Bombay High Court
Sanjay S/O Madhukarrao ... vs The Divisional Commissioner, ... on 31 August, 2017
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3110 OF 2017
PETITIONER: Sanjay s/o Madhukarrao
Mahakalkar, Aged about 35 years,
Occu: Business, R/o Mahakalkar
Bhavan, 97, Ridge Road, Raghuji
Nagar, Nagpur.
---VERSUS---
RESPONDENTS: 1. The Divisional Commissioner,
Nagpur Division, Civil Lines, Nagpur.
2. Corporation of the City of Nagpur,
Through Municipal Commissioner,
Civil Lines, Nagpur.
3. Tanaji s/o Suklal Wanwe,
Aged about 55 years, Occu:
Business, R/o Darshan Colony, Opp.
K.D.K. College, Nandanvan, Nagpur,
Dist. Nagpur.
4. Mayor,
Corporation of City of Nagpur,
Civil Lines, Nagpur.
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5. Maharashtra Pradesh Congress
Committee of India National
Congress, through its authorized
Representative Shri Abhijit Wanjari.
6 Indian National Congress (Nagpur
City), through its President,
Shri Vikas Thakare.
7 Harshal Manoj Sable,
Aged about 40 years, R/o Near
Hanuman Mandir, Shaniwari, Cotton
Market, Nagpur.
8 Dinesh Basantlal Yadav,
Aged about 36 Years, R/o Plot No. 4,
Ramai Nagar, Nari Road, Nagpur.
9 Neha Rakesh Nikose, Aged about
29 years, R/o 418, Kalpana Nagar,
Nari Road, Nagpur.
10 Parasram Kashinath Manvatkar,
Aged about 60 years, R/o Pili Nadi,
Kamptee Road, Pahune Layout,
Nari, Nagpur.
11 Sandeep Prahlad Sahare, Aged
about 49 years, R/o Samat Maidan,
Lashkaribagh, Nagpur.
12 Asha Nehru Uikey, Aged about 53
years, r/o Near Faizan Kirana Store,
Takia Diwanshah, Nagpur.
13 Sayyada Begum Mohammad
Nijamuddin Ansari, Aged about 47
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years, R/o 1206/M Dwar Nizan
Leader Dhobi Nagar, Nagpur.
14 Jishan Mumtaz Mohammad Irfan
Ansari, Aged about 30 years, R/o
Near Ansar Library, Ansar Nagar,
Mominpura, Nagpur.
15 Zulfekar Sheikh Ahmad Sheikh
(Bhutto), Aged about 50 years, R/o
871, Naalsahab Road, Pannal
Chawl, Timki, Nagpur.
16 Gargi Prashant Chopra, Aged about
47 Years, R/o 13, Sai Kurpa, Vijay
Nagar, Chhaoni, Nagpur.
17 Kamlesh Dilip Choudhari, Aged
about 33 years, R/o House No.
6200688, Mess Pump House, Near
Futala Lake, Nagpur.
18 Rushikesh Narayan Shelke, Aged
about 34 Years, R/o Baba Shelke,
Dasra Road, Mahal, Nagpur.
19 Purushottam Nagorao Hazare, Aged
about 39 years, R/o Vinoba Bhave
Nagar, Pardi, Nagpur.
20 Manojkumar Dhonduji Gawande,
Aged about 46 years, R/o Plot No.
30, Om Kirana Stores, Bhagwan
Nagar, Nagpur.
21 Pranita Chandraprakash Shahane,
Aged about 35 years, R/o
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Shivangaon, Nagpur.
22 Shri Prafulla s/o Vinodrao
Gudhadhe, Aged about 42 years,
R/o Jaitala, Nagpur.
Shri S.K. Mishra, Senior Advocate with Mr. Pushkar Ghare, Advocate
for the petitioner.
Smt. A.R. Kulkarni, A.G.P. for respondent No. 1,
Shri J.B. Kasat, Advocate for Respondent Nos. 2 and 4.
Shri S.P. Dharmadhikari, Senior Advocate with Mr. Khedkar, Advocate
for Respondent Nos. 5 & 6.
Shri Sunil V. Manohar, Senior Advocate with Shri A.A. Naik, Advocate
for Respondent No. 3.
Shri A.S. Jaiswal, Senior Advocate with Mr. M.S. Sharma, Advocate
for Respondent Nos. 7 to 22.
CORAM : B.P. DHARMADHIKARI & ROHIT B. DEO, JJ.
DATE OF RESERVING FOR JUDGMENT : JULY 27, 2017.
DATE OF PRONOUNCEMENT OF JUDGMENT : AUGUST 31, 2017
JUDGMENT (PER B.P. DHARMADHIKARI, J.).
1] Rule. Rule made returnable forthwith. Heard the learned
Counsel for the parties finally by consent.
2] By this petition under Articles 226 & 227 of the Constitution
of India, the petitioner, an elected Councillor or Corporator from
Prabhag 30/C of Nagpur Municipal Corporation on 23.2.2017
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challenges the order dated 19.5.2017 passed by respondent No.1
Divisional Commissioner and a communication/note-sheet dated
20.5.2017 prepared on that basis by respondent No.2 Corporation.
3] The facts are not in dispute. The controversy arizes due to
recognition of respondent No.3 as Leader of Opposition by respondent
No.4 Mayor in terms of Section 19-1AA of the Maharashtra Municipal
Corporation Act, 1949 (hereinafter referred to as "1949 Act"). The
petitioner claims that he was recognized and treated as Leader of
Opposition by respondent No.1 for the purposes of the Maharashtra
Local Authority Members Disqualification Act, 1986 and 1987 Rules
framed thereunder. These statutory provisions are referred to as
"1986 Act" and "1987 Rules" respectively in the body of this judgment.
The matter was presented in Vacation on 22.5.2017 and 23.5.2017.
The learned Vacation Judge issued notice and made it returnable on
26.5.2017. On 26.5.2017 prayer for grant of interim relief has been
rejected by a detailed order. It has been accepted prima facie that the
respondent No.1 Divisional Commissioner merely by accepting desire
of majority to treat the respondent No. 3 as their Leader cannot be said
to have acted either arbitrarily or contrary to law.
4] After this, the petition has been amended and Mayor of
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Nagpur Municipal Corporation has been added as respondent No.4.
Maharashtra Pradesh Congress Committee of Indian National
Congress and Indian National Congress (Nagpur City) are added as
respondent nos. 5 & 6. The other Councillors of Indian National
Congress Party elected to respondent No.2 Nagpur Municipal
Corporation as Corporators who support respondent no. 3, have been
added as respondent Nos. 7 to 22. The prayer clause in the petition,
however, remains the same.
5] Total 29 Corporators have been declared elected on symbol
of Indian National Congress party on 23.2.2017. On 4.3.2017, it is
claimed that meeting of 29 elected Corporators has been conducted
under Chairmanship of one Vikas Thakare, President Indian National
Congress (Nagpur City). Respondent No.3 Tanaji Wanwe suggested
name of petitioner Sanjay Mahakalkar for post of Leader of Congress
Party in Nagpur Municipal Corporation. Accordingly, he was elected
and President Shri Vikas Thakare informed the same vide letter dated
4.3.2017 to respondent No.1 Divisional Commissioner. Other
Councillors of Indian National Congress Party also submitted
necessary declarations to respondent No.1. Advocate Mr. Ganesh
Patil, Secretary of Maharashtra Pradesh Congress Committee of
Indian National Congress vide letter dated 4.3.2017 informed the
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respondent No.1 about election of petitioner Sanjay as Leader for a
term of 2½ years. The provisions of 1986 Act and 1987 Rules were
accordingly complied with.
6] Indian National Congress Party is the original political party
of 29 Corporators. It is the largest party in opposition in Nagpur
Municipal Corporation. Petitioner Sanjay, therefore, came to be
nominated as Leader of Opposition by respondent No.4 Mayor as per
Section 19-1AA of 1949 Act. The petitioner accordingly started
exercising powers of that post.
7] As per Section 16 of 1949 Act, five Councillors were to be
nominated on Nagpur Municipal Corporation and meeting for that
purpose was scheduled on 4.5.2017. As a Leader of Opposition,
petitioner received letter dated 2.5.2017 from respondent No.2
Corporation. The meeting was held on 4.5.2017 and names of
nominated candidates were finalized. 18.5.2017 was the date for
submission of their nominations.
8] On 16.5.2017 at about 1 p.m. Sanjay came to know that a
group of Corporators of Indian National Congress Party has created a
show that a meeting was held on 16.5.2017 for the purposes of
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election of a Group Leader. Petitioner Sanjay submits that he was not
aware of this meeting. There was no notice to all 29 elected
Corporators of Congress Party. The other group claims that 17
Corporators out of total 29 attended that meeting conducted in Pragati
Sabhagrah, Chhatrapati Square, Nagpur and elected respondent No.3
Tanaji as Group Leader. They then submitted a letter to respondent
No.1 Divisional Commissioner to record Tanaji as Group Leader.
Petitioner made enquiries and learnt that no such meeting was held.
9] Petitioner Sanjay submits that after enquiry he learnt that
four Corporators, namely, Sau. Neha Nikose, Ramesh Punekar,
Parasram Manvatkar and Dinesh Chavan stated that they did not sign
any letter on 16.5.2017 for change of Group Leader. They agreed to
sign a representation to respondent no.1 bringing this fact on record.
Petitioner Sanjay sent a communication to respondent no.1
accordingly. On 17.5.2017, he received a letter sent by Municipal
Secretary of respondent no.2 that respondent no.3 was to attend on
17.5.2017 at 4 p.m. with 17 Corporators for verification of their
signatures on communication dated 16.5.2017 sent to respondent
no.1. The verification was ordered by respondent no.1. On 18.5.2017
he received letter from the Municipal Secretary with its copy to one
Ramesh Punekar - Corporator and also to respondent no.3 Tanaji.
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Ramesh Punekar was called upon to remain present before the
Municipal Secretary on 20.5.2017 at 11 a.m. for verifying his signature.
10] When this compliance was planned on 20.5.2017, the
respondent no.1 Divisional Commissioner passed impugned order on
19.5.2017 itself and accepted claim of respondent no.3 Tanaji as
Leader of Indian National Congress Party in Nagpur Municipal
Corporation. It is this order which has been questioned in the present
petition. The petitioner Sanjay also points out that because of this
status conferred upon Tanaji, in a note-sheet on 20.5.2017 respondent
no. 4 Mayor has recognized respondent no.3 Tanaji as Leader of
Opposition for the purposes of Section 19-1AA of 1949 Act.
11] Most of the facts mentioned supra are not in dispute. The
respondents only state that petitioner was aware of meeting called on
16.5.2017 and as he did not enjoy support of majority, he did not
attend that meeting.
12] It is in this background that we have heard Shri S.K. Mishra,
learned Senior Counsel with Mr. P.V. Ghare, learned Advocate for the
petitioner Sanjay, Shri S.P. Dharmadhikari, learned Senior Counsel
with Mr. Khedkar, learned Advocate for Respondent Nos. 5 & 6, Shri
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Sunil V. Manohar, learned Senior Counsel with Shri A.A. Naik, learned
Advocate for Respondent No.3, Shri A.S. Jaiswal, learned Senior
Counsel with Mr. M.S. Sharma, learned Advocate for Respondent Nos.
7 to 22, Smt. A.R. Kulkarni, learned A.G.P. for respondent No.1 and
Shri J.B. Kasat, learned Advocate for Respondent Nos. 2 and 4.
13] Shri S.P. Dharmadhikari, learned Senior Counsel has
supported the contentions of Shri S.K. Mishra, learned Senior Counsel
and added to it. Shri Sunil V. Manohar, learned Senior Counsel has
opposed both of them and Shri A.S. Jaiswal, learned Senior Counsel
while supporting Shri Sunil V. Manohar, learned Senior Counsel has
made some additional submissions. The learned A.G.P. and Shri
Kasat, learned Counsel have supported the order dated 19.5.2017 and
consequential note-sheet dated 20.5.2017.
14] Shri S.K. Mishra, learned Senior Counsel for the petitioner
Sanjay, has submitted that the notice issued on 13.5.2017 for holding
meeting on 16.5.2017 by the 17 Corporators is not legal and valid. It is
not sanctioned or issued by Indian National Congress party and it is, if
issued by any body else, is at the eleventh hour. Subject therein was
to reconsider resolution dated 4.3.2017 on the ground that it recorded
incorrect facts. Object was to pass appropriate resolution electing
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Group Leader but then perusal of actual resolution dated 16.5.2017
does not reveal any discussion on business transacted on 4.3.2017.
He further states that if there was any legal and valid change in Group
Leader, intimation thereabout should have been sent by authorized
person on behalf of Indian National Congress party or then by its
Group Leader. Here intimation has been sent by one Harshal Sable,
Corporator (respondent no.7). Thus, this intimation is legally
unsustainable.
15] Shri S.K. Mishra, learned Senior Counsel for the petitioner,
further points out the provisions of Rule 3 of 1987 Rules to urge that
the said notice and proceedings conducted on 16.5.2017 are in its
contravention. No election of Group Leader has taken place on
16.5.2017 as per constitution of Indian National Congress Party. He
however has not substantiated it. Though various objections were
raised before the Divisional Commissioner to this meeting by petitioner
Sanjay, Divisional Commissioner has in the impugned order dated
19.5.2017 acted mechanically & obliged respondent nos. 7 to 22. The
valid objections raised by petitioner have been overlooked because of
judgment of Hon'ble Apex Court in the case of Sunil Haribhau Kale
Versus Avinash Gulabrao Mardikar And Others -(2015) 11 SCC
403 --(Civil Appeal No. 2080/15 decided on 20.2.2015). He submits
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that the contention that said judgment was not relevant and point
involved in this matter did not arise there, has been overlooked by
respondent no.1. The request made by Indian National Congress
Party has also been not properly evaluated. Though it was felt
necessary to verify signatures, that exercise was left incomplete and
without verifying signature of Corporator Ramesh and without waiting
for date scheduled to complete that exercise, hastily the impugned
order came to be passed. Thus respondent no.1 has not acted as an
independent and impartial authority in discharge of obligations cast
upon it by 1986 Act and 1987 Rules.
16] Shri S.K. Mishra, learned Senior Counsel for the petitioner,
invites attention to Section 19-1AA of 1949 Act to point out that there
also Mayor (respondent no.4) has to act with due application of mind.
He cannot mechanically accept Leader of Group recognized by
respondent no.1 as a Leader of Opposition for the purposes of that
provision. The consequential note dated 20.5.2017 is, therefore, bad
in law.
17] He contends that thus respondent no.1 has not recorded any
finding on contention that there was no meeting on 16.5.2017 or its
legality. The undisputed meeting conducted on 4.3.2017 attended to
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by all 29 Corporators, therefore, could not have been ignored. He also
states that as petitioner Sanjay has right to complete tenure as Leader
of Group for 2½ years, that tenure has been cut short without giving
any opportunity of hearing. Consequently, the petitioner also loses
statutory post of Leader of Opposition under Section 19-1AA of 1949
Act.
18] To explain the need of compliance with principles of natural
justice, he relies upon AIR 1967 SC 1269 - State of Orissa v. Dr.
(Miss) Binapani Dei and others (Placitum B paragraph 12) and AIR
2013 SC 681 - Manohar Manikrao Anchule v. State of Maharashtra
and another (paragraphs 17, 18, 19 & 22). Support is also taken from
judgment of this Court reported at 2006(3) Bombay Cases Reporter
852 - Jyoti Anil Ganeshpure .vs. State of Maharashtra to urge that
the proceedings before the respondent no.1 as also respondent no.4
were quasi-judicial in nature. Order dated 1.12.2008 in Writ Petition
No. 4664/08 (Mahadeo s/o Bhaiyalal Bundele .vs. State of
Maharashtra, through its Secretary, Urban Development,
Mantralaya Extension Mumbai 32 and others), is also relied upon
for that purpose. He contends that it was necessary for respondents to
demonstrate a power in constitution of the Indian National Congress
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Party enabling them to cut short the tenure. Full Bench of this Court in
2016(5) Mh.L.J. 436 - Shah Faruq Shabir and others .vs.
Govindrao Ramu Vasave & others has held that 1986 Act and Rules
thereunder are penal in character. As such, strict interpretation of
provisions contained therein is must and principles of natural justice
cannot be sidetracked. Rule 3 of 1987 Rules has not been fully
complied with and no intimation warranting any change in recorded
information in a register maintained by respondent no.1 is given by
Group leader like the petitioner or then authorized signatory of Indian
National Congress party. Even alleged Group Leader respondent no.3
Tanaji has also not submitted any such intimation. He draws support
from judgment reported at 2014 (3) SCC 183 Pune Municipal
Corporation and another vs. Harakchand Misirimal Solanki and
others - paragraph 18.
19] According to him, reliance upon judgment in case of Sunil
Haribhau Kale Versus
Avinash
Gulabrao Mardikar and Others
(supra) by Divisional Commissioner is erroneous since there the
controversy was entirely different in nature. He further points out that
any intimation for change needs to be sent by original political party as
understood in Section 2(j) of 1986 Act and not by respondent no. 7 or
any other person. He submits that judgment of Hon'ble Apex Court
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does not extend to original political party, i.e. Indian National Congress
Party in the present matter. It is confined only to issues at level of
Aghadi or Group.
20] To submit that Group Leader must be elected, he draws
support from judgment of this Court reported at 2011(3) ALL MR 512 -
Sahebrao s/o Narayan Kharat & another .vs. The Collector, Jalna -
paragraph 38. The petitioner Sanjay has been elected by original
political party and 29 Corporators, while this procedure has not been
followed when respondent no. 3 Tanaji came to be elected as alleged
on 16.5.2017. He claims that finding of no need of hearing reached by
respondent no.1 is contrary to the law in this respect. He points out
that resolution passed on 4.3.2017 still holds the field and needs to be
acted upon.
21] No power in 29 Corporators or then in Indian National
Congress party to recall petitioner Sanjay or to express no confidence
in him has been shown and this indirect "no confidence" casts a
stigma upon Sanjay. He relies upon observations of this Court in AIR
1982 Bombay 216 - Hindurao Balwant Patil and another .vs.
Krishnarao Parshuram Patil and others - paragraph nos. 10 & 18.
The respondent no.1 Divisional Commissioner does not possess
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power to recall or review or adjudicate After the earlier order passed
by respondent no.1 registering petitioner Sanjay as Leader of Group, it
could not have been, therefore, modified by him on 19.5.2017.
22] Coming to scope of power exercised by respondent no.1,
according to Shri Mishra, learned Senior Counsel, information received
by office of Divisional Commissioner is required to be entered in
register. Application of mind, if any, therefore, has to be by Divisional
Commissioner himself and he cannot delegate that power to anybody.
Here exercise of verification of signatures intimating change dated
16.5.2017 could not have been delegated by respondent no.1 to
anybody else. The exercise has vital importance. The respondent
no.1 has after such delegation, not waited for its completion and
hurriedly passed the order on 19.5.2017 itself, conferring status as
Leader of Group upon respondent no.3. The attention is invited to
word "decide" employed in Explanation 2 to Rule 4 of 1987 Rules to
contend that it casts obligation to get personally satisfied and hence,
the power cannot be delegated. Rule 5 is also relied upon to show that
duty to maintain register is of Commissioner and hence his personal
satisfaction about entries therein is necessary. Judgment of learned
Single Judge of this Court reported at 2015(2) Mh. L.J. 794 -Shrikant
@ Balasaheb M. Chaudhari .vs. State of Maharashtra and others
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paragraph 16 is pressed into service. To demonstrate need of strict
interpretation Full Bench judgment in the case of Shah Faruq Shabir
and others .vs. Govindrao Ramu Vasave & others (supra)
paragraph nos. 32, 36, 62, 69, 71 & 73 are relied upon by him.
23] Reply filed by respondents is also relied upon by him to urge
that respondent nos. 5 & 6 are still supporting petitioner Sanjay and
though other respondents are claiming fraud, they did not bother to
serve notice of meeting allegedly conducted on 16.5.2017 upon
petitioner.
24] Shri S.P. Dharmadhikari, learned Senior Counsel for
Respondent Nos. 5 & 6, adds to arguments of Shri S.K. Mishra,
learned Senior Counsel for petitioner. The municipal party is
subservient to its parent political party, i.e. original political party for all
purposes. Section 19-1AA of 1949 Act and Explanation to it show that
finding or decision thereunder is a political decision and, therefore, final
and conclusive. It does not leave any discretion in Mayor and order
dated 4.3.2017 passed by Divisional Commissioner, therefore, could
not have been discarded by respondent no.4 Mayor. He is drawing
support from judgment reported at 2009(1) Mh.L.J. 813 - Ulhas
Vasantrao Bagul @ Aba Bagul .vs. Pune Municipal Corporation
18 wp.3110.17
and others, more particularly portion at page 819. To explain concept
of Leader of Party in Opposition, he invites attention to judgment
reported at 2003 Mh.L.J. 902 - Abdul Rashid s/o Abdul Sattar and
others .vs. Vikas s/o Ratanlal Jain and others - paragraph 16. To
urge that 1949 Act and 1986 Act need to be construed harmoniously,
he draws support from AIR 2012 SC 1210 - Jeevan Chandrabhan
Idnani and another .vs. Divisional Commissioner, Konkan Bhavan
and others - paragraph 14 to 17 & 21. He argues that the provisions of
1949 Act cannot be interpreted to defeat the object of 1986 Act.
25] To explain scheme of 1986 Act, he has invited attention to Xth
Schedule of Constitution of India and judgment reported at 1998 (7)
SCC 517--Mayawati v. Markandeya Chand, paragraphs 4 to 8, 69 &
70. He also draws support from Full Bench judgment of this Court in
the case of Shah Faruq Shabir and others .vs. Govindrao Ramu
Vasave & others (supra) paragraphs 10, 11 to 14, 22, 38 & 39.
26] According to him, the judgments supra show that it is only
the original political party, i.e. Indian National Congress party which
can issue whip and municipal party consisting of 29 Corporators does
not possess such authority.
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27] Right to choose leader is again given to original political
party by Rule 2(b)(b-1)(i) of 1987 Rules. Rule 3 gives power to such
leader to submit information in Form 1 and hence election of such
Leader of Group is first step. According to him, under Rule 3(5) leader
of municipal party can issue whip because of authorization in his
favour by original political party and hence, whip has to be only by
Indian National Congress party. Meeting dated 16.5.2017, if any, is
neither at the instance of nor supported by original political party, i.e.
Indian National Congress Party and hence, it is liable to be ignored.
Meeting conducted on 4.3.2017 is recognized by and organized by that
original political party and hence, it is the only legal and valid meeting.
Information submitted about the proceedings of that meeting by group
leader elected therein is, therefore, only authentic material of which
cognizance needs to be taken by respondent no.1 and respondent
nos. 2 & 4.
28] To explain limited scope of judicial review in such matters,
Shri S.P. Dharmadhikari, draws support from 1992 Supplement to
SCC 651 -Kihoto Hollohan .vs. Zachillhu and others paragraph
109 at page 710. Judgment in the case of Abdul Rashid s/o Abdul
Sattar and others .vs. Vikas s/o Ratanlal Jain and others (supra)
paragraphs 19 & 20 are also relied upon by him for this purpose. He
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concludes by submitting that as original political party, namely, Indian
National Congress party has no involvement in process of alleged
election of respondent no.3 Tanaji as Leader of Group, it is bad.
29] Shri Sunil Manohar, learned Senior Counsel appearing for
respondent no.3, states that petitioner has not placed before this Court
order passed by Mayor under Section 19-1AA recognizing him as
Leader of Opposition. He further states that petitioner was elected by
29 Corporators elected on Nagpur Municipal Corporation and he has
not been elected by original political party, i.e. Indian National
Congress party. He then points out subsequent events leading to
intimation dated 16.5.2017 sent by respondent no.7 Harshal Sable
pointing out election of respondent no.3 Tanaji as group leader. He
further invites attention to the fact that original political party or original
party is defined only in 1986 Act and not in Section 19-1AA of 1949
Act.
30] The petitioner has failed to demonstrate that post of Group
Leader is a tenure post and any of his civil rights is violated. They did
not establish that curtailment of such tenure or civil right (if any) is
always possible only by original political party and not by municipal
party. Shri Sunil Manohar, learned Counsel submits that none of its
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contentions are substantiated by petitioner and under 1986 Act or 1987
Rules the municipal party is not subordinate to or subservient to
original political party. He has taken us through relevant provisions
including provisions about merger contained in Section 3, Section 5(1)
& (2) of 1986 Act to buttress his submissions. He adds that purpose of
1986 Act and 1987 Rules is to accord stability to the House, i.e.
Nagpur Municipal Corporation and it has got nothing to do with original
political parties which function outside the House. Its purpose or their
status is, therefore, not germane at all. He pleads that the provisions
of Disqualification Act, particularly Section 3 operate on an event
taking place in house and hence, scheme of Section 3 of 1986 Act is
not relevant for the purpose of understanding Section 19-1AA of 1949
Act. He further states that leader of municipal party, i.e. leader of
group needs to be elected. He invites attention to Sunil Kale vs.
Avinash, supra, for the said purpose. He further adds that 1987 Rules
give primacy to & deal with municipal party only.
31] Entire controversy raised in Writ Petition is, therefore, an
internal and private dispute of the 29 Corporators constituting
municipal party .i.e. party in opposition in respondent no.2 Corporation.
He relies upon judgments reported at 2007(3) Mh.L.J. 76 - Databhau
s/o Annasaheb Pathrikar .vs. State of Maharashtra and others,
22 wp.3110.17
2007(6) Mh.L.J. 216 -Narendra s/o Gotu Pardesi .vs. Mayor, Dhule
Municipal Corporation Dhule and others paragraphs 4, 11 to 18, 24
& 25, 2009(6) Mh.L.J. 695 - Prafulla s/o Vinodji Gudadhe .vs. State
of Maharashtra & others, paragraphs 21, 22, 25, 26; Sunil Haribhau
Kale .vs. Avinash Gulabrao Mardikar & others, (supra) paragraphs
9, 10 & 11 to explain his arguments. To counter arguments of
petitioner about violation of a civil right, he draws support from 2015(8)
SCC page 1- Vipulbhai M. Chaudhary .vs. Gujarat Cooperative
Milk Marketing Federation Limited and others and 2016(8) SCC
page 1- Nabam Rebia and Bamang Felix .vs. Deputy Speaker,
Arunachal Pradesh Legislative Assembly and others. He claims
that power to express no confidence in an elected office bearer is
inherent in democracy. Similarly, entire controversy is a political
question which cannot be looked into by this Court in writ jurisdiction.
32] To explain the scheme of Section 19-1AA of 1949 Act, he
has taken us through Sections 5, 19 & 19-1A of that Act. He explains
that 1949 Act does not deal with concept of original political party at all.
33] According to him, petitioner never disputes holding of
meeting dated 16.5.2017 and only defence was about absence of or
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forging of signatures of four Corporators upon it as pleaded in
paragraph no. 24. The impugned order considers this aspect.
Signatures have been verified by an independent impartial authority
and entire process has also been videographed. Necessary
opportunity was also extended and thereafter impugned orders have
been passed.
34] Coming to case pleaded by the Shri Bana Bakode, he states
that said intervenors are not representing original political party and
there is no such request by that party. In verification process,
respondent no.3 established support of 16 Corporators out of total 29
& proved his majority.
35] Judgment at 2007(6) Mh.L.J. 775 Vilas s/o Supdaji
Shelke .vs. Commissioner, Akola Municipal Corporation, Akola
and others - paragraphs 9 to 11 and judgment dated 1.12.2008 in
Writ Petition No. 4664/08 delivered at Nagpur are relied upon by him
to urge that it does not deal with question of violation of principles of
natural justice. 2012(5) Mh.L.J. 853 Sanjay Devram Bhoir and
another .vs. Mayor, Thane Municipal Corporation and others,
paragraph 7 is pressed into service to urge that there is no option
given to Mayor. 2012(5) Mh.L.J. 330-Jeevan s/o Abajirao Ghogre
24 wp.3110.17
Patil .vs. Mayor, Nanded-Waghala Municipal Corporation and
others, paragraph 22 is read out to show Court's role & parameters
showing how a political question needs to be approached. 2003(4)
Mh.L.J. 520 - Rohidas Shankar Patil .vs. Mayra Gilbert Mendosa,
Mayor & others, particularly paragraphs 24 & 25 are relied upon by
him for substantiating his contention that petitioner has no cause of
action. According to him, function of Mayor is ministerial and not
adjudicatory. It is his subjective satisfaction and hence, no hearing is
contemplated. Mayor has to act fairly and procedure followed has to
be transparent. Shri Sunil Manohar, learned Senior Counsel submits
that it has been so here & there are no allegations of any bias,
malafides or of use of irrelevant consideration by Mayor. Section 19-
1AA employs word "recognized" and it, therefore, shows only an
acknowledgment and declaration of an existing fact. Such leader is
already notified by respondent no.1 Divisional Commissioner. Ground
9-A in Writ Petition is pressed into service by him to show that
petitioner himself accepts such recognition to be a consequential or
incidental event. Before respondent no.4 Mayor nobody has claimed
any opportunity of hearing and there was no objection raised. After the
Mayor finds that 16 Corporators are supporting respondent no.3
Tanaji, the status of Leader of Opposition has been conferred on
Tanaji.
25 wp.3110.17
36] Shri A.S. Jaiswal, learned Senior Counsel points out that 16
Corporators are even today supporting respondent no.3 Tanaji.
37] Shri J.B. Kasat, learned Counsel invites attention to
pleadings to urge that decision has been taken by Mayor and there is
nothing wrong in or about it. Learned A.G.P. appearing for
respondent no.1 Divisional Commissioner supports the order dated
19.5.2017.
38] Shri S.K. Mishra, learned Senior Counsel in reply arguments,
points out that provision contained in Rule 3 of 1987 Rules has been
violated as information about alleged change is not submitted by
Group Leader. The intimation is by so-called new group and hence,
its due verification by respondent no.1 Divisional Commissioner
himself was essential. When petitioner himself was recognized as
Leader of Opposition by respondent no.4, change therein could have
been accepted by respondent no.4 only after due verification and due
application of mind. Respondent no.4, therefore, should have
consulted all 29 Corporators. Municipal party, a smaller group, for the
purposes of 1986 Act or 1987 Rules cannot be recognized as political
party relevant under Section 19-1AA of 1949 Act. He also invites
attention to fact that Division Bench of this Court in judgment in the
26 wp.3110.17
matter of Praful Gudadhe .vs. State of Maharashtra (supra) in case
of disputed facts, did call for a report from the Divisional Commissioner
and then proceeded further.
39] Shri S.P. Dharmadhikari, learned Senior Counsel submits
that political party in opposition is a concept not defined in 1986 Act or
1987 Rules. The judgment in Mayawati v. Markandeya Chand,
(supra) is binding and contention of respondents that portion read out,
particularly paragraph 50 or paragraph 124 do not lay down any law is
incorrect. Law has been laid down by Hon'ble Apex Court from
paragraph 69 onwards in that judgment and though it is contained in
para recorded by a Hon'ble Judge of Apex Court, other Hon'ble Judge
has not disagreed with it. Full Bench of this Court in 2016 has
followed it. He also invites attention to para 4 in Narendra s/o Gotu
Pardesi .vs. Mayor, Dhule Municipal Corporation Dhule and others
(supra), Databhau s/o Annasaheb Pathrikar .vs. State of
Maharashtra and others (supra)
Sunil Haribhau Kale
Vs.
Avinash
Gulabrao Mardikar And Others (supra) to urge that defence raised is
erroneous and misconceived.
40] We note that the prayers in petition show challenge to order
dated 19.5.2017 passed by respondent no.1 Divisional Commissioner
27 wp.3110.17
and to order-sheet dated 20.5.2017 (cleared by the Mayor) by the
office of Nagpur Municipal Corporation.. This order dated 19.5.2017
after mentioning facts points out that respondent no.7 Harshal Sable
on 16.5.2017 gave intimation about election of respondent no.3 Tanaji
as leader of municipal party of Indian National Congress with
signatures of 17 Corporators. Petitioner Sanjay has raised objection to
it on 17.5.2017. Only objection raised by him is about genuineness of
signatures of four named Corporators. He, therefore, requested for
verification of allegedly put by said 4 Corporators on it. This fact is
not in dispute. It is apparent that the petitioner, in his first objection did
not plead that no meeting was conducted on 16.5.2017 or then 13
other Corporators did not sign upon intimation. He only objected to
four specific signatures upon it. Names of those four signatories are
already mentioned by us, supra. The objection of this nature is
obviously after proper inquiry by him. If these four Corporators are
excluded, intimation given by the respondent no. 7 Harshala in favour
of respondent no.3 Tanaji then would be only by 13 Corporators.
Indian National Congress Party, i.e. original political party has 29
Corporators on respondent no.2 Corporation. 13 Corporators out of
29, therefore, would not have constituted majority and in its absence,
the status of petitioner as Group Leader could not have been removed.
28 wp.3110.17
41] Perusal of intimation submitted by respondent no.7 shows
that it specifically sought change in Group Leader recognized by
respondent no.1 on 4.3.2017. Thus, fact that petitioner was
recognized as Group Leader on 4.3.2017 and he was sought to be
displaced is not in dispute. Intimation submitted by respondent no.7
Harshal is accompanied by Resolution and that Resolution is
supported by 17 signatures. Only four were in dispute before
respondent no.1.
42] The impugned order also shows that because of this limited
controversy, respondent no.1 has embarked upon exercise of
verification of signatures and entrusted it to Deputy Director, Municipal
Administration. It is obvious that if there was to be any objection to this
exercise, respondent no.1 needed to be & should have been left free to
look into it. Moreover, he did not direct verification of only four
signatures but, because of assertion of fraud, found it fit to look into all
signatures upon the intimation in dispute. The Authorized Officer
(Regional Deputy Director, Municipal Administration) has conducted
that exercise wherein total 16 Corporators participated. They
accepted their signatures & thus supported the meeting & proceedings
dated 16.5.2017. Only one Corporator, namely, Ramesh Punekar did
not turn up on scheduled day. Entire exercise of verification has been
29 wp.3110.17
videographed. Correctness of these facts is not in dispute.
43] The impugned order also notes the fact that Ramesh
Punekar was informed to remain present on 20.5.2017 at 11 a.m. for
verifying his signature. The impugned order records that said chance
was given to Punekar by Municipal Commissioner of Municipal
Corporation at his level and not by respondent no.1-Divisional
Commissioner. Respondent no. 1 has thought it proper to proceed
further without waiting for verification of signature of Ramesh Punekar.
This time for verification was not extended by him & was not binding on
respondent no.1 at all. On the contrary, satisfied with verification
already conducted by Regional Deputy Director of Municipal
Administration on 17.5.2017, respondent no.1 deemed it proper not to
wait till 20.5.2017 and has proceeded to pass impugned order on
19.5.2017. When 16 Corporators out of total 29 accepted their
signatures on proceedings of meeting dated 16.5.2017 and supported
respondent no.3 Tanaji as Group Leader, no fault can be found with
this decision of respondent no.1. Respondent no.1 has looked into all
relevant aspects including extension unauthorizedlly given by
Municipal Commissioner without consulting respondent no.1 and then,
proceeded to pass the order on 19.5.2017. The Petitioner does not
plead lack of bonafides at all on part of the Divisional Commissioner.
30 wp.3110.17
When the verification already brought on record the majority, the step
taken on 19.5.2017 by the Divisional Commissioner can not be seen
as hasty one.
44] The respondent no.1 has then appreciated judgment of
Hon'ble Apex Court in the case of Sunil Haribhau Kale .vs. Arvind
Gulabrao Mardikar & others (supra). In that judgment, the Hon'ble
Apex Court has found that once a municipal party is formed and
recognized by Divisional Commissioner, in view of Section 2(i) of 1986
Act, a Group Leader is chosen by such municipal party. 1987 Rules
do not provide for nomination of a Group Leader. Such Group Leader
elected by municipal party can be changed only by municipal party and
not by any one constituent thereof. In facts before Hon'ble Apex Court,
one of the constituents of municipal party, namely, Indian National
Congress party (original political party) had 17 members and Hon'ble
Apex Court has held that still such original political party cannot
impose a group leader on a municipal party.
45] Perusal of impugned order dated 19.5.2017 shows that
Professor Dinesh Bana Bakode and one Deepak Wankhede, Vice
President of Nagpur City (District) Congress Committee submitted their
separate letters and sought opportunity to Maharashtra Pradesh
31 wp.3110.17
Congress Committee or Nagpur District Congress Committee to submit
their say. Respondent no.1 Divisional Commissioner has found it not
necessary. The Divisional Commissioner has found that original
political party was not concerned in any way with the controversy.
There is nothing wrong with this application of mind. These persons or
then their original political party has not brought on record any material
to demonstrate any prejudice caused due to this approach of the
Divisional Commissioner.
46] In view of this finding and exercise, respondent no.1 has
recognized respondent no.3 Tanaji as Group Leader of Congress
Municipal Party. Respondent no. 4 Mayor has then proceeded to
discharge obligation under S.19-1AA of 1949 Act.
Section 19-1AA of 1949 Act reads as under :-
" Section 19-1AA. Leader of Opposition :
(1) An elected Councillor who is, for the time being,
the Leader of the Party in opposition, having greatest
numerical strength and recognised as such by the Mayor,
shall be the Leader of the Opposition.
Explanation.-- Where there are two or more parties in the
opposition, having the same numerical strength, the Mayor
shall, having regard to the status of the party, recognise the
32 wp.3110.17
Leader of any one of such parties as a Leader of the
Opposition for the purposes of this Act and such
recognition shall be final and conclusive.
(2) There shall be paid to the Leader of the
Opposition such honoraria and allowances and other
facilities as may be provided by regulations made in this
behalf by the Corporation."
Thus, a leader of party in opposition having greatest numerical
strength and recognised as such by Mayor becomes Leader of
Opposition for the purposes of this provision. Fact that Congress
Municipal Party has such greatest numerical strength is not in dispute.
Fact that it is party in opposition is also not in dispute. The only
question is out of its 29 Corporators, who should be the Leader of that
party. The Leader of Congress Municipal Party is to be recognised by
Mayor as Leader of Opposition. Note submitted to Mayor by office of
respondent no. 2 Municipal Corporation contains all relevant facts &
shows necessary consideration in this respect. Order of respondent
no.1 conferring status as Group Leader on respondent no.3 Tanaji on
19.5.2017 is also mentioned. Then provisions of Section 19-1AA and
the need of recognising the changed Group Leader because of
language therein is also pointed out. Accordingly, the note has been
placed before the respondent no.4 Mayor and this has been approved
33 wp.3110.17
by him. It cannot be said that respondent no.4 Mayor, therefore, has
acted mechanically. Application of mind necessary for the purposes of
Section 19-1AA is apparent in the matter.
47] Though parties have raised various contentions, need of
harmonious interpretation and an effort to read 1949 Act as also 1986
Act consistently with each other is not in dispute. Various judgments
have been relied upon for that purpose. Judgment particularly on
Section 31A of 1949 Act supports the same. As there is no dispute
between parties in this regard, we need not look into all those
judgments. Even otherwise, when object of 1986 Act and 1987 Rules
framed thereunder is to strengthen democracy, the provisions of later
cannot be used to defeat the provisions of earlier enactment and vice
versa.
48] The perusal of 1986 Act shows definition of phrase
"municipal party". For Municipal Corporation, it is group of Corporators
for the time being belonging to that political party as explained in
Explanation to Section 3. Thus, it is "group" which is recognised as
municipal party and it is, therefore, distinct from political party.
Explanation (a) to Section 3 reveals that such corporator is deemed to
belong to a political party which set him up as a candidate for election.
34 wp.3110.17
Undisputedly, municipal party consists of a smaller group carved out of
the original political party. In present facts, it is not in dispute that 29
corporators have been set up by political party, namely, Indian National
Congress party for election as corporators to respondent no.2 Nagpur
Municipal Corporation. Thus, group of 29 corporators, therefore,
formed or forms a municipal party. Section 5 of 1986 Act is about
disqualification on ground of defection. It stipulates that it does not
apply in cases of merger. Reading of Section 5(1) reveals that when
original political party, i.e. Indian National Congress Party here merges
with another political party, a corporator can safely become member of
such new entity coming into existence after merger. He can also
safely refuse to accept merger and he or the municipal party can opt
to function as a distinct group. In that event, after merger of such
original political party, such unwilling group is deemed to be a political
party for the purpose of sub-section (1) of Section 3 and also original
political party for the purpose of sub-section (1) of Section 5. This,
therefore, shows that Legislature has intended to strengthen the
elected group of Corporators at institutional level & hence, protect
people's voice itself within such institution ie local body &
administration in a Municipal Corporation. The contention of petitioner
that original political party (Indian National Congress Party here) has
been given a upper hand or a major role while municipal party is
35 wp.3110.17
subservient to it, therefore, has to fail. Unless and until there is some
defiance or violation or a wrong at the level of or within the municipal
party & it has impact on some municipal matter or business of a
municipal corporation, provisions for defection in 1986 Act or 1987
Rules cannot operate. Then also, there is a super added requirement
that such a wrong conduct should not have been condoned by the
original political party. Judgment of Hon. Apex Court in Mayawati v.
Markandeya Chand (supra) considering para 3 of the Tenth Schedule,
need not detain us more.
49] Perusal of scheme of 1987 Rules in this respect shows that
Rule 2(b)(b-1)(i) defines "Leader in relation to a municipal party".
Thus, leader is not in relation to original political party but in relation to
municipal party. Parties do not dispute that he is required to be
elected by the corporators of opponent municipal party in Municipal
Corporation. Information thereabout is to be forwarded by leader of
such party. The initial information was accordingly furnished on
4.3.2017 and petitioner Sanjay was recognised as Leader of Congress
Municipal Party. Fact that there has been change in it on 16.5.2017 is
duly established. 16 out of total 29 corporators have sought that
change and information about change is also received by respondent
no.1 Divisional Commissioner. The Divisional Commissioner has
36 wp.3110.17
verified that information in best possible manner and found it correct.
Contention that such intimation should have been given by petitioner
Sanjay is erroneous because Sanjay would never have given it.
Intimation given by respondent no.7 Harshal is supported by
authorization in that regard given to her by all 17 elected councillors to
approach respondent no.1 for change of group leader and for
consequential recognition of a new leader. This fact and authorization
has not been disputed by petitioner before us. The accompanying
resolution submitted by respondent no.7 is not in dispute. Resolution
dated 16.5.2017 expressly stipulates that petitioner Sanjay was never
approved as Group leader by 17 corporators who have placed their
signature below resolution dated 16.5.2017. In view of verification
exercise undertaken by respondent no.1, correctness of this
proceeding as recorded on 16.5.2017 has been established. This
resolution, therefore, shows that respondent no.3 Tanaji has been
elected as a Group Leader by majority of Congress Municipal Party.
There is nothing brought before us to show that said meeting was
contrary to any mandate/whip of the original political party or then, any
direction not to hold it or not to attend it was ever issued by the original
political party to any of its 29 Corporators. Hypothetical question is also
whether for such a defiance, legally, any action against the majority of
municipal party corporators is envisaged in 1986 Act or the 1987
37 wp.3110.17
Rules.
50] This position emerging on record has been acted upon and
implemented by respondent no.4 and respondent no.2 by conferring
status as Leader of Opposition on respondent no.3 Tanaji. Section
19-1AA itself uses the words "for the time being". Thus, it accepts &
provides for a possibility of change in party in opposition or numerical
strength in it, which is inherent in democracy. If such change is
brought out legally, Section 19-1AA obliges Mayor to take its
cognizance and to execute it. Language employed itself supports the
change as per desire of majority not only in leader of opposition but
also in largest municipal party. Factors therein like "for the time being"
or "the Leader of the Party in opposition" or "having greatest numerical
strength", indicate the use of events carrying intrinsic potential to
change as parameters. No law has been pointed out which prohibits or
condemns any change in any one or more of these factors. Hence, the
determination of leader of opposition in a vibrant democracy has to be
with reference to these dynamic events. This Section calls for an
attention to a state of affairs prevailing at a given time & need to
construe it in consonance with such "point of time", when the exercise
is being undertaken by the Mayor.
38 wp.3110.17
51] Neither petitioner nor respondents have invited our attention
to document of constitution of Congress Municipal Party. A municipal
party can not be registered with Respondent no. 1 without such a
Constitution. Petitioner has not urged that notice of meeting dated
16.5.2017 should have been issued and served in a particular manner
as is specified in said constitution. Petitioner has also not pointed out
that constitution does not permit such change in resolution dated
4.3.2017 or its cancellation or modification for a particular time.
Petitioner has also not urged that such substitution or modification of
Group Leader is prohibited even when majority in Municipal Party
desires it. Such an argument may militate with the spirit of S.19-1AA of
1949 Act. We, therefore, find no substance in contention that the
change brought about on 16.5.2017 is illegal or bad.
52] In fact, when 17 or 16 corporators on 16.5.2017 accept that
on 4.3.2017, they did not support petitioner as Group Leader, it is
apparent that registration of petitioner Sanjay as Group Leader by
respondent no.1 Divisional Commissioner is itself wrong and
unsustainable. It called for rectification. Their grievance recorded in
meeting dated 16.5.2017 goes to uproot the proceedings allegedly
conducted on 4.3.2017. If meeting for change or correction could not
have been conducted by 17 corporators of a municipal party or then
39 wp.3110.17
only a Secretary or President of original political party, namely, Indian
National Congress party could have convened/conducted such a
meeting, a legal provision in that respect contained in such
Constitution ought to have been pressed into service by petitioner.
There is no such effort on his part. Neither petitioner nor respondent
nos. 5 & 6 have pointed out any such legal bar or then any
proceedings initiated by them under Sections 6 or 7 of 1986 Act
against respondent nos. 3, 7 to 22 for their alleged defection or implied
act of giving up voluntarily the membership of Indian National
Congress. No proceedings under Rule 6 of 1987 Rules have been
filed urging that these respondents have given up voluntarily the
membership of Indian National Congress or have violated any whip
legally issued in the matter.
53] Alleged violation of principles of natural justice also call for
consideration. Observations of the Hon'ble Apex Court in State of
Orissa v. Binapani Dei, (1967) 2 SCR 625 : AIR 1967 SC 1269 :
(1967) 2 LLJ 266 show that there alteration in date of birth was the
bone of contention. Some preliminary enquiry was made by one Dr S.
Mitra. but the report thereof was never disclosed to the first respondent
Binapani. Facts in the case also support the prejudice caused to Dr.
Binapani. Thereafter she was required to show cause why April 16,
40 wp.3110.17
1907 should not be accepted as the date of birth and without recording
any evidence, the impugned order was passed. Such an enquiry and
decision are held contrary to the basic concept of justice and cannot
have any value. There were four different dates as birth dates before
the State authorities. The order though administrative in character, but
Hon. Apex Court states that even an administrative order which
involves civil consequences, could have been made consistently with
the rules of natural justice after informing the first respondent of the
case of the State, the evidence in support thereof and after giving an
opportunity to her of being heard and meeting or explaining the
evidence. As no such steps were admittedly taken, the High Court
was, was found right in setting aside the impugned order of the State.
54] In Manohar Manikrao Anchule v. State of Maharashtra
and another (supra) , Hon. Apex Court points out in paragraph 25 that
the principle is clear and settled that right of hearing, even if not
provided under a specific statute, the principles of natural justice shall
so demand, unless by specific law, it is excluded. It is more so when
exercise of authority is likely to visit the person with consequences of
civil nature. It finds the State Information Commission wrong in forming
an opinion that the appellant was negligent and had not performed the
duty cast upon him. After 4-4-2007, the date when the appellant was
41 wp.3110.17
transferred to Akola, he was not responsible for the acts of omissions
and/or commission of the office at Nanded. We are of the considered
opinion that the appellant had shown that the default, if any on his part,
was not without reasonable cause or result of a persistent default on
his part. On the contrary, he had taken steps within his power and
authority to provide information to Respondent 2. It was for the
department concerned to react and provide the information asked for.
In the present case, some default itself is attributable to Respondent 2
who did not even care to respond to the letter of the Department dated
11-4-2007. The order passed by the State Information Commission
dated 26-2-2008 and the judgment of the High Court under appeal
were set aside. Thus in this matter, the Hon'ble Apex Court notices
adjudicatory powers conferred on the Forum & also the resultant
prejudice caused.
55] In present matter, the objection raised by the Petitioner was
very specific & hence, an exercise of verification of all 17 signatures on
the proceeding dated 16.5.2017 was undertaken by the respondent no.
1. Looking to the dispute raised, the responsible officer like
respondent no. 1 found it safe to verify all the signatures & did not feel
it proper to restrict the exercise to only disputed signatures. There is
no challenge to correctness of this decision or the outcome thereof.
42 wp.3110.17
Only delegation to a another officer to verify the same was
questioned. We have already found no merit in it. It is obvious that the
Petitioner is not prejudiced in any way.
56] Jyoti w/o Anil Ganeshpure Vs. State of Maharashtra and
others (supra) or the other judgments like Mahadeo s/o Bhaiyalal
Bundele .vs. State of Maharashtra, through its Secretary, Urban
Development, Mantralaya Extension Mumbai 32 and others,
(supra) or the Full Bench of this Court in Shah Faruq Shabir and
others .vs. Govindrao Ramu Vasave & others (supra) relied upon by
the Petitioner to submit that the power exercised by the Respondent
no. 1 is quasi judicial in nature or for interpreting the 1986 Act & 1987
Rules strictly, therefore need not be dealt with in present facts.
Reliance upon the classic statement (of Lord Roche in Nazir Ahmad)
that where a power is given to do a certain thing in a certain way, the
thing must be done in that way or not at all, other methods of
performance are necessarily forbidden & reliance on Pune Municipal
Corpn. v. Harakchand Misirimal Solanki (supra) is also unwarranted.
No legal provision conferring the right upon the Petitioner to any
specific statutory tenure has been pointed out by him & hence, it can
not be said that use of its right by the majority has resulted in any legal
43 wp.3110.17
Balwant Patil & others
injury to him. For the same reasons, Hindurao
Vs. Krishnarao Parshuram Patil & others (supra) also need not
detain us because there section 73 in Maharashtra Cooperative
Societies Act, conferred a tenure of 5 years & the model bye-law
permitting the no-confidence were not adopted by the society.
Judgment of Hon. Apex Court & law as expounded in Vipulbhai M.
Chaudhary .vs. Gujarat Cooperative Milk Marketing Federation
Limited and others, (supra), with purpose of placing provision like
Section 19-1AA in 1949 Act being considered little later, proves no
need to dwell on this Division Bench judgment as it is distinguishable
due to clear difference in language of both the provisions.
57] Vipulbhai M. Chaudhary .vs. Gujarat Cooperative Milk
Marketing Federation Limited and others, (supra) shows that the
Hon. Apex Court finds power of removal by majority or by no
confidence needs to be read in such statutes. In the light of discussion
above where We find that cognizance by respondent no. 1 of or the
proceedings in meeting dated 16.5.2017 do not tantamount to review &
16 out of 29 Corporators of Original Political Party ie Congress
National Party desired it & in absence of any provision fixing tenure of
leader of opposition, the displacement of Petitioner Sanjay is legal, the
exposition of law is not very relevant here. Observations therein by the
44 wp.3110.17
Hon. Apex Court, otherwise clinch the situation here. There also the
removal by no confidence was not expressly provided in the Bye-laws.
Neither was there any such provision in the Act or Rules. The only
enabling provision was Bye-law 18.2 which mandated that in case the
office of the Chairperson of the Federation falls vacant before the
expiry of his term for any reason, the Board has to elect a new
Chairperson for the remaining term. Hon. Court states that in the
background of the constitutional mandate, the question was not what
the statute does say but what the statute must say. If the Act or the
Rules or the bye-laws do not say what they should say in terms of the
Constitution, it is the duty of the court to read the constitutional spirit
and concept into the Acts. "Insofar as in its Act Parliament does not
convey its intention clearly, expressly and completely, it is taken to
require the enforcement agencies who are charged with the duty of
applying legislation to spell out the detail of its legal meaning. This may
be done either--(a) by finding and declaring implications in the words
used by the legislator, or (b) by regarding the breadth or other
obscurity of the express language as conferring a delegated legislative
power to elaborate its meaning in accordance with public policy
(including legal policy) and the purpose of the legislation." The Hon.
Apex Court observes that the cooperative society registered under the
Central or the State Act is bound to function as a democratic institution
45 wp.3110.17
and conduct its affairs based on democratic principles. Democratic
functioning on democratic principles is to be reflected in the respective
Acts or Rules or bye-laws both on the principle and procedure. If not, it
is for the court to read the democratic principles into the Act or Rules
or bye-laws. If a procedure is prescribed in any Act or Rule or bye-law
regarding election of an office-bearer by the board, as defined under
Article 243-ZH(b) of the Constitution of India, and for removal thereof,
by way of a motion of no-confidence, the same procedure has to be
followed. In case there is no express provision under the Act or Rules
or bye-laws for removal of an office-bearer, such office-bearer is liable
to be removed in the event of loss of confidence by following the same
procedure by which he was elected to office. Hence the Constitution
Bench judgment of Hon. Apex Court in Nabam Rebia and Bamang
Felix .vs. Deputy Speaker, Arunachal Pradesh Legislative
Assembly and others, (supra) therefore need not be gone into in this
case. The spirit & object of S.19-1AA of 1949 Act already discussed by
us supra & the very status of respondent no. 2 Body as institution of
local self governance, pave way even for no-confidence in certain
contingencies.
58] The respondent no.1 Divisional Commissioner has not
passed an order of either recall or review. After the earlier order
46 wp.3110.17
passed by him registering petitioner Sanjay as Leader of Municipal
Party, on 16.5.2017, there have been certain developments which
show that majority substituted respondent no. 3 Tanaji as Group
Leader. Cognizance of such a change need to be taken by him as the
Law does not prescribe any fixed term for Petitioner or any other
protection. The Division Bench of this Court in Databhau s/o
Annasaheb Pathrikar .vs. State of Maharashtra and others, (supra)
negates the contention that Corporator recognized as Leader of
Opposition is to be continued until the completion of the term of the
elected body of the Corporation. There is no legal bar to recognize any
other Corporator as Leader of Opposition whenever change in
numerical strength of the Councillors supporting a particular leader
takes place. In said matter, earlier petitioner Databhau was declared
as a leader of opposition being supported by 10 out of 18 elected
members of the Congress I party. Later respondent No.4 mustered the
support of 14 Councillors out of 18 Councillors belonging to Congress
(I) party which was the largest group amongst the opposition parties in
the Corporation. Division Bench declares that the decision taken by the
Mayor in recognizing respondent No.4 as a leader of opposition cannot
be faulted. It also holds that both the decisions are taken in the
different political backdrop. Act of recognition of respondent No.4 as a
Leader of Opposition therefore, was not the review of the earlier order
47 wp.3110.17
recognizing the petitioner as leader of opposition. Petitioner has not
demonstrated that this exposition is unsustainable. Paragraph 5 Order
dated 1.12.2008 in Writ Petition No. 4664/08 (Mahadeo s/o
Bhaiyalal Bundele .vs. State of Maharashtra, through its
Secretary, Urban Development, Mantralaya Extension Mumbai 32
and others,) reveals that there also there was no fixed tenure of
group leader or party leader. Any dispute in relation thereto was seen
as internal matter between the party & the party leader. This order
therefore does not advance the cause of the Petitioner.
59] Parties are in agreement about the need to democratically
elect the group leader & hence Sahebrao s/o Narayan Kharat &
another .vs. The Collector, Jalna, or Sunil Haribhau Kale v.
Avinash Gulabrao Mardikar, (both supra) need not be looked into for
said proposition.
60] In Shrikant @ Balasaheb M. Chaudhari Vs. State of
Maharashtra through its Secretary for Urban Development
Department & ors. (supra) , the President of political party in a
Municipal Council changed petitioner as group leader and appointed
respondent no.4 as such pursuant to unanimous decision of the
48 wp.3110.17
Yavatmal District Congress Committee. Learned Single Judge held
that there is no prohibition for the political party concerned to appoint
or authorise leader of such party for the purposes of 1986 Act and
1987 Rules. Role of Collector under these provisions was only to note
about the change informed and to communicate it to Municipal Council.
It is also held that if displaced leader was aggrieved by the action
taken by his own political party, he could approached President of his
political party but he cannot question the communication of substitution
sent by the Collector's Office to the Municipal Council. In present facts
also, the Respondent no. 1 has completed the process of verification of
signatures faultlessly & reached necessary satisfaction about
Respondent 3 Tanaji being the group leader. Strict interpretation
placed by Full Bench in Shah Faruq Shabir and others .vs.
Govindrao Ramu Vasave & others (supra) on 1986 Act or 1987
Rules also does not prohibit this exercise & does not bar Respondent
no. 1 from taking note of meeting dated 16.5.2017.
61] The Division Bench in Ulhas Vasantrao Bagul @ Aba
Bagul .vs. Pune Municipal Corporation and others, (supra), points
out that section 19.IAA of the 1949 Act does not contemplate an
election of a person. It contemplates simplicitor recognition of an
elected counselor by the Mayor as a leader of opposition. Therefore,
49 wp.3110.17
the Mayor has to see that a person is an elected counselor, belongs to
a party in opposition and the said opposition party is having greatest
strength in the House. One more thing required to be looked into is
that an elected counselor who is a leader of the party in opposition has
to be recognised as a leader of opposition. The leader of the party in
opposition means that a leader of political party which is sitting in
opposition. This judgment & the law laid down by the Hon. Apex Court
in Jeevan Chandrabhan Idnani and another .vs. Divisional
Commissioner, Konkan Bhavan and others - (supra) (paragraph 14
to 17 & 21) also demonstrate that the provisions of 1949 Act cannot be
interpreted to defeat the object of 1986 Act or 1097 Rules.. Very same
Division Bench of this Court in Abdul Rashid s/o Abdul Sattar and
others .vs. Vikas s/o Ratanlal Jain and others - (supra) reiterates
the same law & also finds that the word "party" in its proper
connotation means a "municipal party" in the Corporation or Council
as the case may be, having the greatest numerical strength and its
elected Councilors.
62] In Narendra s/o Gotu Pardesi .vs. Mayor, Dhule Municipal
Corporation Dhule and others, (supra) the Division Bench holds that
respondent no.1 proceeded on the erroneous basis that what was
required was the support of the majority of the Councillors of all the
50 wp.3110.17
Opposition parties and not the majority of the Councillors of only the
largest opposition party. Other Division Bench in Prafulla s/o Vinodji
Gudadhe .vs. State of Maharashtra & others, to which one of us
(B.P. Dharmadhikari, J. is party) observes that it is for mayor to
recognize a Leader of Municipal Party having greatest numerical
strength to be the Leader of Opposition. The mode and manner in
which it is to be done is left by statute to Mayor himself. Neither
petitioner nor respondent no.6 in that case, placed any material before
mayor to show that they were elected as Leader of Municipal Party by
the Party. The communication sent by Prafula resulting into the action
dated 28th April, 2008 only revealed that he was enjoying support of
20 Corporators. The exercise of verification undertaken by mayor on
16th June, 2008 again shown that he was enjoying support of 20
Corporators. None of the orders demonstrated that he was elected as
a Leader of Opposition by Municipal Party. The Bench observes that
mayor has to obtain appropriate report from Secular Democratic Front,
i.e., Municipal Party in that matter, about its leader and then recognize
such leader as Leader of Opposition in terms of Section 20-1E(1).
63] In Vilas s/o Supdaji Shelke .vs. Commissioner, Akola
Municipal Corporation, Akola and others, (supra) there was a
political alliance between the Indian National Congress and Nationalist
51 wp.3110.17
Congress Party and they together constituted a ruling party. Bhartiya
Janata Party had 11 councillors, Bahujan Mahasangh had 10 and Shiv
Sena had 7. There was a pre-poll alliance between Bhartiya Janata
Party and Shiv Sena. Bhartiya Janata Party is a single party having
largest numerical strength of corporators. There was no pre-election-
alliance of the independent candidate with Bhartiya Republican Party
and Bahujan Mahasangh. The Division Bench of this Court holds that
this heterogenetic group cannot have the status of "a party". Act of
respondent No.2 recognizing respondent No.3 as a Leader of
Opposition was found in patent disregard of mandatory provisions of
law and by way of gross abuse of power. In Jeevan s/o Abajirao
Ghogre Patil .vs. Mayor, Nanded-Waghala Municipal Corporation
and others, (supra) the Division Bench takes same view. In Sanjay
Devram Bhoir and another .vs. Mayor, Thane Municipal
Corporation and others, (supra) the Division Bench holds that
Section 19-1AA of 1949 Act does not confer a choice on the Mayor to
appoint any one except a Leader from a party having the greatest
numerical strength.
64] In 2003 (4) Mh.L.J. 520- Rohidas Shankar Patil .vs. Mayra
Gilbert Mendosa, Mayor & others (particularly paragraphs 24 & 25)
the Division Bench found itself unable to hold that NCP and INC can
52 wp.3110.17
be said to be 'parties in ruling' as contemplated by the Explanation to
Section 19-1A. When there was no aghadi or pre-election alliance and
in certain wards, both the parties contested the election against
candidates of each other though both Mayoress as well as Deputy
Mayor belonged to those two parties - Mayoress of NCP and Deputy
Mayor of INC. Both the candidates obtained equal number of votes
against their rivals i.e. 54 : 25. From the facts, however, Division
Bench held that both the parties are not parties in ruling. It observes
that --"In politics, there may be several considerations by various
parties to support a candidate of each other. These are questions
which can be considered by them, keeping in mind diverse factors. A
Court of law is ill-suited to resolve them." In paragraph 26 it is
observed - "25. In spite of wide powers of this Court under Article 226
of the Constitution, there are certain fields not subject to judicial
scrutiny. It is well-settled that "question of political wisdom could not be
subjected to judicial review". (Vide Bhut Nath vs. State of W.B., AIR
1974 SC 806)."
65] When the Petitioner Sanjay or his supporters can not point
out any binding statutory provision protecting his term or then,
rendering the proceedings of the meeting dated 16.5.2017 bad, mere
53 wp.3110.17
reliance upon judgment of Hon. Apex Court in Kihoto Hollohan .vs.
Zachillhu and others (supra) to press into service the scope & extent
of judicial review in such matters is unwarranted.
66] We repeat that none of the parties have opened a page in
the constitution or bye-law of the Municipal Party to which Sanjay or
Tanaji belong and with support of any clause therein, attempted to
either support or assail the later meeting dated 16.5.2017. Obviously,
the Petitioner has to suffer for this.
67] Here there are no allegations of malafides or perversity on
part of Mayor - respondent no. 4 in recognizing respondent no. 3
Tanaji as Leader of Opposition. On merits, We have found no
substance in the challenge. The 1986 Act & 1987 Rules are not aimed
at preserving any political party I.e. original political party. Its object is
to give stability to the body formed democratically after an election &
to ensure that part of such local body viz. "a municipal party" does not
cease to exist, except in limited situations. Hence, if the act of any
corporator forming a part of municipal party does not have any bearing
on role of that municipal party qua the administration of the local body
like Municipal Corporation, neither 1986 Act nor 1987 Rules can
spring to life. Internal strifes amongst the Corporators of a municipal
54 wp.3110.17
party for becoming its leader for the purpose of 1986 Act or 1987 Rules
can not have impact on the democratic administrative discharge &
functioning of the municipal corporation always. At least in present
matter, the displacement of Petitioner Sanjay by respondent no. 3
Tanaji does not warrant any action against later or against 16
Corporators supporting him under said Act & Rules. Even if any
breach of any bye-law/constitution/scheme regulating such internal
affairs is presumed, that by itself, is not justiciable in writ jurisdiction.
We therefore need not delve into the contention that it is only the
original political party, which can issue any whip & the municipal party
or its majority is subservient to it.
68] We, in effect, find that petitioner has miserably failed to
demonstrate any violation of his legal right or then violation of any
provision of 1949 Act or 1986 Act or 1987 Rules. No case is,
therefore, made out warranting intervention.
69] The Writ Petition is therefore dismissed. Rule stands
discharged. There will be no order as to costs.
JUDGE JUDGE.
J.
