Bombay High Court
Vikas S/O Pandurang Thakre vs The Commissioner, Nagpur ... on 14 September, 2017
Bench: B.P. Dharmadhikari
wp5986.17 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 5986 OF 2017
Vikas s/o Pandurang Thakre,
aged about 50 years, r/o
Shastri Layout, Nagpur. ... PETITIONER
Versus
1. The Commissioner,
Nagpur Municipal Corporation,
Civil Lines, Nagpur.
2. The Nagpur Municipal Corporation,
through its Commissioner, Civil
Lines, Nagpur.
3. The Municipal Secretary,
Nagpur Municipal Corporation,
Civil Lines, Nagpur.
4. The Mayor,
Nagpur Municipal Corporation,
Civil Lines, Nagpur.
5. The Additional Commissioner,
Nagpur Municipal Corporation,
Civil Lines, Nagpur.
6. Indian National Congress,
Through Shri Ganesh Patil,
General Secretary, Maharashtra
Pradesh Congress Committee,
office at Tilak Bhawan, Dadar,
Mumbai.
7. Sanjay s/o Madhukar Mahakalkar,
aged about 35 years, occupation -
Business, r/o Mahapalika Bhawan,
97, Ridge Road, Raghuji Nagar,
Nagpur.
::: Uploaded on - 18/09/2017 ::: Downloaded on - 19/09/2017 01:20:30 :::
wp5986.17 2
8. Tanaji s/o Suklal Wanwe,
aged about 55 years, occupation
Business, P.No. 109, r/o Darshan
Colony, Opp. KDK College,
Nandanwan, Nagpur.
9. Kishor s/o Damodar Jichkar,
aged - major, r/o Kinkhede
Layout, P.No. 9, Opp. Hislop
College, Civil Lines, Nagpur -01. ... RESPONDENTS
Shri S.P. Dharmadhikari, Senior Advocate with Shri Shantanu
Khedkar, Advocate for the petitioner.
Shri C.S. Kaptan, Senior Advocate with J.B. Kasat, Advocate for
respondent Nos. 1 to 5.
Shri S.K. Mishra, Senior Advocate with Shri Deogade, Advocate for
respondent No. 7.
Shri F.T. Mirza, Advocate for respondent No. 6.
Shri S.V. Manohar, Senior Advocate with Shri A.A. Naik, Advocate
for respondent No. 8.
Shri M.G. Bhangde, Senior Advocate with Shri R.M. Bhangde,
Advocate for respondent No. 9.
.....
CORAM : B.P. DHARMADHIKARI &
ARUN D. UPADHYE, JJ.
SEPTEMBER 14, 2017.
ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)
The petitioner - a candidate claims to be nominated
and recommended by Congress Municipal Party as also the
original Political Party (Respondent No. 6), has approached this
Court, assailing removal of his name as nominee and inclusion
of name of Respondent No. 9 in his place. The meeting for the
purpose of effecting actual nomination, which results in berth
on General Body of Nagpur Municipal Corporation, is
scheduled tomorrow i.e. on 15.09.2017. It is not in dispute
that the largest party in Nagpur Municipal Corporation being
Bhartiya Janta Party (BJP), has to nominate four persons while
respondent No. 6 has to nominate one.
2. Considering the nature of controversy and urgency,
we have heard the matter finally by issuing Rule and making it
returnable forthwith. Accordingly, we have heard Shri S.P.
Dharmadhikari, Senior Advocate with Shri Shantanu Khedkar
Advocate for the petitioner and Shri S.K. Mishra, Senior Advocate
with Shri Deogade, Advocate for respondent No. 7 as also Shri F.T.
Mirza, learned counsel for respondent No. 6, in support of the
petition. Shri C.S. Kaptan, Senior Advocate with J.B. Kasat,
Advocate for respondent Nos. 1 to 5, Shri S.V. Manohar, Senior
Advocate with Shri A.A. Naik, Advocate for respondent No. 8 and
Shri M.G. Bhangde, Senior Advocate with Shri R.M. Bhangde,
Advocate for respondent No. 9, have opposed the petition.
3. It needs to be noted that the controversy about
Leader of Opposition in terms of Section 19-1AA of the
Maharashtra Municipal Corporations Act, 1949, (hereinafter
referred to as 1949 Act), has been looked into by this Court,
practically between the very same parties, while adjudicating
Writ Petition No. 3110 of 2017. The judgment has been
delivered in the matter on 31.08.2017 and one of us (B.P.
Dharmadhikari, J.) is party thereto.
4. Shri Dharmadhikari, learned Senior Advocate, in
this backdrop submits that till 20.05.2017, when Respondent
No. 4 - Mayor, recognized Respondent No. 8 as a Leader of
Opposition, Respondent No. 7 - Sanjay was practically the
Leader of Opposition from 04.03.2017 onwards for the
purposes of Section 19-1AA of the 1949 Act as also Rule 5 of
the Maharashtra Municipal Corporations (Qualifications and
Appointment of Nominated Councillors), Rules, 2012
(hereinafter referred to as 2012 Rules). The process for filling-
in nominated posts was initiated on 02.05.2017 and
Respondent No. 7 - Sanjay was accordingly invited for meeting
and deliberations on 04.05.2017. Because of these
deliberations, nomination form has been filled in by present
petitioner in prescribed formate on 18.05.2017 and that is
recommended and supported by respondent No. 7. He
contends that 18.05.2017 was the last date for submission of
nomination papers and hence any change in situation
thereafter, cannot affect this nomination paper as also
recommendation since the situation had become irreversible
after 18.05.2017. He is relying upon the language employed in
Rule 5 of 2012 Rules to urge that consultation with the Leader
of Opposition on that date i.e. 18.05.2017 is mandatory for all
purposes and Respondent No. 7 happens to be such Leader of
Opposition. He as also Shri Mishra, learned Senior Advocate
have taken us through the order of Divisional Commissioner
dated 19.05.2017 to urge that status of Respondent No. 7 -
Sanjay as a Leader, representing the Congress Municipal Party,
has been taken away prospectively on that day and as such on
last day prescribed for nomination, Sanjay alone needed to be
consulted and recommendation by him, therefore, needed to be
acted upon. The language of Rule 5 of 2012 Rules is read out
and our attention is invited to Section 31-A of the Maharashtra
Provincial Municipal Corporations Act, 1949, (hereinafter
referred to as Provincial Act) to contend that Scheme in both is
pari materia. The Division Bench judgment of this Court in the
case of Kiran Ramchandra Suryavanshi vs. State of Maharashtra
& Ors., reported at 2013 (2) Mh. L.J. 433, in paras 17, 21 & 24
is read out to demonstrate the mandate and sanction of such
recommendation. They contend that nomination form filled in
by Respondent No. 9 on last date is not recommended by the
Leader of Opposition or even by the Group Leader (the leader
of Congress Municipal Party), hence that form cannot be
processed for filling in one seat available to Respondent No. 6
in the process of nomination.
5. Shri Mirza, learned counsel appearing for
respondent No. 6 has supported the arguments of Shri
Dharmadhikari and Shri Mishra, learned Senior Advocates.
6. Shri Kaptan, Shri Bhangde and Shri Manohar,
learned Senior Advocates have relied upon the observations in
the judgment dated 31.08.2017 in Writ Petition No. 3110 of
2017 to urge that Respondent No. 7 - Sanjay was displaced on
16.05.2017 itself as Group leader and, therefore, thereafter he
ceases to be the Leader of Opposition for the purposes of
Section 19-1AA of 1949 Rules. They urge that as per Scheme
of Rule 3(4) read with Rule 5 of the Maharashtra Local
Authority Members Disqualification Rules, 1987, the change
which has already taken place is required to be reported within
one month and its entry is to be taken in relevant registers after
due verification. However, this procedure or mechanism does
not bring that change into effect after its entry is taken in the
register. They, therefore, contend that the order dated
19.05.2017 passed by the Divisional Commissioner recognizing
Respondent No. 8 as a Leader of Congress Municipal Party
takes effect from 16.05.2017 itself and hence on 18.05.2017,
Respondent No. 7 - Sanjay was not a leader of that party as
also Leader of Opposition.
7. Our attention is drawn to language employed in
Rule 5 of 2012 Rules to urge that there consultation envisaged
is not only with Leader of House or Leader of Opposition but
also with the leader of each recognized or registered party.
Thus, on that day i.e. on 18.05.2017, Respondent No. 8 alone
was the Leader of registered Congress Municipal Party and
hence consultation with him and filing of nomination form by
Respondent No. 9 with his recommendation, therefore, cannot
be faulted with.
8. In addition, they argue that the provisions of
Section 31-A of the Maharashtra Provincial Municipal
Corporations Act, 1949, cannot be read as pari materia with
Rule 5 of 2012 Rules. According to them, the Scheme of both
these provisions is materially different and hence the judgment
of Division Bench of this Court in the case of Kiran Ramchandra
Suryavanshi vs. State of Maharashtra & Ors., (supra), cannot be
looked into as a binding precedent in present facts.
9. To substantiate the contention that the change takes
effect from the date on which it occurs and not from the date
on which its cognizance is taken by the Divisional
Commissioner, the Division Bench judgment of this Court in the
case of Ganesh Mahadeorao Thawre vs. Central Hindu Military
Education Society, Nashik & Anr., reported at 2007 (6) Mh. L.J.
589 and the judgment of learned Single Judge of this Court in
the case of Vijay K. Mehta & Anr. vs. Chaur K. Mehta & Ors.,
reported at 2008 (5) Mh. L.J. 853, have been relied upon.
10. Inviting attention to the facts of the case, they
submit that here, because of then pending dispute regarding
status of Respondent No. 7 - Sanjay and Respondent No. 8 -
Tanaji, as Group Leader, on 19.05.2017, a conscience decision
was taken and process of recommendation was postponed
awaiting its adjudication by this Court in Writ Petition No. 3110
of 2017. For that purpose, the proceedings recorded on
01.06.2017 are pressed into service.
11. Without prejudice, it is also submitted that the
process of consultation and recommendation envisaged in Rule
5 of 2012 Rules, is not a one time exercise but it is a continuous
one and after nomination forms are scrutinized and list of validly
nominated candidates emerge only, the final recommendation
upon consultation can be made. It is, therefore, contended that
as in present matter actual scrutiny was to take place on
19.05.2017, which was then postponed, the exercise envisaged
in Rule 5 (1) was not over and after adjudication by this Court
on 31.08.2017, that exercise has been accomplished. It is,
therefore, submitted that the status of Respondent No. 7 on
18.05.2017, as argued, was not relevant at all.
12. Shri Dharmadhikari and Shri Mishra, learned Senior
Advocates, submit that the Divisional Commissioner has passed
order against Respondent No. 7 - Sanjay on 19.05.2017 and
Writ Petition No. 3110 of 2017 was filed on 24.05.2017. Thus,
on the date of scrutiny i.e. on 19.05.2017, the matter was not
subjudice. They also rely upon the language of Section 19-1AA
of the 1949 Act, to urge that it mandates dual requirement and
the Corporator must not only be a leader of a group but also
recognized as the leader of such group i.e. the largest group in
opposition. Respondent No. 8 did not enjoy that status either
on 18.05.2017 or then on 19.05.2017 and hence the
nomination form supported/ recommended by Respondent No.
8 i.e. nomination of respondent No. 9, cannot be recommended
by Respondent No. 1 - Municipal Commissioner as a candidate
sponsored by respondent No. 6.
13. The perusal of judgment delivered by this Court on
31.08.2017 in Writ Petition No. 3110 of 2017 shows a finding
in paragraph 49 that change in group leader of Congress
Municipal Party occurred on 16.05.2017. There Rule 2(b)(b-1)
(i) defining "Leader" in relation to Municipal party has been
looked into and in the background of facts, after perusing
resolution dated 16.05.2017 passed by 16 Corporators out of
total 29 Corporators, the change recorded on 16.05.2017 is
held to be proved.
14. A perusal of Rule 3(4) of 1987 Rules show that
after a change takes places in any information already
furnished by the Leader of Municipal Party, it is to be reported
at the earliest and in any case within 30 days from its
occurrence. The said change is then to be incorporated in the
register of information maintained by the Divisional
Commissioner in terms of Rule 5. The express language of Rule
3(4), therefore, shows that after change takes place, its
intimation is required to be given. The entry in the register,
therefore, is in recognition of such change which has already
taken place in past. No provision in 1987 Rules stipulates that
such a change does not come into force till it is so recorded.
15. In this backdrop, when the order dated 19.05.2017
passed by the Divisional Commissioner is looked into,
discussion therein shows process of verification undertaken to
find out whether change has taken place on 16.05.2017. It
appears that because of some dispute about genuineness of
signatures, physical verification of signatures was undertaken
and after that, said order has been passed. The order mentions
that recognition given to Respondent No. 7 - Sanjay as Group
Leader is cancelled with immediate effect and it also thereafter
stipulates that election of Respondent No. 8 - Tanaji as a Group
Leader is given approval on 19.05.2017. Thus, two clauses (in
vernacular) cannot be read to mean that approval has been
given with effect from 19.05.2017. On the contrary, clause 2
therein specifically mentions that election of Respondent No. 8
is approved on 19.05.2017. Thus, that election which has
taken place on 16.05.2017 has been given approval on
19.05.2017. This observation of the Divisional Commissioner,
therefore, again does not show that respondent No. 8 - Tanaji
got the status as a Leader of Congress Municipal Party on
19.05.2017 for the first time.
16. The change which has taken place in terms of Rule
3(4), intimated before 18.05.2017, has been accepted and
entered in the register after due verification. We, therefore,
find no substance in the contention that respondent No. 7 -
Sanjay functioned as a Leader of Congress Municipal Party on
18.05.2017 or then functioned as Leader of Opposition in terms
of Section 19-1AA of 1949 Act, till 19.05.2017. He ceased to
possess both on 16.05.2017.
17. In view of this finding, we do not find it necessary
to look into the judgments in the case of Ganesh s/o
Mahadeorao Thawre vs. Central Hindu Military Education
Society, Nashik & Anr. (supra) and Vijay K. Mehta & Anr. vs.
Charu K. Mehta & Ors., (supra), which deal with the provisions
of Bombay Public Trust Act and change brought about in terms
of Section 22 thereof.
18. The judgment of Division Bench of this Court in the
case of Kiran Ramchandra Suryavanshi vs. State of Maharashtra
& Ors., (supra), considers Section 31-A of the 1949 Act. There,
the emphasis is on effecting actual nomination which results in
berth of a Councillor on Subject Committees by the
Corporation. Sub-section (2) mandates that Corporation has in
the process, to take into account the relative strength of
recognized parties after consulting the Leader of House, the
Leader of Opposition and the Leader of each such party or
group, which form its part. The proviso thereto clarifies that
the Corporation is not prohibited from nominating on
Committee any member not belonging to any such party or
group. It is this language and scheme which has been looked
into in paragraphs 21 and 24. This section does not envisage
any recommendation by the Municipal Commissioner.
19. The proviso as is appearing in sub-section (2) of
Section 31-A of the 1949 Act, or any provision on those lines is
missing in the Scheme of Rule 5 of the 2012 Rules. The proviso
to sub-rule (2) shows that if recommendation of Municipal
Commissioner is not to be acted upon by the Municipal
Corporation, it has to record the reasons therefor. In sub-rule
(1), the process of nomination, as such, has been looked into
and it is difficult to confine it only to stage of submission of
nomination form. For the purposes of convenience, we
reproduce the said Rule 5 of 2012 Rules below :
"5. Nomination of Councillors. - (1) For the
purpose of nomination of Councillors, the
Commissioner shall, after consulting the leader of the
House, leader of opposition and leader of each
recognized or registered party or group in the
Corporation, and after taking into account the
relative strength of such parties and groups
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 endeavor 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."
20. It is apparent that initially, the relative strength of
such parties and thereafter number of seats becoming available
to them needs to be ascertained for the purposes of nomination.
Thereafter the Leader of House, Leader of opposition and
leader of each recognized or registered party or group in the
Corporation is required to be consulted for recommending the
names of suitable persons to Corporation for their selection as a
nominated Councillor. Thus, this process is before exercise of
actual nomination i.e. appointment of such recommended
persons as a Councillor is to be considered by General Body.
This consideration by General Body is under sub-rule (2). In
present facts, this exercise under sub-rule (2) is scheduled on
15.09.2017. The recommendation is by the Municipal
Commissioner after consulting various Leaders of parties.
21. The names of suitable persons can be effectively
recommended to Corporation for being nominated, if the
nomination forms submitted by them are accepted or found to
be valid. It is apparent that if such form, for any reason
whatsoever, is rejected at the stage of scrutiny, there cannot be
recommendation of such name by the Municipal Commissioner.
General Body of Corporation cannot consider a person where
nomination paper is rejected, for nomination.
22. In present facts, the stage of scrutiny of nomination
papers was admittedly scheduled on 19.05.2017 at 11.00 AM.
The General Body proceedings of meeting dated 01.06.2017 of
Respondent No. 2 - Corporation show a statement that dispute
about Group leader of Congress Municipal Party was then
pending before this Court and hence the decision about one
person to be nominated by that Municipal Party was to be
taken after adjudication by the High Court. The proceedings
record that recommendation in this respect was to be made to
General Body after adjudication by the High Court. Writ
Petition was filed on 24.05.2017 i.e. after date scheduled for
scrutiny and the fact that the exercise of verification of
signatures was undertaken on 17.05.2017 itself, is not in
dispute.
23. It is equally important to understand parameters of
scrutiny of the nomination paper to be filed by a person named
therefor. Qualifications expected of such a designate are seen
in clauses (a) to (g) of the 2012 Rules. These clauses coupled
with Rule 5 cast an obligation upon the Municipal
Commissioner to associate such designate with the political
party naming him and to look into any dispute in relation
thereto, if more than one claims are received for same seat on
behalf of a political party. Precisely this has happened in
present matter. Proviso to Rule 5(2) also necessitates an effort
to choose between the "qualifications" possessed by such
designates. If more than one designate with same qualifications
is available, the Municipal Commissioner may be required to
recommend only one of them or then, request the Corporation
to choose only one out of them. While considering these
multiple factors having bearing on each other, he has also to
keep the relative strength of parties and number of seats falling
to its share for nomination. Thus, the recommendation with all
these attributes or properties is possible by the Municipal
Commissioner only after the scrutiny of the nomination papers
is over and final list of valid designates emerges. If any legal
dispute about status of a political party or group is pending in
competent court and it has impact on power to nominate,
obviously the Municipal Commissioner can not proceed with
the scrutiny of the papers till the dispute is resolved.
24. The facts apparent from the judgment dated
31.08.2017 in Writ Petition No. 3110 of 2017 show that on
17.05.2017, one of the Corporators did not remain present for
verification of his signature and hence, the Municipal
Authorities at their level, had postponed that exercise to
20.05.2017. These facts, therefore, were within the knowledge
of Respondent No. 1 and other officers on 19.05.2017 i.e. date
of scrutiny of nomination paper. The petitioners have not
brought on record anything to demonstrate that the nomination
papers submitted by the petitioner or by respondent No. 9 were
actually scrutinized on 19.05.2017. In this situation, in the
absence of any challenge to proceedings recorded on
01.06.2017, it is apparent that the Municipal Commissioner
could not have and did not recommend anybody as
representative of respondent No. 6 till 01.06.2017. Writ
Petition No. 3110 of 2017 pending on 01.06.2017 has been
decided on 31.08.2017. It is not the case of the petitioner that
scrutiny was over before 31.08.2017.
25. The material on record shows that respondent No. 7
- Sanjay ceased to be a leader of Congress Municipal Party on
16.05.2017. With the result, he also could not have continued
as leader of Opposition under Section 19-1AA of 1949 Act. The
respective arguments advanced by the parties on said section
show that "dual requirement" mandated therein is not in
dispute. Respondent No. 8 - Tanaji became leader of Congress
Municipal Party on 16.05.2017, however, he was not then
recognized as a leader of Opposition in terms of said section by
the Mayor. All this controversy has been looked into while
adjudicating Writ Petition No. 3110 of 2017. However, Rule 5
does not contemplate consultation only with the leader of
Opposition. It envisages and requires consultation also with the
leader of each recognized or registered party or group in the
Corporation. On 18.05.2017, Respondent No. 8 happened to
be the leader of Congress Municipal Party. He had supported
and recommended respondent No. 9 for nomination. Though
on 18.05.2017 validity of this act was in dispute, developments
later show that the said act cannot be faulted with. On the
contrary, it is apparent that on that day, respondent No. 7 -
Sanjay was not the leader of Congress Municipal Party and also
not, therefore, the leader of Opposition. In this situation, there
was no scope and occasion for consulting him in terms of Rule
5 of 2012 Rules. Hence, act of nominating a person i.e.
petitioner, by respondent No. 7 does not confer any legal right
upon the petitioner.
26. Moreover, the final list of valid designates of
respondent No. 6 or of Congress Municipal Party emerged in
present facts only on or after 31.08.2017 when the exercise
dated 20.05.2017 of respondent No. 4 - Mayor, recognizing
respondent No. 8 - Tanaji as leader of opposition, was upheld
by this Court in Writ Petition No. 3110 of 2017. Thus, after
said step of respondent No. 4 - Mayor, respondent No. 8 -
Tanaji becomes Leader of opposition on 20.05.2017. Hence, in
present facts when the scrutiny of nominations was resumed
after 31.08.2017, respondent No. 8 - Tanaji was also possessing
that status. The petitioner, recommended by respondent No. 7
- Sanjay, was aware that scrutiny did not take place on the
scheduled date. He and respondent No. 7 are also aware of the
proceedings of the general body meeting of the Corporation
dated 01.06.2017. They have not challenged omission to
scrutinize or then proceedings dated 01.06.2017. It, therefore,
follows that after 31.08.2017, when respondent No. 1 -
Commissioner resumed the exercise of scrutiny, he is legally
justified in effecting recommendation after consulting
respondent No. 8 - Tanaji. On that date, only Tanaji was the
leader of opposition and entitled to be consulted. Hence, even
on this count, the grievance made in the petition is without any
merit.
27. In view of this discussion, the contention that after
18.05.2017 situation had become irreversible, is misconceived
and cannot be accepted. We, therefore, find no case made out
warranting intervention. Writ Petition is accordingly dismissed.
Rule discharged. However, there shall be no order as to costs.
JUDGE JUDGE
*******
*GS.
