal character or
conduct of any candidate, being a statement
reasonably calculated to prejudice the
prospects of that candidate's election;
(f) any acts specified in paragraphs (a), (b),
(d) and (e) when done by a person who is not a
candidate or his agent or a person acting with
the connivance of a candidate or his agent;
(g) the application by a person at an
election for a voting paper in the name of any
other person, whether living or dead, or in a
fictitious name, or for a voting paper in his own
name when, by reason of the fact that he has
already voted in the same or another ward, he
is entitled not to vote; or
(h) the receipt of, or agreement to receive,
any gratification of the kind described in
paragraph (a) as a motive or reward for doing
or refraining from doing any of the acts therein
specified.
(2) a corrupt practice shall not be deemed to have
been committed in the interests of a returned
candidate if the Judge is satisfied that it was of a
trivial and limited character which did not affect the
result of the election, that in all other respects the
election was free from any corrupt practice on the
part of the candidate or any of his agents, that it was
committed without the sanction or connivance or
contrary to the orders of the candidate or his agents,
and that the candidate and his agents took all
reasonable means for preventing the commission of
corrupt practices at the election.
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In the Municipal Councils Act:
"21. (1) No election, or nomination of a Councillor
may be called in question, except by a petition presented
to the District Court, by a candidate at the election or by
any person entitled to vote at the election, within ten
days from the date of publication of the names of the
Councillors in the Official Gazette under section 19 or 20,
as the case may be.
(2) Any such petition--
(a) shall contain a concise statement of the material
facts on which the petitioner relies ;
(b) shall, with sufficient particulars, set forth the
ground or grounds on which the election, or nomination
is called in question ; and
(c) shall be signed by the petitioner and verified in the
manner laid down in the Code of Civil Procedure, 1908,
for the verification of pleadings.
(3) A petitioner may claim all or any one of the
following declarations :--
(a) that the election of all or any of the returned
candidates is void ; or
(b) that the election of all or any of the returned
candidates is void and that he himself or any other
candidates has been duly elected ; or
(c) that the nomination of all or any of the nominated
Councillors is void.
(4) A petitioner shall join as respondents to his petition
--
(a) where the petitioner claims a declaration under
clause (a) of sub-section (3), the returned candidate or
candidates in respect of whom such declaration is
claimed;
(b) where the petitioner claims a declaration under
clause (b) of sub-section (3), all the contesting
candidates other than the petitioner;
(c) any other candidate against whom allegations of
any corrupt or illegal practice are made in the petitions;
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(d) where the petitioner claims a declaration under
clause (c) of sub-section (3), all or any of the nominated
Councillors in respect of whom such declaration is
claimed and the Council who nominated the Councillor
member.
(5) Such petition shall be inquired into and disposed of
by the District Judge or by any Judge not lower in rank
than an Assistant Judge to whom the case or such cases
generally may be referred to by the District Judge.
(6) All petitions under sub-section (1)--
(a) in which the validity of the election of Councillors
elected to represent the same ward is in question shall be
heard by the same Judge ; and
(b) in which the validity of the election of the same
Councillor elected to represent the same ward is in
question shall be heard together.
(7) For the trial of such petition, the Judge shall have
all the powers of a Civil Court including powers in
respect of the following matters :--
(a) discovery and inspection;
(b) enforcing the attendance of witnesses and
requiring the deposit of their expenses;
(c) compelling the production of documents ;
(d) examining witnesses on oath ;
(e) granting adjournments;
(f) reception of evidence on affidavit; and
(g) issuing commissions for the examination of
witnesses ; and the Judge may summon and examine suo
motu any person whose evidence appears to him to be
material. The Judge shall be deemed to be a Civil Court,
within the meaning of sections 480 and 482 of the £Code
of Criminal Procedure, 1898.
(8) Notwithstanding anything contained in the Code of
Civil Procedure, 1908 the Judge shall not permit--
(a) any application to be compromised or withdrawn;
or
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(b) any person to alter or amend any pleading, unless
he is satisfied that such application for compromise or
withdrawal or the application for such alteration or
amendment is bona fide and not collusive.
(9) The Judge, after such inquiry as he deems
necessary, may pass suitable. order and his order shall
be conclusive.
(10) If the petitioner has, in addition to calling in
question the election of the returned candidate, claimed
a declaration that he himself or any other candidate has
been duly elected and the Judge is satisfied that--
(a) the petitioner or such other candidate received
sufficient number of valid votes to have been elected ; or
(b) but for the votes obtained by the returned
candidate by corrupt practices the petitioner or such
other candidate would have obtained a sufficient number
of valid votes to have been elected ; the Judge may, after
declaring the election of the returned candidate void,
declare the petitioner or such other candidate to have
been duly elected :
Provided that--
(i) for the purpose of such computation, no vote shall
be reckoned as valid if the Judge finds that any corrupt
practice was committed by any person known or
unknown in giving or obtaining it;
(ii) after such computation, if any equality of vote is
found to exist between any candidates and the addition
of one vote would entitle any of the candidates to be
declared elected, one additional vote shall be added to
the total number of valid votes found to have been
recorded in favour of the candidate, or candidates, as the
case may be, selected by lot drawn in the presence of the
Judge in such manner as he may determine.
(11) Where any charge is made in the petition of any
corrupt practice, the Judge shall make an order
recording the names of all persons including any
candidates, if any, who have been proved at the trial to
have been guilty of any corrupt practice and the nature
of that practice and may disqualify any such person for
becoming a Councillor or Member of any other local
authority for such period not exceeding six years but not
less than two years from the date of the order, as the
Judge may specify in the order :
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Provided that, no person shall be named in such order
unless--
(a) he has been given notice to appear before the Judge
and to show cause why he should not be so named; and
(b) if he appears in pursuance of the notice, he has
been given an opportunity of cross-examining any
witness who has already been examined by the Judge
and has given evidence against him, of calling evidence
in his defence and of being heard.
(11A) If the validity of any election is called in
question only on the ground of an error made by an
officer charged with carrying out the provisions of clause
(b) or (c) of sub-section (2) of section 9 or of the rules
made under section 17 or of an irregularity or
informality not corruptly caused, the Judge shall not set
aside the election.
(12) If the Judge sets aside the election of candidate on
the ground that a corrupt practice has been committed
by the returned candidate or his election agent or by any
other person with the consent of the candidate or his
election agent and if such candidate's name has not been
included in any order made under sub-section (11), the
Judge shall declare such candidate disqualified for
becoming a Councillor or Member or any other local
authority of such period not exceeding six years but not
less than two years from the date of the order, as the
Judge may specify in the order.
(13) The Judge may also make an order fixing the total
amount of costs payable and specifying the person by
and to whom costs shall be paid. Such costs shall be
recoverable as if they had been awarded in a suit under
the Code of Civil Procedure, 1908."
28) In all fairness to the learned Counsel appearing for
respective parties, we must note that the term "election" is
defined in the Municipal Councils Act in section 2(12) to mean an
election to a Council and including any by-election.
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29) The term "Councillor" is identically defined in both
enactments and the definition in that behalf in the MMC Act and
Municipal Councils Act reads as under:-
In the MMC Act:-
"2(11) "Councillor" means a person duly elected as a
member of the corporation; and includes a nominated
Councillor who shall not have the right,-
(i) to vote at any meeting of the Corporation and
Committees of the Corporation; and
(ii) to get elected as a Mayor of the Corporation
or a Chairperson of any of the Committees of the
Corporation"
In the Municipal Councils Act :-
2(7) "Councillor" means a person duly elected as
member of the Council and includes the nominated
Councillor, who shall not have the right,-
(i) to vote at any meeting of the Council and
Committees of the Council; and
(ii) to get elected as a President of the Council or
a Chairperson of any of the Committees of the
Council."
30) The Maharashtra Municipal Corporation Act is the
earlier Act of 1949. We would refer to it in the first instance.
31) That Act is divided into several Chapters. The first
Chapter contains the preliminary sections, including the
definitions. Though we have referred to the definition of the term
"Councillor" and reproduced it in the foregoing paragraph, some
other definitions are also relevant. The terms "Assembly
Constituency" and "Assembly Roll" are defined respectively in
section 2(2B) and (2C). The word "Commissioner" is defined in
section 2(9) and the word "Corporation" is defined in section
2(1). The word "the Judge" is defined in section 2(29) to mean in
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the city of Pune, the Judge of the Court of Small Causes and in any
other city, the Civil Judge (Senior Division) having jurisdiction in
the city. The other definition is that of the term "prescribed"
appearing in section 2(46A). The word "Regulation" is defined in
section 2(55) and the word "Rules" and "Schedule" are defined in
section 2(58) and 2(59) respectively. The other sections which
are under Chapter II titled as Constitution are divided into
Municipal authorities, Municipal Election Roll, Qualifications and
disqualifications of Voters and Councillors.
32) The other important sub-heading is of election of
Councillors. Then there are other sub-headings, and we need not
make a detailed reference to the same.
33) By section 5, the Corporation is constituted. It is
constituted by name as a Municipal Corporation of the city to be a
body corporate and has perpetual succession and a common seal
and by such name may sue and be sued. The number of
Councillors are specified in section 5(2). Clause (a) thereof
provides for Councillors elected directly at ward elections and
clause (b) provides for 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.
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34) The obligation of the State Election Commission to
divide the city into Wards for election of Councillors is set out and
we are then not concerned with the sub-sections of this section.
35) A bare perusal of this provision will indicate as to how
the Corporation shall consist of Councillors elected directly at
ward elections and nominated Councillors.
36) By section 5A, the reservation of seats for scheduled
caste, scheduled tribe, backward class citizens and women may be
determined by the State Election Commission in the prescribed
manner and by section 5B the requirement for a reserved
category candidate to furnish Caste Validity Certificate is set out.
37) By section 6, the duration of the Corporation and by
section 6A term of office of Councillors and by section 6B election
to constitute Corporation are the provisions which, together with
section 7, provide for a resignation of the office by the Councillors.
By section 7A preparation of Municipal Election Roll for
facilitating election are the provisions inserted in The
Maharashtra Municipal Corporation Act. Section 8 reads as
under:
"8. Person qualified to vote.
Every person whose name is in a ward
roll, shall be deemed to be entitled to vote at
the ward election, and every person whose
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name is not in the said roll shall be deemed to
be not entitled to vote."
38) A perusal of this provision would indicate as to who
are the persons qualified to vote at the ward election. The
manner of voting is set out by section 8A and that states that
voting at an election shall be by ballot or by electronic voting
machine and no votes shall be received by proxy.
39) Section 9 sets out the qualification for election as
Councillor and by section 10 disqualification for being a
Councillor is set out.
40) Such provisions would indicate as to how the term
Councillor is understood and equally election. The manner of
voting at an election, the disqualifications, are provisions which
are commonly understood as capable of being attracted and
applicable to all Councillors.
41) By section 11 the Act sets out disabilities from
continuing as Councillor and by section 12 questions as to
disqualification to be determined by the Judge. By section 13,
liability of Councillors to removal from office is set out and all
three sections would indicate as to how they would apply to the
Councillors irrespective of the mode of their election.
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42) The State Election Commission is put in charge of all
elections to the Corporations and that power vesting in it is to be
exercised through the State Election Commissioner. By section
14A, there is a power in the State Election Commissioner to issue
directions to prevent impersonation and by section 15, the
manner of filling up casual vacancies is set out.
43) Section 16 is titled as "Election Petitions", which we
have already reproduced hereinabove.
44)
A detailed perusal of section 16 would indicate as to
how if qualification of any person declared to be elected a
Councillor is disputed or if the validity of any election is
questioned, whether by reason of the improper rejection by the
State Election Commissioner of a nomination or of the improper
reception or refusal of a vote or by reason of a material
irregularity in the election proceedings corrupt practice, or any
other thing affecting the result of the election, then, that can be a
subject matter of a election petition and the dispute or question
can be determined by the Judge.
45) Mr. Gorwadkar would read all the sections preceding
section 16 and equally section 16 in a manner suggesting a
determination of the qualifications of a Councillor declared to be
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elected or validty of any election as restricted to a direct election
process. He would submit that any person enrolled in the
Municipal election roll can alone submit an application to the
Judge for the determination of the dispute or question and a
nominated Councillor having been elected by an indirect process
the question of his qualification or the process of his appointment
is out of the purview of section 16 of the MMC Act.
46) With greatest respect, not only to the learned counsel
but to the Division Bench on whose view he relies upon, we do not
think that such a restricted or narrow interpretation would
uphold the object and purpose of the Act. It is not correct to
presume that the residents or voters at a direct election would
not be interested in questioning the qualification of any person
nominated to be a Councillor.
47) We have already noted that nominated Councillors
derive their designation as such because they are nominated on
account of their having special knowledge or experience in
Municipal administration. Now, Municipal administration is a
joint effort of the Councillors and the Municipal officers. If the
public at large is interested in the affairs of a Municipal
Corporation it is erroneous to assume that it would be so
interested only in disputing or questioning a direct election or
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popularly known as a Ward election. It would be interested and
rather is expected to be interested even when some persons are
nominated illegally. Eventually, it is the public who keeps a
watch on the performance of the affairs of a Municipal
Corporation and which comprises of Councillors, Municipal
Officers etc. They would not rest content only if the elections are
held in accordance with the Act and the Rules. If the
Maharashtra Municipal Corporations Act contains provisions so
as to question or dispute the qualifications of a Councillor even
post election and provides a remedy for the voter to make an
application for determination of the question arising out of such
issues, then, to hold that a nominated Councillor will be out of the
rigour or purview of such provisions would hardly subserve
public interest. Eventually, all such provisions and which ensure
purity and sanctity of the election process concluded, whether
directly or directly, are inserted so as to uphold larger public
interest and public good. It must be remembered that by Part IX-
A the Municipalities have been given a constitutional status.
Articles 243-P, 243-Q and 243-R all ensure that the Municipality
functions as an institution of self-Government (see Article
243P(e). In discussing and elaborating the status of Panchayats
and Municipalities in the Constitution and the model, scheme and
role thereof, two decisions of the Hon'ble Supreme Court are
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extremely relevant. In the case of Cantonment Board,
Secunderabad vs. G. Venketram Reddy and Ors. reported in AIR
1995 SC 1210, the Hon'ble Supreme Court has held as under:-
"3. ..... How the expression, 'Municipality' in the State'
should be understood? The word 'Municipality' has
been defined in Webster's New Dictionary as, 'a town,
city or borough which has local self government'. In
Black's Law Dictionary it is extended to 'legally
incorporated or duly authorised association of
inhabitants of limited area for local government or
other public purposes'. A body politic created by the
incorporation of the People of a prescribed locality
invested with the subordinate powers of legislation to
assist in the civil government of the State and to
regulate and administer local and internal affairs of the
community'. This word thus has a wide connection.
The constitution also understands it in broad sense.
Chapter (IX-A) deals with the Municipality. Clause (e)
of Article 243-P defines Municipality to mean, 'an
institution of self-government constituted under Article
243-Q. Article 243-Q reads as under:
"243-Q. Constitution of Municipalities:-
(1) There shall be constituted in every State ,-
(a) a Nagar Panchayat (by whatever name
called) for a transitional area, that is to say, an
area in transition from a rural area to an urban
area;
(b) a Municipal Council for a smaller urban area;
and
(c) a Municipal Corporation for a larger urban
area, in accordance with the provisions of this Part:
Provided........."
This definition indicates that a Corporation or a
Municipal Council or Nagar Panchayat is constituted on
strength of population and the area or place where it is
constituted namely rural or urban. But all the three
are deemed to be municipality. A Municipal
Corporation with a larger area is as much a
municipality as a council with smaller area. The
expression, 'Municipality in the State' thus has to be
read in broad and larger sense. ....."
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47(A) In the case of State of Uttar Pradesh and Others vs.
Pradhan Sangh Kshettra Samiti and Others reported in AIR
1995 SC 1512, the Hon'ble Supreme Court has held as under:-
"7. It is common knowledge that the needs of the people
change with the development in the economic, scientific
and technological fields as also with the developments
in transport and communication. With them, the concept
of self-sufficiency and the means, mode and range of
self-governance also change. What is more, the units of
self-governance at the lower level being interrelated and
integrated with those at the higher levels as parts of the
whole scheme of administration and development in the
State, have to respond to and fall in line with the growth
in the size and operation of the units at the higher
level to form a coordinated democratic polity and
administrative machinery. The concept of grassroot or
lowest level administration must, therefore, necessarily
change with the advance and progress at other
levels. The governing units at all levels have to fit in in a
pattern, and a scheme for administration both for law
and order and economic growth. They have to act as
vehicles of overall stability and progress. For that
purpose, their constitution and functioning have to be
in conformity with the larger social, political and
economic goals.
Hence there cannot be any immutable social,
political, economic or organisational concept of village
as a self governing unit. In a developing country
like ours, where the population is growing fast, where
the society is in ferment on all fronts, where
divisive forces of all kinds abound, where the vast
majority of population is illiterate and is the victim of
ignorance, superstition, blind-faith, biases and
prejudices, and is shackled by tradition, and irrational
customs and practices, there is an urgent need to
evolve means to unite and integrate the society, to
expose the populace to larger and higher goals,to imbibe
in them the wider perspectives and to forge a socially
cohesive front for breaking the barriers of race, caste,
class, religion and region rather than to pander to the
age-old, self-centered physicaland mental barriers.
.......... There is further nothing in the Mahathma
Gandhi's advocacy of "village panchayat raj" from which
the High Court has taken support to suggest that the
village that Mahatmaji had in mind was of a particular
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description or dimension. It is amusing in this respect
to note that the High Court in support of its concept
of village has even gone to the extent of observing that
"it must be remembered that in considering the
aspirations of the people, more so at the first level of
democracy, the phenomena of a case of identity of the
people, their sentiments, feelings and chauvinism,
cannot be forgotten" the considerations which were, with
respect, farthest from the mind of Mahathmaji and
against which he fought throughout his life. If separate
identities, chauvinism, divisible sentiments and feelings
arc nurtured from the grassroot level, they are bound
to erode the foundation of the unity and integrity of the
country and should be the last thing on the social and
political agenda of the country. On the other hand,
the need of the day is to create social, political and
economic entities crossing all barriers and wedded to
the nationhood as the ultimate goal. Anthropological
and sociological entities may be natural so far as
the blood and familial relationships and attachments
go and have their place in certain limited spheres. But
they have no place while shaping democratic
political and administrative units. Nor are they
necessarily conducive to social and economic progress.
On the other hand, they may prove and have in the past
proved a positive hindrance to them. ... ... ...
Sometimes, smaller the social, political and
administrative entities, the greater the dominance of
one section or the other and deeper the prejudices. The
need is to organise viable social, political, economic and
administrative units of optimum size at the lowest level
on a rational basis keeping in mind the size of
population, the needs of social and economic
development, availability of resources, the transport and
communication facilities, convenience of administration
and other relevant factors. ... ... ...
What is further forgotten is that over the years, not only
the population in the rural areas has grown enormously
but the complexion of the rural areas has also undergone
a change. With the increasing pressure on land, there
has been a steady migration from the rural to the urban
and semi-urban areas. Some villages are almost deserted
while others survive much below the poverty line. At the
same time, some have emerged as small packets of
comparative prosperity, thanks to marginal industrial
and commercial activities around them and the nearness
to the urban and semi-urban areas."
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48) In that regard Article 243-R is relevant and reads as
under :
"243-R. Composition of Municipalities. -
(1) Save as provided in clause (2), all the seats
in a Municipality shall be filled by persons
chosen by direct election from the territorial
constituencies in the Municipal area and for this
purpose each Municipal area shall be divided
into territorial constituencies to be known as
wards.
(2) The Legislature of a State may, by law,
provide--
(a) for the representation in a Municipality of--
(i) persons having special knowledge or
experience in Municipal administration;
(ii) the members of the House of the People and
the members of the Legislative Assembly of the
State representing constituencies which
comprise wholly or partly the Municipal area;
(iii) the members of the Council of States and the
members of the Legislative Council of the State
registered as electors within the Municipal area;
(iv) the Chairpersons of the Committees
constituted under clause (5) of article 243S:
Provided that the persons referred to in
paragraph (i) shall not have the right to vote in
the meetings of the Municipality;
(b) the manner of election of the Chairperson of
a Municipality."
49) A bare perusal of clause (2) of this Article would
indicate as to how the Legislature of a State is empowered by law
to provide for the representation in a Municipality of persons
having special knowledge or experience in Municipal
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administration. By Article 243-S and 243-T, the Constitution of
wards, committees and reservation of seats is provided for so as
to give a representative character to the Municipal
administration. That representation is expected to be broad-
based and involving all sections of the society. It is by
constitutional prescription vide Article 243-U and Article 243-V
that duration of Municipalities and disqualifications for
membership is provided. Such provisions disqualify a person for
being chosen as, and for being a member of a Municipality. Now,
Article 243-V is the source on which all the provisions referred by
us hereinabove are founded. Once a broad and wide term,
namely, "member of a Municipality" is used in clause (1) of
Article 243-V, then, we cannot whittle down or dilute the scope
and ambit of such constitutional provision. More so, in the light
of Article 243-W which reads as under :
"243-W. Powers, authority and
responsibilities of Municipalities, etc .-
Subject to the provisions of this Constitution,
the Legislature of a State may, by law, endow -
(a) the Municipalities with such powers and
authority as may be necessary to enable them to
function as institutions of self-government and
such law may contain provisions for the
devolution of powers and responsibilities upon
Municipalities, subject to such conditions as may
be specified therein, with respect to--
(i) the preparation of plans for economic
development and social justice;
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(ii) the performance of functions and the
implementation of schemes as may be entrusted
to them including those in relation to the
matters listed in the Twelfth Schedule;
(b the Committees with such powers and
authority as may be necessary to enable them to
carry out the responsibilities conferred upon
them including those in relation to the matters
listed in the Twelfth Schedule."
50) The further Articles in this Part, namely, Articles 243-
X, 243-Y, 243-Z and 243-ZA would indicate together with the
above reproduced Article as to how Municipal Corporations or
Municipalities as are popularly known perform various functions
and are endowed with powers, authorities and responsibilities.
The elections to such a body is a matter of State intervention.
That is because the State is obliged to set up an independent
Commission so as to supervise, conduct and hold the elections to
Municipalities. These elections have to be impartial and fair. The
Municipal affairs as such have to be transparent. The Committee
for District Planning, which is a body constituted by Article 243-
ZD and a Committee for Metropolitan Planning by Article 243-ZE
would indicate as to how the Constitution envisages a
Municipality to perform the duties and functions so also
responsibilities conferred upon it, including those in relation to
the matters listed in the XII Schedule.
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51) Since great emphasis has been laid before us on
Articles 243-ZF and 243-ZG, we reproduce them :
"243ZF. Continuance of existing laws and
Municipalities .--Notwithstanding anything in
this Part, any provision of any law relating to
Municipalities in force in a State immediately
before the commencement of the Constitution
(Seventy-fourth Amendment) Act, 1992, which
is inconsistent with the provisions of this Part,
shall continue to be in force until amended or
repealed by a competent Legislature or other
competent authority or until the expiration of
one year from such commencement, whichever
is earlier:
Provided that all the Municipalities existing
immediately before such commencement shall
continue till the expiration of their duration,
unless sooner dissolved by a resolution passed to
that effect by the Legislative Assembly of that
State or, in the case of a State having a
Legislative Council, by each House of the
Legislature of that State.
243ZG. Bar to interference by courts in
electoral matters. --Notwithstanding anything
in this Constitution,--
(a) the validity of any law relating to the
delimitation of constituencies or the allotment of
seats to such constituencies, made or purporting
to be made under article 243ZA shall not be
called in question in any court;
(b) no election to any Municipality shall be called
in question except by an election petition
presented to such authority and in such manner
as is provided for by or under any law made by
the Legislature of a State."
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52) Mr. Gorwadkar submits that the words "election"
"voter" and the word "Election petition" have all to be construed
to cover only such process which is completed in a direct manner.
According to him, if the Councillors sit and consider the
recommendations of the Commissioner for nomination of certain
recommended candidates as nominated Municipal Councillors,
then, that process is not an election, but an appointment. This
argument presupposes that this is an internal mechanism or
process in which public at large is not interested. This argument
also presupposes that even in the broadest and widest sense, the
term or word "election" cannot be held to be taking in its fold the
process of nomination. We are unable to accept these arguments
for more than one reason.
53) For the consideration of these arguments, it would be
vital to reproduce some Rules relating to nomination. Before
that, the Rules as such require a closer look and we would scan
them briefly.
54) These Rules have been notified by the Notification
issued by the Urban Development department, dated 28th
February, 2012 and styled as Maharashtra Municipal
Corporation (Qualification and Appointment of Councillors)
Rules, 2012. Rule 1 is short title and Rule 2 contains definitions.
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The words 'Corporation' and 'Commissioner' carry the same
meaning as is understood by the Act, namely, "Corporation"
means a Municipal Corporation constituted under the relevant
Act and "Commissioner" means the Commissioner of the relevant
Municipal Corporation. The definition of the term "Relevant Act"
is to be found in Rule 2(c). Rules 3, 4 and 5 are material for our
purpose and read as under:-
"(3) Meeting for nomination of Councillors:- Subject to
the provisions of rule 4, the corporation shall, in the
first meeting of the Corporation after the selection of the
Mayor and Deputy Mayor, after general elections,
nominate five persons to be nominated Councillors.
(4) Qualification for nomination:- A person shall be
eligible for being nominated as a candidate for the office
of the nominated Councillors if he has special knowledge
or experience in municipal administration and he,-
(a) has been a recognized and registered medical
practitioner in the State for a minimum period of five
years, or
(b) has been an educationist including retired
Professor, Lecturer, Principal, Head-master, etc. of a
recognized school or college for a minimum period of
five years; or
(c) has been Chartered Accountant or Cost Accountant
for a minimum period of five years, or;
(d) possesses a degree in engineering from a
recognized University and has professional experience
for a minimum period of five years, or
(e) has been an Advocate for a minimum period of five
years or is a person possession degree in Law from a
recognized University with an experience in the legal
field in the State for a minimum period of five years, or
(f) has experience of working for not less than five
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years as the Chief Officer of a Municipal Council or as
Assistant Commissioner of the Deputy Commissioner or
has experience of not less than two years as the
Commissioner of a Municipal Corporation, and has
retired from service, or
(g) has experience of not less than five years as an
office bearer of a Non-Government Organization
registered under the Bombay Public Trusts Act, 1950,
engaged in Social Welfare activities, working within the
area of a Municipal Corporation or a Council.
5. Nomination of Councillors:- (1) For the purpose of
nomination of Councillors, the Commissioner shall, after
consulting the 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
recommend the names of suitable persons to the
Corporation for being nominated as a nominated
Councillor. The names of such persons recommended
shall not exceed the number of Councillors to be
nominated in accordance with rule 3.
(2) The Corporation shall, after considering the
recommendation by the Commissioner, nominate the
Councillors.
Provided that , if the Corporation decides not to
accept the recommendation of the Commissioner with
respect to a person so recommended, it shall record the
reasons therefor.
Provided further, that every endeavour shall be
made to ensure that one Councillor each possessing any
of the qualifications referred to in clause (a) to (g) of
rule 4 has been nominated."
55) A perusal of these Rules would indicate as to how
subject to the provisions of Rule 4, the Corporation shall, in the
first meeting of the Corporation after the election of the Mayor
and Deputy Mayor, after general elections, nominate five persons
to be nominated Councillors. A person shall be eligible for being
nominated as a candidate for the office of the nominated
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Councillors, if he has special knowledge or experience in
municipal administration and he is a professional or an
educationist or possessing a degree in engineering from a
recognized university and has professional experience for a
minimum period of five years or has been an Advocate for
minimum period of five years or is a law graduate from the
recognized university and has experience in the legal field in the
State for a minimum period of five years or has worked as Chief
Officer of a Municipal Council or as Assistant Commissioner or
Deputy Commissioner or Commissioner of a Municipal
Corporation or has some experience as a office bearer of a non-
Government organization.
56) Thus, anybody cannot claim to be nominated but he
has to possess the qualifications for it. The eligibility criteria is
that the candidate must be possessing special knowledge or
experience in municipal administration and either is a
professional, namely, Doctor, Chartered Accountant or Cost
Accountant or an Advocate or possesses experience and standing
in terms of clauses (a) to (g) of Rule 4.
57) The process of nomination is set out in Rule 5 and
first, it is the Commissioner who comes into play. He must
consult the leader of the house, leader of the opposition and
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leader of each recognized or registered party or group in the
Corporation and after taking into account the relevant strength of
such parties and groups, recommend the names of suitable
persons to the Corporation for being nominated as a nominated
Councillor. The names of such recommended candidates shall not
exceed number of Councillors to be nominated in accordance with
Rule 3. Ultimately, it is the Corporation which considers the
recommendation of the Commissioner and nominates the
Councillors. The proviso to sub-Rule (2) of Rule 5 requires the
Corporation to record reasons if it decides not to accept the
recommendation of the Commissioner with respect to a person
recommended by him. The second proviso requires an endeavor
being made to ensure that one Councillor each possessing any of
the qualifications referred to in clauses (a) to (g) of Rule 4 has
been nominated. It is the Corporation's decision to accept or not
to accept the recommendation of the Commissioner. To say that
when the Corporation takes a decision, it is only choosing or
appointing some of the persons recommended or all of them and
therefore this is not an election would not be proper.
58) The Corporation in undertaking the above exercise
has to consider the recommendation and decide in terms of Rule
5(2) of the Rules. That is the decision of the Corporation. Since
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the Corporation comprises of elected Councillors and its meetings
are presided over by the Mayor, it is the house or the general
body before which the recommendations of the Commissioner are
placed. These are discussed by the general body and the decision
then is taken either unanimously or by majority. The above is
apparent from Rule 3 because it says that subject to the
provisions of Rule 4, the Corporation shall, in its meeting,
nominate five persons to be nominated Councillors. That
eventually is nothing but an election. It may not be comparable to
a general election or a Ward election at which the members of the
public and who are qualified voters and entitled to cast their
votes. Nonetheless, it is an election and of a person for being
nominated as a nominated Councillor. From amongst the names
recommended by the Commissioner, it is the Corporation, which
is making a selection or choice. The recommendations ordinarily
have to be accepted, but they can be rejected as well and in terms
of the first proviso to sub-Rule (2) of Rule 5, reasons have to be
assigned for the same. However, if the recommendations were to
be placed before the State Government or the appointment is to
be made by any other authority than the Corporation, one can
understand the submission of Mr. Gorwadkar. However, once the
recommendations of the Commissioner are placed before the
Corporation and the Corporation nominates the Councillors, then,
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a narrow or restricted meaning cannot be given to the term or
word "election" appearing in section 16.
59) We are, in this reference, concerned with only the
meaning to be assigned to the term "Election Petition" and
whether it can be presented to challenge the nomination of
Councillors. If the section provides the remedy to question the
election, then, to make a distinction as is sought between
"election" and "nomination" would run counter to the object and
purpose of the Act. The Act envisages a Municipal Corporation
comprising of both, the elected and the nominated Councillors. If
that is how the Corporation is understood as a body or a legal
entity, then, to hold that only such of the Councillors as are
elected at a general election would have to face a challenge to
their elections but the nominated Councillors are out of the
purview of section 16 would mean plural remedies created for
challenging an identical process.
60) The word "election" is not defined in the Act and the
Rules. The words such as these would therefore have to be given
their ordinary and plain meaning. The words "election" and
"nomination" have been understood as "to choose, to pick out, to
select from a number or to make a choice of". It also means to
caste vote for the purpose of selecting members of any legislative,
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municipal or other authority of whatever character. Thus, it
would have to be construed in the context and the circumstances
in which the process is required to be undertaken. It is well
settled rule of interpretation that a word not defined in a statute
its meaning has to be gathered from the context in which it has
been used [see AIR 1995 SC 1620 (Regnl. Executive Kerala F.
W. F. Board vs. M/s. Fancy Food, para 8 at page 1623)]
61) It is in this sense that this word is employed and
reliance therefore is rightly placed on the judgment of Hon'ble
Supreme Court of India in the case of Dinesh Prasad Yadav vs.
State of Bihar and Others reported in 1995 (Supp) 1 SCC 340 .
In the context of a similar challenge but with a marginal
difference, in that, the State Government had a right to nominate
on the managing committee not more than two persons, one of
whom shall be a Government servant, the Hon'ble Supreme Court
considered the argument that the term of office of this managing
committee would have to be counted from the beginning of the co-
operative year, in which election by ballot is held or it is to be
counted from when the nominations are made by the State
Government. The Hon'ble Supreme Court, in paras 7, 8 and 9 of
this decision, held as under:-
"7. The provision of the Act and the Rules,
quoted above, clearly indicate that the scheme of the
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Act gives wide powers to the State Government to
control those societies in which it has considerably
contributed towards the share capital. The State
Government can nominate even up to two-third of the
total members of the Managing Committee including
the Chairman. It would, therefore, be in tune with the
scheme of the Act to hold that the Managing
Committee cannot assume office till the time the
nominations are made by the State Government.
Proviso to Rule 22(2) of the Rules rightly provides
that the Managing Committee shall not be treated as
complete unless the members thereof have been duly
elected and/or nominated by the authority
empowered to do so under the Act, Rules and Bye-
laws of the society.
8. The expression 'election' has not been defined
under the Act. In the absence of any definition by the
legislature we have to follow the ordinary meaning
given to the said expression. Collins English
Dictionary defines 'election' as under :
"The selection by vote of a person or persons from
among candidates for a position, esp. a political office.
The act or an instance of choosing."
Webster's Comprehensive Dictionary, International
Edn., gives the following meaning to the expression
'election'.
"The selection of a person or persons for office as by
ballot. A choice, as between alternatives, choice in
general."
9. The expression 'election', therefore, means
selection of a person by vote or even otherwise. When
a person is nominated by way of selection on the basis
of a given criteria from amongst several persons, then
in the broader sense he is elected to the office. We are
of the view that the expression 'elections', in the first
proviso to Section 14(1) of the Act, has been used in
the broader sense. It includes election by ballot as
well as the choice by nomination. This interpretation
would make Rule 22(2) of the Rules workable.
Section 14(2) of the Act vests the management of a
registered society in a Managing Committee
constituted in accordance with the Rules. Section
14(4) further provides that even up to two-third
members of the Managing Committee can be
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nominated. Sub-section (8) of Section 14 further
imposes bar on the members of the Managing
Committee for re-election after they have held two
consecutive terms. Rule 22(2) read with Section
14(2) of the Act makes it abundantly clear that
constitution the Managing Committee is to be treated
complete only when the elections by ballot as well as
the nominations are finalised. Even otherwise, to
fulfill the avowed object of the Act and to encourage
and promote the cooperative movement in the State,
it is necessary that the Managing Committee as
constituted under Rule 22(2) of the Rules should be
given its full tenure of three cooperative years.
Having provided for three years' term in office to the
Managing Committee of a society, it could not be the
intention of the legislature to leave it to the State
Government to reduce the same to as short a period
as three weeks, which would be a mockery. We,
therefore, hold that in the first proviso to Section
14(1) the expression "the cooperative year in which
elections are held" means not only the elections by
way of ballot, but also the nominations under the Act.
The net result in that the term of the Managing
Committee under the Act and the Rule is to
commence from the beginning of the cooperative year
in which the nominations by the State Government
are completed and the Managing Committee is
constituted in terms of Rule 22(2) of the Rules."
62) It is therefore clear that when the scheme of the Act
and Rules is understood as denoting that the Corporation shall
consist of Councillors elected directly at Ward election and
nominated by it, then, it would not be proper to divide the
exercise and then hold whether it is "election" or "nomination".
As urged by the learned Senior Counsel Mr. Gorwadkar, an
election means voting as set out in section 8A of the MMC Act.
That manner of voting would decide whether it is a election else
the process cannot be termed as such would be really missing the
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point. The act of electing can be held to be performed after the
vote is caste. It may be by ballot meaning inserting a paper
marking one's choice in the box or by pressing the button against
a name in the electronic machine.
63) The word "nomination" also is assigned the same
meaning, namely, "to select the candidate to be voted for a public
office or a member of legislative or representative assembly, to
name or to recommend for confirmation". One nominates a
person in order to propose him or appoint him to an office and
that could be as understood in the Law Lexioan by appointment
or it could be to propose a person for election or appointment.
64) Once we understand that it is the Corporation as a
whole which considers the recommendations of the Commissioner
and then takes a decision on nominations of the candidates, then,
the process can be equated with an election. Albeit the mode may
be by voting in the manner understood above.
65) That such a decision of the Corporation is also capable
of being challenged by an Election Petition is therefore evident.
One cannot construe section 16(1) in the backdrop of the locus of
a person challenging the elections. Advisedly, the words
employed in section 16 are that if the qualification of any person
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declared to be elected a Councillor is disputed or if the validity of
the election is questioned for the reasons indicated in sub-section
(1), then, any person enrolled in the municipal election roll can
submit an application to the Judge for determination of dispute or
question. Thus, the dispute is about the qualification of any
person declared to be elected as a Councillor, whereas the
question is with regard to the validity of any election. On both
counts, the application can be presented by the person enrolled in
the municipal election roll.
ig Equally, by sub-section (2), a
discretion is given to the State Election Commissioner to make an
application within the meaning of that sub-section. The locus of
the person entitled to make the application is not decisive or
conclusive and that cannot control the interpretation and
construction of sub-section (1). If the Election Petition can be
presented by any person enrolled in the municipal election roll,
then, the elected Councillors fulfill that criteria. To be elected as
Councillors, they have to fill a nomination form. That can be filled
in only by those whose name appear in the municipal election roll.
Sub-section (1) of section 9 sets out this condition. Even a voter
or a person whose name appears in the municipal election roll as
such can submit that application to the Judge. Such a person
may not be an elected Councillor. Equally, a elected Councillor
can also submit above referred application. Both can be equally
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interested in raising the dispute or in questioning the validity of
election. If a person who has not been nominated despite being
recommended by the Commissioner desires to question the
validity of the nomination process or the qualification of any
person nominated, he can also submit the application within the
meaning of sub-section (1) of section 16 of the MMC Act, provided
his name is enrolled in the municipal election roll. The argument
that a person qualified for nomination or eligible for being
nominated need not be one whose name is reflected in the
municipal roll and therefore, he may as well question the process
and therefore, an addition is being made in sub-section (1) of
section 16, particularly on the issue of locus to submit an
application, is without any merit. This person may be falling in
the category of a candidate at an election, but if he is not enrolled
in the municipal election roll, he will not be able to submit that
application. That does not mean that the locus or the eligibility to
submit the application would govern the construction or
interpretation of the provision. It is one thing to say that the
locus of a person to maintain or bring an action would not be a
decisive or conclusive factor in determining the availability of or
right to avail of a remedy and quite another to grant locus or right
to avail of that remedy when it is expressly not in the statute.
The latter one would not be a permissible exercise. The former is
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only a issue of construction of the statutory provision conferring
a right to avail of a remedy and hence permissible. It is aimed at
giving meaning to the words and expressions already existing in
the statute.
66) There is a distinct departure in the language of sub-
section (1) of section 21 of the Municipal Councils Act and the
above provision. This gives us an opportunity to refer to the
Municipal Councils Act. This Act seeks to unify, consolidate and
amend the law relating to Municipal Councils and to provide for
constitution of Nagar Panchayats and Industrial Townships in the
State of Maharashtra.
67) Since it was expedient to provide for unified pattern
for the constitution, administration and powers of municipalities
in the State of Maharashtra and to make better provision therefor
that this Act has been enacted. In Chapter I, there are
preliminary provisions and by section 2(6) in the definitions, the
word "Council" is defined to mean a municipal council constituted
or deemed to have been constituted for a smaller urban area
specified in a notification issued in this respect under clause (2)
of article 243-Q of the Constitution of India or under sub-section
(2) of section 3 of this Act. The word "Councillor" is defined in
section 2(7) to mean a person duly elected as member of the
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Council, and includes the nominated Councillor, who shall not
have the right to vote at any meeting of the Council and
Committees of the Council and to get elected as a President of the
Council or a Chairperson of any of the Committees of the Council.
The word "election" is defined in section 2(12) to mean an
election to a Council, and includes any by-election. The word
"Industrial Township" is defined in section 2(18A) and the word
"Nagar Panchayat" is defined in section 2(25A). The word
"prescribed" is defined in section 2(35) to mean prescribed by
rules. The words "President" and "Vice President" are defined in
section 2(36) and the word "State Election Commission" is
defined in section 2(47B).
68) Chapter II is titled as "Municipal Councils". Sub-
heading (1) thereof is titled as "Municipal areas and their
classification". Sections 3 to 6 deal with this aspect and sub-
heading (2) is titled as "Municipal Authorities and Establishment
of Councils. By section 7, the municipal authorities are specified
and section 8 deals with establishment and incorporation of
Councils. Section 9 deals with composition of Councils and reads
as under:-
"9. (1) Every Council shall consist of--
(a) Councillors elected at ward elections, by
direct elections; and
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(b) such number of Councillors, not exceeding
ten per cent. of the total number of elected Councillors
or five, whichever is less, having special knowledge or
experience in municipal administration, to be
nominated by the Collector in such manner as may be
prescribed.
(1A) In every Council seats shall be reserved for
the Scheduled Castes, the Scheduled Tribes, Backward
Class of Citizens and women as provided in sub-
section (2).
(2) The Director shall, from time to time by an
order published in the Official Gazette, fix for each
municipal area--
(a) the number of elected Councillors in accordance
with the following table :--
ig TABLE
--------------------------------------------------------------------
------
Class of Municipal Area Number of Elected
Councillors
--------------------------------------------------------------------
(i) 'A' Class . . The minimum number of elected
Councillors shall be 38, and for
every 8,000 of the population
above 1,00,000, there shall be
one additional elected
Councillor, so, however, that the
total number of elected
Councillors shall not exceed 65;
(ii) 'B' Class . . The minimum number of elected
Councillors shall be 23, and for
every 5,000 of the population
above 40,000 there shall be one
additional elected Councillor, so,
however, that the total number
of elected Councillors shall not
exceed 37;
(iii) 'C' Class . . The minimum number of elected
Councillors shall be 17, and for
every 3,000 of the population
above 25,000 there shall be one
additional elected Councillor, so,
however, that the total number
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of elected Councillors shall not
exceed 23;]
(b) the number of seats to be reserved for women
in the case of municipal area of each class of councils
on the basis of [one-half] (including the number of
seats reserved for women belonging to the Scheduled
Castes, the Scheduled Tribes and the Backward Class
of Citizens of the total number of seats to be filled in
by direct election for the purpose of any general
election held after the commencement of the
Maharashtra Municipal Corporations and Municipal
Councils (Amendment) Act, 1993.
(c) the number of seats, if any, to be reserved for
the Scheduled Castes or the Scheduled Tribes so that
such number shall bear, as nearly as may be, the same
proportion to the number of elected Councillors as the
population of the Scheduled Castesor the Scheduled
Tribes, in the municipal area bears to the total
population of that area.
[A fraction of such proportion if less than one-half
shall be ignored and if one-half or more shall be
reckoned as one in determining the number of seats :]
Provided that, while making such reservation [one-
half] of the total number of seats so reserved shall be
reserved for women belonging to the Scheduled Castes
or, as the case may be, the Scheduled Tribes; and
where only one seat is reserved for the Scheduled
Castes or, as the case may be, for the Scheduled
Tribes, then no seat shall be reserved for women
belonging to the Scheduled Castes or, as the case may
be, the Scheduled Tribes.
(d) the number of seats to be reserved for the
[Backward Class of Citizens] in the case of municipal
area of each Class of Council [shall be twenty seven
per cent.] of the total number of seats to be filled in by
direct election for the purpose of any general election
held after the commencement of the Maharashtra
Municipal Corporations and Municipal Councils
(Amendment) Act, 1993 :
Provided that, while making such reservation [one-
half] of the total number of seats so reserved shall be
reserved for women belonging to the Backward Class
of Citizens.
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(3) The reservation of seats for Scheduled Castes
and Scheduled Tribes made by an order under sub-
section (2) shall cease to have effect when the
reservation of seats for those Castes and Tribes in the
Legislative Assembly of the State ceases to have effect
under the Constitution of India :
Provided that, nothing in this sub-section shall
render any person elected to any such reserved seat
ineligible to continue as a Councillor during the term
of office for which he was duly elected by reason only
of the fact that the reservation of seats has so ceased
to have effect.
(4) Every order under sub-section (2) shall take
effect for the purposes of the next general election of
the Council immediately following after the date of the
order."
69) A bare perusal of the above provisions and
particularly section 9 reveals that the Councillors elected at Ward
election by direct election and such Councillors, not exceeding
10% of the total number of elected Councillors or 5, whichever is
less, are to be nominated by the Collector. They must possess
special knowledge or experience in municipal administration.
70) The third sub-heading is titled as "Election and
publication of names of elected and nominated Councillors". That
commences from section 10, which provides for division of
municipal area into wards and reservation of wards for Women,
Scheduled Castes and Scheduled Tribes. Section 10A is titled as
"State Election commissioner" and states by sub-section (1) that
superintendence, direction and control of the preparation of
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electoral rolls for, and the conduct of, all elections to the
Municipal Councils shall be vested in the State Election
Commissioner. By section 10AA, the State Election
Commissioner is powered to issue directions to prevent
impersonation. Preparation of list of voters is dealt with by
section 11 and section 12 reads as under:-
"12. (1) Every person whose name is in the list of
voters maintained under section 11 shall be qualified to
vote, and every person whose name is not in such list
shall not be qualified to vote, at the election of a
Councillor for the ward to which such list pertains.
(2) The list of voters maintained under section 11 shall
be conclusive evidence for the purpose of determining
under this section whether a person is qualified or is not
qualified to vote, as the case may be, at any election."
71) A bare perusal thereof would reveal that it deals with
right to vote and by further provisions, namely, 13 and 14, the
manner and restriction of voting is provided for. By section 15,
qualifications for becoming Councillors are set out and by section
16, disqualifications for becoming Councillors are set out. Section
17 gives power to the State Government to make Rules, generally
to provide for or to regulate matters in respect of elections to be
held under the Municipal Councils Act, but this power has to be
exercised in consultation with the State Election Commissioner.
By sub-section (2) of section 17, the matters in regard to which
the Rules may be made are set out and the consequences of
failure to elect are set out in section 18. The declaration of results
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of election is dealt with by section 19 and by section 20, the State
Election Commission is obliged to publish the names of nominated
Councillors.
72) Then comes section 21, which appears under the
further sub-heading, namely, "Disputes in respect of election or
nomination of Councillors". Section 21 reveals as to how the
election or nomination of a Councillor may be called in question
by a petition presented to the District Court by a candidate at the
election or by any person entitled to vote at the election.
73) Corrupt practices and other electoral offences are
dealt with in further sub-heading (5) and in which appear
sections 22 to 34.
74) Power of requisitioning for election purposes are
narrated in sub-heading (6), in which appear sections 35 to 39
and by the section, which appears in sub-heading (7), duration of
Council and term of office of the Councillors is set out. Section 41
deals with the later and by section 41A, the election to constitute
Council has to be held and liability of Councillors to removal from
office is dealt with by section 42 and by section 43, resignation
not to affect subsequent disqualification of a Councillor is dealt
with. Disqualification of councilor during his term of office is
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covered by section 44 and there are special provisions regarding
disqualification for failure to pay taxes due to the Council. That is
covered by sections 45 and 46 and section 47 deals with vacation
of all the offices held by a Councillor on his ceasing to be such.
The casual vacancies are to be filled in terms of section 48.
Further Chapter enumerates the duties of the Council, which
could be obligatory and discretionary, special provisions for
undertaking water supply scheme, President and Vice President,
Committees etc.
75) The above are to be found in Chapter III and by
Chapter IV, Director of Municipal Administration and Collector is
appointed vide section 74. Chapter V contains provisions
regarding officers and servants. Chapter VI deals with conduct of
business and by section 81 falling under sub-title 'Meetings",
provisions regarding meetings of Council are enumerated.
76) We have referred to these provisions in some detail
simply because it was argued that in the scheme of the Municipal
Councils Act, the remedy of Election Petition can be availed of in
case of both, an elected Councillor or nominated Councillor.
Further, this Petition can call in question the election and can be
presented by a candidate at the election or by any person entitled
to vote at the election. Mr. Gorwadkar underlines this difference
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and submits that such words and phrases are absent in section 16
of the MMC Act. Though such words are there, the Division
Bench of this Court in Sharanbasappa's case (supra), according to
Mr.Gorwadkar, held that the remedy of election Petition cannot
be availed of by a person not entitled to vote at the
election/nomination of the nominated Councillors. The Petitioner,
in that case was not an elected Councillor. He had not filed a
nomination and therefore, this remedy is unavailable to him.
Though the Petitioner, in that case was a listed voter residing
within the limits of Municipal Council and entitled to vote for
general Ward election electing the Councillors, but the elected
Councillors are entitled to nominate/appoint nominated
Councillor. Therefore, such a person or individual cannot avail of
the remedy of Election Petition under section 21 of the Municipal
Councils Act. Paras 12 to 16 of this judgment read as under:-
"12 Now, we turn to the objection raised by the sixth
respondent to the locus of the petitioner. In paragraph 1
of the petition, the petitioner has stated that he is a
resident of the town Maindargi and he is a registered
voter in the said Municipal Council. This factual
statement has not been disputed by the sixth respondent
in his reply. Section 21 of the said Act of 1965 provides
for a remedy of a filing a dispute in respect of election or
nomination of the Councillor. Subsection (1) of section 21
of the said Act reads thus:
"21(1) No election or nomination of a
Councillor may be called in question, except by
petition presented to the District Court, by a
candidate at the election or by any person
entitled to vote at the election, within ten days
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from the date of publication of the names of the
Councillors in the Official Gazette under
Sections 19 or 20, as the case may be"
13 Nominated Councillor is to be elected/nominated by
the Municipal Council which consists of elected
Councillors in the General Body Elections. The petitioner
was not entitled to vote at the election/nomination of the
nominated Councillors, as the petitioner is admittedly not
an elected Councillor. He had not filed nomination. Thus,
the remedy under section 21 is not available to the
petitioner to challenge the nomination of the nominated
Councillor.
14 Even bar created by clause (b) of Article 243 (2G) of
the Constitution of India will not apply as the petitioner
has not challenged the election but the petitioner has
challenged the nomination of the sixth respondent. If the
petitioner had challenged an election of an elected
Councillor in the General Ward Elections, the said
constitutional bar would have certainly applied.
15 A contention has been raised by the sixth
respondent that remedy under sub-section (2) of section
42 is available to the petitioner and in fact, the petitioner
by addressing letters dated 9th August 2013 and 15th
August 2013 has invoked the said remedy. Sub-section
(2) of section 42 confers power on the State Government
to remove any Councillor from office if such Councillor
has in the opinion of the State Government become
incapable of performing his duties as a Councillor. In the
facts of the present case, obviously the State Government
cannot exercise powers under sub-section (2) of section
42 of the said Act.
16 The petitioner is admittedly residing within the
limits of the said Municipal Council and he is a registered
voter within the limits of the said Municipal Council. The
petitioner is entitled to vote at General Ward Election for
electing the Councillors. The elected Councillors are
entitled to nominate/appoint nominated Councillor. The
petitioner as a voter and as a citizen residing within the
limits of concerned Municipal Council has a right to
ensure that only the qualified and eligible persons are
appointed as the nominated Councillors. Therefore, the
petitioner has certainly a locus to challenge the
nomination of the sixth respondent by filing present Writ
Petition under Article 226 of the Constitution of India. We
cannot ignore that by accepting nomination of the sixth
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respondent who was ineligible, the provision of sub-
section (1) of section 9 of the said Act of 1965 is set at
nought. The object is to have a benefit of presence of a
person who has a special knowledge or experience in
municipal administration having one of the qualifications
provided in Rule 9. Thus, the basic object of nominating a
Councillor is completely frustrated in the case of the sixth
respondent."
77) It is evident that the Division Bench, in
Sharanbasappa'(supra) was dealing with a case under the
Municipal Councils Act, whereas Ashok Bodha's case was under
the MMC Act. With greatest respect to the Division Bench
deciding Sharanbasappa's case (supra), we are unable to agree
with the reasoning which is reproduced above. With great
difficulty we could lay hands on the Maharashtra Municipal
Councils and Nagar Panchayats (Qualifications and Procedure for
Appointment of Nominated Councilors) Rules, 2010. These Rules
read as under:-
"1. Short title - These rules may be called the
Maharashtra Municipal Councils and Nagar Panchayats
(Qualifications and procedure for appointment of
nominated Councillors) Rules, 2010.
2. Definitions. - (1) In these rules, unless the
context otherwise requires:-
(a) "Act" means the Maharashtra Municipal
Councils, Nagar Panchayats and Industrial Townships
Act, 1965 (Mah XL of 1965);
(b) "Council" means a Municipal Council,
constituted under the Act and includes a Nagar
Panchayat.
(2) Words and expressions used but not defined herein
shall have their respective meanings as assigned to them
in the Act.
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3. Determination of number of nominated
Councillors. - Subject to the provisions of Rule 4, the
Collector shall nominate such number of Councillors, not
exceeding ten per cent of the total number of elected
councillors or five, whichever is less, at the first meeting
of the Council after the election of the President and Vice-
president:
Provided that, while determining the number of
nominated Councillors, a fraction of less than one-half
shall be ignored and a fraction of one-half or more shall
be reckoned as one.
4. Qualification for nomination. - A person shall
be eligible for being nominated as a candidate for the
office of the nominated Councillors if he has special
knowledge or experience in municipal administration
and he, -
(a) has been a recognized and registered medical
practitioner in the State for a minimum period of five
years, or
(b) has been an educationist including retired
Professor, Lecturer, Principal, Head-master, etc. of a
recognised school or college for a minimum period of five
years, or
(c) has been a Chartered Accountant or Cost
Accountant for a minimum period of five years, or
(d) possesses a degree in engineering from a
recognized University and has professional experience
for a minimum period of five years, or
(e) has been an Advocate for a minimum period
of five years or is a person possessing degree in Law from
a recognized University with an experience in the legal
field in the State for a minimum period of five years, or
(f) has experience of working for not less than
five years as the Chief Officer of a Municipal Council or as
Assistant Commissioner or the Deputy Commissioner or
experience of not less than two years as the
Commissioner of a Municipal Corporation, and has
retired from service, or
(g) has experience of not less than five years as
an office bearer of a Non-Government Organization
registered under the Bombay Public Trusts Act, 1950
engaged in Social Welfare activities, working within the
area of a Municipal Corporation or a Council.
5. Nomination of Councillors. - In nominating the
councillors, the Collector shall take into account the
relative strength of recognized parties or registered
parties or groups, and nominate the members, as nearly
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as may be, in proportion to the strength of such parties
or groups in the Council, after consulting leader of each
of such parties or groups:
Provided that, nothing containing in this rule shall
be construed as preventing the Collector from
nominating any member not belonging to any such party
or group:
Provided further that, every endeavour shall be
made to ensure that one Councillor each possessing any
of the qualifications referred to in clauses (a) to (g) of
Rule 4 has been nominated.
6. Publication of names of nominated
Councillors. - The Collector shall, as soon as may be,
send the names of the Councillors so nominated, for
publication in the Maharashtra Government Gazette.
7. Casual vacancies. - When a seat of a nominated
Councillor becomes vacant, the provisions of these rules
shall mutatis mutandis, apply to filling the vacancy.
8. Certificate to Nominated Councillors. - After
publication of the names of the nominated Councillors in
the Maharashtra Government Gazette, the Collector shall
issue a Certificate in Form, appended herewith, to eachof
the nominated members."
78) Though it is the power of the Collector to nominate,
but he has to be guided by the Rules. The Rules lay down the
qualifications for nomination and by taking into account the
relative strength of recognized parties or registered parties or
groups and in nominating the members, the Collector, as nearly
as may be, nominates them in proportion to the strength of such
parties or groups to the Council and after consulting leader of
each of such parties or groups.
79) First proviso to Rule 5 states that nothing contained
in this Rule shall be construed as preventing the Collector from
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nominating any member not belonging to any such party or group
and, by the second proviso to this Rule, the Collector has to make
every endeavour to ensure that one Councillor each possessing
any of the qualifications referred to in clauses (a) to (g) of Rule 4
has been nominated.
80) We find that the attention of the Division Bench
deciding Sharanbasappa's case (supra), with respect, was not
invited to the judgment of the Hon'ble Supreme Court of India
construing the words "election" and "nomination" and the paras
reproduced above. With further respect, its attention was not
invited to the Rules and the scheme of the Act. The attention of
the Division Bench was not invited to the constitutional
provisions which we have extensively referred above. Had the
attention being invited of these aspects, the Division Bench
deciding Sharanbasappa's case (supra) may not have arrived at
the above conclusions.
81) With the greatest respect to the Bench, we are unable
to agree with the distinction made while interpreting sub-section
(1) of section 21 of the Municipal Councils Act. Its attention also
was not invited to Ashok Bodha's case (supra) though in that case
the different statutory scheme was analysed, but identical issue
and controversy was raised. The crucial words "by a candidate at
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the election or by any person entitled to vote at the election"
would denote as to how the remedy can be availed of by a person
seeking to nominate himself as a nominated Councillor and
equally by a voter who is entitled to vote at the election. That
such a voter being entitled to vote at the Ward elections or direct
elections and eligible to contest for the election of the post of
Councillor by this method and manner is equally entitled for
nomination as a nominated Councillor, provided he qualifies by
possessing special knowledge
ig or experience in municipal
administration and fulfills the requirements specified in clauses
(a) to (g) of Rule 4 of the above Rules of 2010. Therefore, it would
not be proper to hold that if he is aggrieved by the election or
nomination of any Councillor, he cannot present an Election
Petition to the District Court. He being entitled to vote at the
election and if that requirement is fulfilled, he is entitled to
present the Election Petition. Therefore, it will not be possible to
agree with the consideration and interpretation of sub-section (1)
of section 21 of the Municipal Councils Act. Once this view is
taken, it is not required to construe the ambit and scope of section
42 of the Municipal Councils Act.
82) Our view finds support in the various provisions of the
Municipal Councils Act, which we have reproduced above. If the
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Council itself comprises of those elected and at what is termed as
a direct election and those nominated, then, merely because the
nomination is by the Collector, would not mean such persons who
are nominated would necessarily be termed as non elected
Councillors. The distinction between elected and non elected
Councillors is made by construing the provision related to
composition of Councils narrowly. By sub-section (1) of section 9,
it is provided that the Council shall consist of Councillors elected
at Ward election, by direct elections and the nominated
Councillors. The nomination by the Collector has to be made in
such manner as may be prescribed. The word "prescribed" means
prescribed by rules. That would mean the Collector, taking into
account, the views of all the recognized parties or registered
parties or groups in the Council, shall nominate members as
nearly as may be in proportion to the strength of such parties or
groups in the Council and after consulting the leader of such
parties or groups. Though this is not an absolute rule and the
Collector can nominate any member not belonging to any such
party or groups, nonetheless, the person has to fulfill the
qualification for nominations. The words "having special
knowledge or experience in municipal administration" would
denote as to how persons vitally connected with, conversant so
also possessing special knowledge or experience in municipal
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administration have to be nominated. This provision is enacted to
subserve larger public interest. The Council ought to be broad
based and fully representative character. Its composition must
reflect not only those whom people choose as their
representatives at direct elections held qua each Ward, but also
those who are nominated on account of their special knowledge or
experience in municipal administration. In a way, they also
represent the people residing in the limits of the Municipal
Council. They have to voice the grievances of the residents and
cutting across party or group affiliations. They may not be
connected with such groups or such parties, but having been
chosen only because of their professional expertise, their special
knowledge and experience, then, that nomination and the process
for the same can be equated with an election. With respect, sub
section (1) of section 21 of the Municipal Councils Act has not
been construed by the Division Bench to mean that nomination of
a Councillor cannot be questioned at all by a Petition presented to
the District Court. The issue was about the locus of the Petitioner
in that case and whether a voter in the Ward election can
question the nomination by filing an Election Petition. Having
held that the remedy under section 21(1) can be availed of by
such a person, namely, the voter at the Ward election, then, we
cannot agree with the above observations and conclusions of the
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Division Bench. They would have to be overruled. In a way, both
cases Ashok Bodha and Sharanbasappa (supra) were considering
the question of locus of parties in those Petitions/proceedings to
question the nominations of Councillors. Once we find that the
remedy of Election Petition can be availed by a voter and entitled
to vote at the general or direct election, then, to the extent
indicated above, we would prefer to agree with and accept the
view taken in the case of Ashok Bodha (supra). Pertinently, the
narrow view in Sharanbasappa (supra) and those supporting it
overlooks the fact that the MMC Act in section 16(2) permits
even the State Election Commissioner, to approach the Judge, if
he has reason to believe that an election has not been a free
election by reason of the large number of cases in which undue
influence or bribery has been exercised or committed. The
restricted meaning assigned to the term "election" would then not
enable the State Election Commissioner to move or authorise
moving of a Petition even if the process of nomination is tainted
and vitiated as above.
83) Once the above view is taken, then, all that remains is
to refer to the judgments cited by Mr. Gorwadkar. He cited the
judgment in the case of Uttar Pradesh Power Corporation Limited
vs. Ayodhya Prasad Mishra and Anr. reported in (2008) 10
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SCC 139 only for the principle laid down therein that equals
cannot be treated unequally likewise unequals cannot be treated
equally. The basic argument being that the nominated Councillor
cannot be equated with Councillor elected at the Ward election or
the direct election. Once we do not accept that distinction and for
the purposes of the remedy to challenge the nomination, then,
this judgment to the extent it lays down this principle can have
no application. Ultimately, the principle laid down in this decision
would apply depending upon the facts in each case.
84) The argument of absence of certain words in section
16(1) of the MMC Act and presence of certain words in section
21(1) of the Municipal Councils Act need not detain us simply
because we have found that in a broad and wide manner, both
processes can be termed as elections. It may not be the intent of
the legislature to leave out one process from the purview of the
Act and to enable aggrieved parties to challenge that process
either by resorting to general law or by filing Writ Petition under
Article 226 of the Constitution of India. If that intent was clear
and explicit, the legislature would have spoken so. The
legislature has not ruled out the inclusion of the process of
nomination and therefore, employed broad words in both sections
of both enactments. This would denote as to how the municipal
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administration has to be smooth, efficient and effective and
anything which comes in the way or presents a hurdle in the
management of affairs of the Corporation and the Council in
above manner, should not be read into these enactments.
Ultimately, they have a constitutional status. The composition
and constitution is guided by Part IXA, and both categories of
Councillors being subject to more or less identical
disqualifications and disabilities, are capable of being removed by
democratic process or by intervention of the State Government,
then, all the more the above distinction and made by Mr.
Gorwadkar and others has no basis.
85) The last controversy remains about the availability of
Writ Jurisdiction.
86) In that regard, Articles 226 and 243ZG of the
Constitution of India need to be carefully perused. They are
reproduced herein below:-
"226. Power of High Courts to issue certain
writs. - (1) Notwithstanding anything in article 32,
every High Court shall have powers, throughout the
territories in relation to which it exercises jurisdiction,
to issue to any person or authority, including in
appropriate cases, any Government, within those
territories directions, orders or writs, including writs in
the nature of habeas corpus, mandamus, prohibition,
quo warranto and certiorari, or any of them, for the
enforcement of any of the rights conferred by Part III
and for any other purpose.
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(2) The power conferred by clause (1) to issue
directions, orders or writs to any Government,
authority or person may also be exercised by any High
Court exercising jurisdiction in relation to the
territories within which the cause of action, wholly or in
part, arises for the exercise of such power,
notwithstanding that the seat of such Government or
authority or the residence of such person is not within
those territories.
(3) Where any party against whom an interim
order, whether by way of injunction or stay or in any
other manner, is made, on or in any proceedings
relating to, a petition under clause (1), without -
(a) furnishing to such party copies of such
petition and all documents in support of the plea for
such interim order; and
(b) giving such party an opportunity of being
heard,
makes an application to the High Court for the vacation
of such order and furnishes a copy of such application to
the party in whose favour such order has been made or
the counsel of such party, the High Court shall dispose
of the application within a period of two weeks from the
date on which it is received or from the date on which
the copy of such application is so furnished, whichever
is later, or where the High Court is closed on the last
day of that period, before the expiry of the next day
afterwards on which the High Court is open; and if the
application is not so disposed of, the interim order shall,
on the expiry of that period, or, as the case may be, the
expiry of the said next day, stand vacated.
(4) The power conferred on a High Court by this
article shall not be in derogation of the power conferred
on the Supreme Court by clause (2) of article 32.
243ZG. Bar to interference by Courts in
electoral matters. - Notwithstanding anything in this
Constitution, -
(a) the validity of any law relating to the
delimitation of constituencies or the allotment of seats
to such constituencies, made or purporting to be made
under article 243-ZA shall not be called in question in
any Court.
(b) no election to any Municipality shall be called
in question except by an election petition presented to
such authority and in such manner as is provided by or
under any law made by the Legislature of a State."
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87) Article 226 of the Constitution of India enacts the
powers of High Court to issue certain Writs and those can be
issued to any person or authority including in appropriate case
any Government for the enforcement of any of the rights
conferred by part III of the Constitution of India and for any other
purpose. It is well settled that the right to elect, right to be
elected and the right to dispute an election has to be determined
by the scheme of the constitutional and statutory provisions in
relation to these rights. They would indicate as to how this is
neither a fundamental right nor common law right. It is a pure
and simple statutory right. Paras 7 and 8 of the decision in the
case of Jyoti Basu and Ors. vs. Debi Ghosal and Ors. reported in
AIR (1982) SC 983 read as under:-
"7. The nature of the right to elect, the right to be
elected and the right to dispute an election and the
scheme of the constitutional and statutory provision in
relation to these rights have been explained by the Court
in N. P. Ponnuswami v. Returning Officer, Namakkal
Constituency, 1952 SCR 218 : (AIR 1952 SC 64) and
Jagan Nath v. Jaswant Singh, AIR 1954 SC 210. We
proceed to state what we have gleaned from what has
been said, so much as necessary for this case.
8. A right to elect, fundamental though it is to
democracy, is, anomalously enough, neither a
fundamental right nor a Common Law Right. It is pure
and simple, a statutory right. So is the right to be
elected. So is the right to dispute an election. Outside of
statute, there is no right to elect, no right to be elected
and no right to dispute an election. Statutory creations
they are, and therefore, subject to statutory limitation.
An election petition is not an action at Common Law, nor
in equity. It is a statutory proceeding to which neither
the common law nor the principles of equity apply but
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only those rules which the statute makes and applies. It
is a special jurisdiction, and a special jurisdiction has
always to be exercised in accordance with the statute
creating it. Concepts familiar to Common Law and Equity
must remain strangers to Election Law unless statutorily
embodied. A Court has no right to resort to them on
considerations of alleged policy because policy in such
matters, as those, relating to the trial of election
disputes, is what the statute lays down. In the trial of
election disputes, Court is put in a straight jacket. Thus
the entire election process commencing from the
issuance of the notification calling upon a constituency to
elect a member or members right up to the final
resolution of the dispute, if any, concerning the election
is regulated by the Representation of the People Act,
1951, different stages of the process being dealt with by
different provisions of the Act. There can be no election
to Parliament or the State Legislature except as provided
by the Representation of the People Act, 1951 and again,
no such election may be questioned except in the manner
provided by the Representation of the People Act. So the
Representation of the People Act has been held to be a
complete and self-contained code within which must be
found any right claimed in relation an election or an
election dispute. We are concerned with an election
dispute. The question is who are parties to an election
dispute and who may be impleaded as parties to an
election petition. We have already referred to the
Scheme of the Act. We have noticed the necessity to rid
ourselves of notions based on Common Law or Equity.
We see that we must seek an answer to the question
within the four corners of the statute. What does the Act
say?"
88) Therefore, it is not that in all cases and as a matter of
course the power to issue the Writs under Article 226 of the
Constitution of India would be exerecised. After the bar enacted
under Article 243ZG as well, the exercise of this power depends
upon several factors and which need not be enumerated. The
reasons for refusing to exercise the power to issue prerogative
Writs are also well settled. Once the constitutional Articles
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referred above are understood in such perspective, then, it would
be evident that there is a bar to interference by Courts in
electoral matters. That is notwithstanding anything in the
constitution and if the matter is covered by clause (a) of Article
243 ZG and clause (b), then, this aspect becomes clear and
apparent.
89) In the written submissions of the State, this bar is
highlighted, but by supporting the arguments of Mr. Gorwadkar.
We are unable to understand this line of argument, for, despite
the presence of Article 243ZG, as held in Ashok Bodha's case
(supra), this Court will not exercise its jurisdiction under Article
226 of the Constitution of India when equally efficacious remedy
is provided by the statute. The presence of Article 243ZG is
referred in Ashok Bodha's case (supra) by the Division Bench in
the context of a bar to interference by Courts exercising
constitutional powers in electoral matters. However, with
greatest respect again, there cannot be any absolute principle.
The matter will have to be considered in the facts and
circumstances of each case. We need not say anything on this
aspect, as in all fairness, the counsel appearing for parties have
urged that if a Writ Petition is filed and to question the process of
nomination either by the Municipal Corporation or by the
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Collector qua Municipal Council, then, depending upon the facts
and circumstances therein and if the dispute and question raised
touch the election or raises issues which can be dealt with
adequately and efficaciously by the remedies under the statute,
then, the Court may refuse to interfere.
90) We only invite the attention of the learned Counsel
appearing for all parties to the judgments rendered by the Hon'ble
Supreme Court of India from time to time. In the case of Gurdeep
Singh Dhillon vs. Satpal and Ors. reported in (2006) 10 SCC
616 the Hon'ble Supreme Court of India applied Article 243ZG
and held as under:-
"ORDER
1. At the request of the learned counsel appearing for
the petitioner, the names of Respondents 18 to 20 (both
inclusive) are hereby deleted from the array of parties.
2. Leave granted.
3. We have heard the learned counsel appearing for
the parties.
4. The only issue involved in this appeal is whether
the High Court could have entertained a writ petition
filed under Articles 226/227 of the Constitution of India
to interfere with an election to a Municipal Council.
The answer unhesitatingly is in the negative in view of
the specific bar under Article 243-ZG(b) of the
Constitution of India which provides as follows:
"243-ZG. Bar to interference by courts in electoral
matters. - notwithstanding anything in this
Constitution, -
(a) * * *
(b) no election to any municipality shall be
called in question except by an election petition
presented to such authority and in such manner as
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is provided for by or under any law made by the
legislature of s State."
5. There is no dispute that the writ petition was
moved only to challenge the election of the appellant to
Municipal Council, Ferozepur City. Instead of
challenging the said election by an election petition
under section 74 of the Punjab State Election
Commission Act, 1994 Respondents 1 to 13 took a
short cut by filing a writ petition and invoking the
constitutional jurisdiction of the High Court under
Articles 226/227 of the Constitution. This petition
ought not to have been entertained in view of the
specific bar under Article 243-ZG(b) of the Constitution
of India. The only remedy available to challenge the
election was by raising an election dispute under the
local statute.
6. In this view of the matter, we allow this appeal and
set aside the impugned judgment of the High Court.
The parties are left to resolve their election dispute in
the manner permitted by the Constitution of India and
the law.
7. The appeal is allowed accordingly. No order as to
costs."
91) However, in this decision, it made no reference to a
prior judgment rendered by it in the case of Manda Jaganath vs.
K. S. Rathnam and Ors. reported in (2004) 7 SCC 492 . The
discussion in this judgment is important and we reproduce
certain paragraphs as under:-
"12. In our opinion, whether the Returning Officer is
justified in rejecting this Form B submitted by the first
respondent herein or not, is not a matter for the High
Court to decide in the exercise of its writ jurisdiction.
This issue should be agitated by an aggrieved party in an
election petition only.
13. It is to be seen that under Article 329(b) of the
Constitution of India there is a specific prohibition
against any challenge to an election either to the Houses
of Parliament or to the Houses of Legislature of the State
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except by an election petition presented to such
authority and in such manner as may be provided for in
a law made by the appropriate legislature. The
parliament has by enacting the Representation of People
Act, 1951 provided for such a forum for questioning such
elections hence, under Article 329(b) no forum other
than such forum constituted under the R.P.Act can
entertain a complaint against any election.
14. The word 'election' has been judicially defined by
various authorities of this Court to mean any and every
act taken by the competent authority after the
publication of the election notification.
15. In Ponnuswami (supra) this Court held:
"The law of elections in India does not contemplate
that there should be two attacks on matters
connected with election proceedings, one while
they are going on by invoking the extraordinary
jurisdiction of the High Court under Art. 226 of the
Constitution (the ordinary jurisdiction of the
Courts having been expressly excluded)" and
another after they have been completed by means
of an election petition."
16. The above view of this Court in Ponnuswami's case
has been quoted with approval by the subsequent
judgment in M.S. Gill (supra) wherein this Court after
quoting the passages from said judgment in
Ponnuswami's case held that there is a non-obstante
clause in Article 329 and, therefore, Article 226 stands
pushed out where the dispute takes the form of calling in
question an election, except in special situations pointed
out but left unexplored in Ponnuswami's case. It is while
considering the above unexplored situations in
Ponnuswami (supra) in M.S. Gill's case (supra) this Court
held thus : (SCC p. 429, para 34)
"34. This dilemma does not arise in the wider view
we take of Section 100(1)(d)(iv) of the Act. Sri
Rao's attack on the order impugned is in substance
based on alleged non-compliance with a provision
of the Constitution viz., Article 324 but is neatly
covered by the widely-worded, residual catch-all
clause of Section 100. Knowing the supreme
significance of speedy elections in our system the
framers of the Constitution have, by implication
postponed all election disputes to election petitions
and tribunals. In harmony with this scheme
Section 100 of the Act has been designedly drafted
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to embrace all conceivable infirmities which may be
urged. To make the project fool-proof Section
100(1)(d)(iv) has been added to absolve
everything left over. The Court has in earlier
rulings pointed out that Section 100 is exhaustive
of all grievances regarding an election."
17. In the very same paragraph this Court, however,
demarcated an area which is available for interference
by the High Court and the same is explained as follows:
"But what is banned is not anything whatsoever
done or directed by the Commissioner but
everything he does or directs in furtherance of
the election, not contrarywise. For example, after
the President notifies the nation on the holding of
elections under Section 15 and the Commissioner
publishes the calendar for the poll under Section
30, if the latter orders returning officers to
accept only one nomination or only those which
come from one party as distinguished from other
parties or independents, is that order immune
from immediate attack. We think not. Because
the Commissioner is preventing an election, not
promoting it and the Court's review of that order
will facilitate the flow, not stop the stream.
Election, wide or narrow be its connotation,
means choice from a possible plurality,
monolithic politics not being our genius or reality,
and if that concept is crippled by the
Commissioner's act, he holds no election at all."
18. Of course, what is stated by this Court herein above
is not exhaustive of a Returning Officer's possible
erroneous actions which are amenable to correction in
the writ jurisdiction of the courts. But the fact remains
such errors should have the effect of interfering in the
free flow of the scheduled election or hinder the progress
of the election which is the paramount consideration. If
by an erroneous order conduct of the election is not
hindered then the courts under Article 226 of the
Constitution should not interfere with the orders of the
Returning Officers remedy for which lies in an election
petition only.
19. In Election Commission of India v. Shivaji (supra)
this Court while considering a challenge to the election
notification which included certain Zila Parishads within
a notified constituency, held following the judgment in
Ponnuswami (supra) that even if there was any ground
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relating to the non-compliance with the provisions of the
Act and the Constitution on which the validity of any
election process could be questioned, the person
interested in questioning the election has to wait till the
election is over and institute a petition in accordance
with Section 81 of the Act calling in question the election
of the successful candidate.
20. Learned counsel for the writ petitioner before the
High Court had relied upon a judgment of this Court in
S.T. Muthusami v. K. Natarajan & Ors. (1988 1 SCC 572)
wherein this Court had held following the judgment in
Ponnuswami's case (supra) that entertaining of a writ
petition by the High Court under Article 226 of the
Constitution cannot be supported and consequently it set
aside the judgment of the Division Bench of the High
Court and dismissed the writ petition filed in the High
Court. In that case the question involved was a dispute
between two candidates claiming the official symbol of a
political party. This judgment came to be distinguished
by the High Court on the basis of facts though the law laid
down there was squarely applicable against the
maintainability of the writ petition.
21. Learned senior counsel for the respondent
candidate contended that case of the first respondent
before the High Court came within the exceptions noted
by this Court in M.S. Gill's case (supra) which permits
filing of a writ petition under Article 226 of the
Constitution in certain exceptional cases. He contended
that the facts in this case also show that but for the
intervention of the High Court the progress in the
election would have been stalled. With due respect to
learned counsel we do not agree with this argument
because by not allotting a symbol claimed by the first
respondent the Returning Officer has not stalled or
stopped the progress of the election. Said respondent has
been treated as an independent candidate and he is
permitted to contest with a symbol assigned to him as an
independent candidate, and consequently there is no
question of stalling the election. His grievance as to such
non- allotment of the symbol will have to be agitated in
an election petition (if need be) as held in
S.T.Muthuswami (supra).
22. Learned counsel then contended that non-allotment
of a symbol which the first respondent was legally
entitled to would not be a ground of challenge available to
him in the election petition under section 100 of the
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Representation of the People Act, 1951 therefore the
High Court is justified in entertaining the petition. We do
not think this argument of learned counsel is correct
because as has been held by this Court in M.S. Gill's case
(supra) sub-clause 4 of section 100(1)(d) of the
Representation of the People Act, 1951 is widely worded
residual clause which this Court in the said judgment of
M.S. Gill case termed as "catch all clause". It is further
stated in the said judgment that the said section has been
added to absolve everything left over and the same is
exhaustive of all grievances regarding an election, hence,
in our opinion this argument of learned counsel for the
first respondent should also fail."
92) Thus, for correcting errors which have the effect of
interfering in the free flow of election and hinder the process of
election which is the paramount consideration then jurisdiction
under Article 226 of the Constitution of India would be exercised
depending upon the facts and circumstances in every case.
Eventually, the democratic process must be allowed to run its
course.
93) In the case of K. Venkatachalam vs. A. Swamickan
and Anr. reported in AIR 1999 SC 1723 despite the power
enacted by similar Article, namely Article 329(b), the Hon'ble
Supreme Court of India sustained the interference under Article
226 of the Constitution of India by the Madras High Court by the
following reasoning:-
"20. In all these cases there is a common message that
when the poll or re-poll process is on for election to the
Parliament or Legislative Assembly, High Court cannot
exercise its jurisdiction under Article 226 of the
Constitution and that remedy of the aggrieved parties
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is under the Act read with Article 329(b) of the
Constitution. The Act provides for challenge to an
election by filing the election petition under Section 81
on one or more grounds specified in sub-section(l) of
Sections 100 and 101 of the Act. There cannot be any
dispute that there could be a challenge to the election of
the appellant by filing an election petition on the
ground improper acceptance of his nomination
inasmuch as the appellant was not an elector on the
electoral roll of Lalgudi Assembly Constituency and for
that matter also by any non-compliance, with the
provisions of the Constitution or of the Act. If an
election petition had been filed under Section 81 of the
Act High Court would have certainly declared the
election of the appellant void. It was, therefore,
submitted that respondent could not invoke the
jurisdiction of the High Court under Article 226 of the
Constitution in view of Article 329(b) of the
Constitution read with Sections 81 and 100 of the Act
and only an election petition was maintainable to
challenge the election of the appellant. That right the
respondent certainly had to challenge the election of
the appellant. Election petition under Section 81 of the
Act had to be filed within forty-five days from the date
of election of the returned candidate, that is the
appellant in the present case. This was not done.There
is no provision under the Act that an election petition
could be filed beyond the period of limitation prescribed
under Section 81 of the Act. That being so the question
arises if the respondent is without any remedy
particularly when it is established that the appellant
did not have the qualification to be elected to the Tamil
Nadu Legislative Assembly from Lalgudi Assembly
Constituency.
21. Mr. Balakrishnamurthy, learned counsel for the
first respondent submitted that in such circumstances
where the appellant lacked basic and fundamental
qualification to be elected as required by the
Constitution, it could not be said that a petition under
Article 226 of the Constitution was not maintainable.
Here jurisdiction under Article 226 is sought to be
exercised after declaration of the election of the
appellant. He referred to Article 193 of the Constitution
which provides for penalty for sitting and voting when
a person is not qualified to be a member of the
Legislative Assembly.
22. In support of his submission reference was made
to a decision of this Court in Election Commission, India
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v. Saka Venkata Rao, AIR (1953) SC 210. In this case
the respondent was convicted and sentenced to a term
of seven years rigorous Imprisonment in the year
1942. He was released on the occasion of celebration of
the Independence Day on August 15, 1947. In June,
1952 there was to be a by-election to a reserved seat in
the Kakinada constituency in Madras Legislative
Assembly and the respondent, desiring to offer himself
as a candidate but finding himself disqualified under
the Act, as five years had not elapsed from his release,
applied to the Election Commission on April 2, 1952 for
exemption so as to enable him to contest the election.
The respondent did not receive any reply till May 5,
1952, the last date of filing nominations. He filed his
nomination on that day. No exception was taken to it
either by the Returning Officer or any other candidate.
Election was held on June 14, 1952 and the respondent
was declared elected on June 16, 1952 and the result of
the election was duly published in the Gazette on June
19, 1952. Respondent, thereafter took his seat as
member of the Assembly on June 27,1952. Meanwhile
the Election Commission rejected the respondents
application for exemption and communicated such
rejection to the respondent by its letter dated May 13,
1952, which it is alleged was not received by him. The
Speaker of the Legislative Assembly on July 3, 1952
brought the aforesaid communication of the Election
Commission to the notice of the respondent. As a
question arose as to the respondent's disqualification
the Speaker referred the matter to the Governor of
Madras, who in turn forwarded the case to the Election
Commission for its opinion as required under Article
192 of the Constitution. In the writ petition filed by the
respondent in the High Court under Article 226 of the
Constitution one of the submissions made by the
Election Commission was that Article 192 was, on its
true construction, applicable to cases of disqualification
which arose both before and after the election and that
the reference of the question as to respondent's
disqualification to the Governor of Madras and the
latter's reference of the same to the Election
Commission for its opinion were competent and valid.
This Court referred to articles 190(3), 191, 192 and
193 of the Constitution and observed as under :- (at p.
215 of AIR)
"Article 191, which lays down the same set of
disqualifications for election as well as for
continuing as a member, and Article 193 which
prescribes the penalty for sitting and voting
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when disqualified, are naturally phrased in
terms wide enough to cover both pre-existing
and supervening disqualifications; but it does not
necessarily follow that Articles 190(3) and
192(1) must also be taken to cover both. Their
meaning must depend on the language used,
which, we think, is reasonably plain. In our
opinion these two articles go together and
provide a remedy when a member incurs a
disqualification after he is elected as a member.
Not only do the words "becomes subject" in
Article 190(3) and "has become subject" in
Article 192(1) indicates change in the position of
the member after he was elected, but the
provision that his seat is to become thereupon
vacant, that is to say, the seat which the member
was filling, therefore, becomes vacant on his
becoming disqualified, further reinforces the
view that the article contemplates only a sitting
member incurring the disability while so sitting.
The suggestion that the language used in Article
190(3) can equally be applied to a pre-existing
disqualification as a member can be supposed to
vacate his seat the moment he is elected is a
strained and farfetched construction and cannot
be accepted. The Attorney General admitted that
if the word "is" were substituted for "becomes" or
"has become", it would more appropriately
convey the meaning contended for by him, but
he was unable to say why it was not used."
Finally, this Court said that Articles 190(3) and 192(1)
are applicable only to disqualifications to which a
member becomes subject after he is elected as such,
and that neither the Governor nor the Election
Commission has jurisdiction to inquire into the
respondent's disqualification which arose long before
his election.
.....
25. In the present case the appellant was not an
elector in the electoral roll of Lalgudi Assembly
Constituency. He, therefore, could not be elected as a
member from that constituency. How could a person
who is not an elector, from that constituency could
represent the constituency? He lacked the basic
qualification under Clause (c) of Article 173 of the
Constitution read with Section 5 of the Act which
mandated that a person to be elected from an Assembly
constituency has to be elector of that constituency. The
appellant in the present case is certainly disqualified
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for being a member of the Legislative Assembly of Tamil
Nadu. His election, however, was not challenged by
filing an election petition under Section 81 of the Act.
Appellant knows he is disqualified. Yet he sits and votes
as a member of the Legislative Assembly. He is liable to
penalty of five hundred rupees in respect of each day on
which he so sits or votes and that penalty is
recoverable as debt due to the State. There has not been
any adjudication under the Act and there is no other
provision of the Constitution as to how penalty so
incurred by the appellant has to be recovered as a debt
due to the State. Appellant is liable to penalty
nevertheless as he knows he is not qualified for
membership of the Legislative Assembly and yet he
acts contrary to law.
26. The question that arises for consideration is if in
such circumstances High Court cannot exercise its
jurisdiction under Article 226 of the constitution
declaring that the appellant is not qualified to be
member of the Tamil Nadu Legislative Assembly from
Lalgudi Assembly Constituency. On the finding
recorded by the High Court it is clear that the appellant
in his nomination form impersonated a person known
as `Venkatachalam s/o Pethu', taking advantage of the
fact that such person bears his first name. Appellant
would be even criminally liable as he filed his
nomination on affidavit impersonating himself. If in
such circumstances he is allowed to continue to sit and
vote in the Assembly his action would be fraud to the
constitution.
27. In view of the judgment of this Court in the case of
Election Commission of India v. Saka Varikata Rao, AIR
(1953) SC 210 it may be that action under Article 192
could not be taken as the disqualification which the
appellant incurred was prior to his election. Various
decisions of this Court, which have been referred to by
the appellant that jurisdiction of the High Court under
Article 226 is barred challenging the election of a
returned candidate and which we have noted above, do
not appear to apply to the case of the appellant now
before us. Article 226 of the Constitution is couched in
widest possible term and unless there is clear bar to
jurisdiction of the High Court its powers under Article
226 of the Constitution can be exercised when there is
any act which is against any provision of law or
violative of constitutional provisions and when
recourse cannot be had to the provisions of the Act for
the appropriate relief. In circumstances like the
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present one bar of Article 329(b) will not come into
play when case falls under Articles 191 and 193 and
whole of the election process is over. Consider the case
where the person elected is not a citizen of India. Would
the Court allow a foreign citizen to sit and vote in the
Legislative Assembly and not exercise jurisdiction
under Article 226 of the Constitution?
28. We are, therefore, of the view that the High Court
rightly exercised its jurisdiction in entertaining the
writ petition under Article 226 of the Constitution and
declared that the appellant was not entitled to sit in
tamil Nadu Legislative Assembly with consequent
restraint order on him from functioning as a member of
the Legislative Assembly. The net effect is that the
appellant ceases to be a member of the Tamil Nadu
Legislative Assembly. Period of the Legislative
Assembly is long since over. Otherwise we would have
directed respondent No. 2, who is Secretary to Tamil
Nadu Legislative Assembly, to intimate to Election
Commission that Lalgudi Assembly constituency seat
has fallen vacant and for the Election Commission to
take necessary steps to hold fresh election from that
Assembly Constituency. Normally in a case like this
Election Commission should invariably be made a
party."
93) The reasoning in this case and which the Hon'ble
Supreme Court termed as exceptional one was explained in the
case of Kurapati Maria Das vs. Dr. Ambedkar Seva Samajan and
Ors. reported in (2009) 7 SCC 387 as under:-
"27. We are afraid, we are not in position to agree with
the contention that the case of K. Venkatachalam v. A
Swamickan & Anr. [(1999) 4 SCC 526] is applicable to
the present situation. Here the appellant had very
specifically asserted in his counter affidavit that he did
not belong to the Christian religion and that he further
asserted that he was a person belonging to the
Scheduled Caste. Therefore, the Caste status of the
appellant was a disputed question of fact depending
upon the evidence. Such was not the case in K.
Venkatachalam v. A Swamickan & Anr. Every case is an
authority for what is actually decided in that. We do not
find any general proposition that even where there is a
specific remedy of filing an Election Petition and even
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when there is a disputed question of fact regarding the
caste of a person who has been elected from the
reserved constituency still remedy of writ petition
under Article 226 would be available.
.....
32. Counsel for the appellant rightly urged that the
question of caste and the election are so inextricably
connected that they cannot be separated. Therefore,
when the writ petitioners challenged the continuation of
the appellant on the ground of his not belonging to a
particular caste what they in fact challenged is the
validity of the election of the appellant, though
apparently the petition is for the writ of quo warranto.
33. There is yet another distinguishing feature in case
of K. Venkatachalam v. A Swamickan & Anr. In that
case there is a clear finding that the elected person
therein played a fraud with the Constitution inasmuch
as that he knew that his name was not in Electoral Roll
of that constituency and he impersonated for some
other person taking the advantage of the similarity of
names. The appellant herein asserts on the basis of his
Caste Certificate that he still belongs to Scheduled
Caste. We are, therefore, of the clear opinion that the
case of K. Venkatachalam v. A Swamickan & Anr.
[1999 (4) SCC 526] is not applicable to the present case
and the High Court erred in relying upon that decision.
34. Once it is held that the aforementioned case was of
no help to the respondents, the only other necessary
inference which emerges is that the bar under Article
243 ZG would spring in action."
94) Hence, beyond inviting the attention of the parties to
this aspect and the interpretation of the constitutional provisions,
we say nothing more.
95) In the view that we have taken, it is not necessary to
refer to other judgments relied upon by Mr. Kumbhakoni. Those
are on the principle as to how definitions can be construed
depending upon the context and if the context otherwise requires,
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they may be construed not going by the definition of that word or
term or expression in the definition section of an Act.
96) In the light of the above discussion, we answer the
question referred in the following words:-
(i) The remedy of election dispute under section 16 of the
MMC Act or section 21 of the Municipal Councils Act is
available to a voter entitled to vote in general Ward
election to dispute or question the nomination of
nominated Councillor.
(ii) We clarify that the availability of this remedy to a
candidate at the said election would depend upon the
language of the two provisions and the difference therein
as outlined by us in the forgoing paragraphs of this
judgment in detail.
97) Having answered the question referred as above all
individual matters shall go back to the respective Benches for
decision on other questions and issues in accordance with law.
98) We record our appreciation for the efforts taken by all
Counsels in order to enable us in arriving at the above answer.
Their assistance was indeed valuable.
(S.C.DHARMADHIKARI, J.)
(K.R.SHRIRAM, J.)
(B.P.COLABAWALLA, J.)
J.V.Salunke,PA
