Bombay High Court
Sangram Arun Jagtap And Others vs The State Of Maharashtra And ... on 28 September, 2017
Bench: R.M. Borde
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.7956 OF 2016
01 Sangram Arun Jagtap,
age: 32 years, Occ: Agri.
& Business, Ward No.29B,
Ahmednagar.
02 Sampat s/o Vijay Baraskar,
age: 34 years, Occ: Business
and Social Work, R/o Ward No.1B,
Ahmednagar.
03 Sunilkumar s/o Sarjerao Kotkar,
age: 40 years, Occ: Business and
Social Work, R/o Kotkar Mala,
Nagar-Pune Road, Kedgaon,
Ahmednagar
(Authorized Representative of
Group Leader Mrs.Suvarna
Sandip Kotkar).
04 Smt.Indarkaur Kisansingh Gambhir,
age: 50 years, Occ: Agri. & Business,
Ward No.11-B, Ahmednagar.
05 Abhishek Balasaheb Kalamkar,
age: 33 years, Occ: Agri. & Business,
Ward No.12-B, Ahmednagar.
06 Shaikh Arif Shaikh Rafioddin,
age: 43 years, Occ: Agri. & Business,
Ward No.16-B, Ahmednagar.
07 Sou.Nita Avinash Ghule,
age: 30 years, Occ: Agri. & Business,
Ward No.24-A, Ahmednagar.
08 Vipul Mulchandji Shetiya,
age: 32 years, Occ: Agri. & Business,
Ward No.26-B, Ahmednagar.
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09 Vijay Nana Gavale,
age: 43 years, Occ: Agri. & Business,
Ward No.28-A, Ahmednagar.
10 Sow.Ashabai Subhash Pawar,
age: 51 years, Occ: Agri. &
Business, Ward No.28-B,
Ahmednagar.
11 Sou. Shital Sangram Jagtap,
age: 30 years, Occ: Agri. &
Business, Ward No.29-A,
Ahmednagar.
12 Nasim Khansaheb Shaikh,
age: 30 years, Occ: Agri. &
Business, Ward No.9-B,
Ahmednagar.
13 Smt.Bharti Eknath Bhosale,
age: 30 years, Occ: Agri. &
Business, Ward No.15-A,
Ahmednagar.
14 Smt.Khajabee Babulal Khureshi,
age: 56 years, Occ: Agri. &
Business, Ward No.8,
Ahmednagar.
15 Swapni Rohidas Shinde,
age: 32 years, Occ: Agri. &
Social Work, R/o Ward No.8,
Ahmednagar.
16 Kumar Babanrao Wakale,
age: 32 years, Occ: Agri. &
Business, Ward No.5-B,
Ahmednagar.
17 Smt.Jhinat Samilm Shaikh,
age: 30 years, Occ: Agri. &
Business, R/o Ward No.10-A,
Ahmednagar. Petitioners
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Versus
01 The State of Maharashtra,
through the Secretary,
Urban Development Department,
Maharashtra State, Mantralaya,
Mumbai-32.
02 The Municipal Corporation,
Ahmednagar, through its
Commissioner, Ahmednagar.
03 The In-Charge Nagarsachiv,
Ahmednagar Municipal Corporation,
Ahmednagar.
04 Sk.Mudassar Sk.Jahangir Khan,
age: 40 years, Occ: Agri. & Social
Work, R/o Gulshan Bungalow,
Burudgaon Road, Ahmednagar.
05 Sachin Tukaram Jadhav,
age: 32 years, Occ: Agri. & Social
Work, R/o Mangal Gate,
Ahmednagar.
06 Dilip Nanabhau Satpute,
age: 31 years, Occ: Agri. &
Social Work, R/o Bhushan Nagar,
Kedgaon, Ahmednagar.
07 Sow.Sunita Bhagwan Fulsundar,
age: 30 years, Occ: Agri. & Social
Work, R/o Janki Niwas, Fulsundar
Mala, Burudgaon Road,
Ahmednagar.
08 Manoj Laxman Dulam,
age: 34 years, Occ: Agri. & Social
Work, R/o Janki Niwas,
Fulsundar Mala, Burudgaon
Road, Ahmednagar.
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09 Smt.Kalawati Suryabhan Shelke,
age: 50 years, Occ: Agri. And
Social Work, R/o 155/25,
Ganesh Chowk, Civil HUDCO
Colony, Sawedi, Ahmednagar.
10 Sow.Sunita Kisan Bhingardiwe,
age: 32 years, Occ: Agri. And
Social Work, R/o Gandhi Nagar,
Bolegaon, Ahmednagar.
11 Chandrashekhar @ Basalaheb
Maruti Borate, age: 35 years,
Occ: Agri. & Social Work,
R/o Par Galli, Maliwada,
Ahmednagar.
12 The Mayor,
Ahmednagar Municipal Corporation,
Office at Ahmednagar Municipal
Corporation, Ahmednagar.
13 Samad s/o Wahab Khan,
age: 44 years, Occ: Business,
R/o Shirin Baug, Mukund Nagar,
Ahmednagar, presently in
District Central Jail, Ahmednagar. Respondents
Mr.P.M.Shah, Senior Counsel i/by Mr.G.K.Thigle, advocate for
petitioners.
Mr.S.B.Joshi, A.G.P. for Respondent No.1.
Mr.V.J.Dixit, Senior Counsel i/by Mr.V.S.Bedre, advocate for
Respondents No.2 & 3.
Mr.Mukul Kulkarni, advocate for Respondent No.5.
Mr.R.N.Dhorde, Senior Counsel i/by Mr.V.R.Dhorde, advocate for
Respondent No.6.
Mr.S.P.Brahme, advocate for Respondent No.12.
Mr.V.D.Hon, Senior Counsel i/by Mr.A.V.Hon, advocate for
Respondent No.13.
Respondents No.4 & 7 to 11 served.
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CORAM : R.M.BORDE &
SANGITRAO S. PATIL, JJ.
RESERVED ON : 20th June, 2017
PRONOUNCED ON:28th September, 2017.
JUDGMENT (Per R.M.Borde, J.):
Heard. Rule. Rule made returnable forthwith and
heard finally by consent of learned Counsel for respective parties.
2 Petitioners are the elected councillors of Municipal
Corporation Ahmednagar. General elections to the Municipal
Corporation took place in December 2013. After elections to the
Municipal Corporation on 16.02.2014, sixteen councillors came to
be appointed as members of the Standing Committee in view of
Section 20(1) read with sub-section (2) of the Maharashtra
Municipal Corporations Act, 1949 (hereinafter referred to as "the
Act of 1949"). As per provisions of law, One-half of the members of
the Standing Committee shall retire every succeeding year. It is
contended that one year after their nomination to the Standing
Committee, One-half of the members stood retired in accordance
with provisions of Section 20(3) by drawing lots on 31.01.2015.
Thereafter fresh 8 members came to be appointed by nomination
on 12.02.2015. During the subsequent year, on 01.02.2016, One-
half of the members appointed on 15.02.2014 in the first meeting
after General elections, stood retired. The process of appointment
of members, in lieu of 8 retired members, went on and in the
meeting held on 20.07.2016, eight members came to be appointed
as members of the Standing Committee in view of Section 20(5) of
the Act of 1949.
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3 The petitioners are objecting to the proceedings of the
said meeting and are also questioning appointment of eight
members on the Standing Committee. Petitioners are praying to
quash proceedings of the meeting dated 20.07.2016, nominating
respondents no.4 to 11 as members of the Standing Committee.
Petitioners are also praying for issuance of directions to
Respondent No.3 to accept names suggested by petitioners no.2
and 3 on behalf of duly recognized groups/aghadi. Petitioners are
further seeking writ of mandamus or direction to Respondent No.3
to prepare fresh tally of proportionate representation with regard to
relative strength of political parties/ aghadis with reference to
authorized designation received from Group Leaders i.e. petitioners
no.2 and 3, strictly in accordance with Section 31A of the Act of
1949, and to take further steps for constituting Standing
Committee of Respondent No.2-Corporation.
4 Petitioners contend that Respondent No.3 has
prepared incorrect tally of proportionate representation to various
political parties in contravention of provisions of Section 31A of the
Act of 1949. It is contended that out of 68 councillors of the
Municipal Corporation, councillors belonging to Nationalist
Congress Party and other members have formed Nationalist
Congress Party- aghadi consisting of 21 members. Whereas, Indian
National Congress has formed aghadi consisting of 11 members.
Shiv Sena and certain independent members have formed Shiv
Sena va aghadi consisting of 19 members. Strength of members of
the BJP in the Corporation is 9, whereas, there are 4
independents. The aghadis are formed in accordance with Section
31A of the Act of 1949 and same are post-poll aghadis. Petitioners
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contend that Respondent No.3 has incorrectly calculated strength
of the parties and has allotted lesser representation in favour of
Nationalist Congress Party va Apaksha Aghadi and Indian National
Congress, whereas, excess representation has been given to Shiv
Sena Va Apaksha Vikas Aghadi. According to the petitioners, the
Nationalist Congress Party aghadi is entitled for representation of 5
councillors, Indian National Congress and its allies are entitled to
get 3 seats, whereas, Shiv Sena Aghadi should have got 5 seats,
BJP-2 and MNS-1. Respondent No.3 has erroneously calculated
the representation to political aghadis whereby representation
provided to Nationalist Congress Party aghadi out of 8 seats to be
filled in for Standing Committee is arrived at 3, whereas
representation provided to Indian National Congress Aghadi is 1,
Shiv Sena -1 and 3 seats are to be filled in as per the decision of
the General body. It is contended that the factor, that has been
calculated for the purposes of representation, is incorrect, which
has affected the Nationalist Congress Party and Indian National
Congress aghadis on the Standing Committee. Petitioners contend
that petitioner no.2 is group leader of the Nationalist Congress
Party aghadi and names suggested by him ought to have been
accepted. It is further contended that the Corporation has
recognized Sandip Kotkar as leader of the Indian National
Congress Party and since there was no nomination received from
him, representative of the Indian National Congress aghadi is
selected from amongst the general body. It is contended that in
fact Sandip Kotkar is not representative of the Indian National
Congress aghadi, whereas, Sandip Baraskar and Suvarna Sandip
Kotkar were the group leaders of Indian National Congress aghadi.
It is contended that the elections of the members from amongst the
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General Body of the Corporation is not within contemplation of
Section 31A of the Act and as such, election of three members as
well as representation of the Indian National Congress Party from
amongst General Body, is illegal.
5 An affidavit-in-reply has been presented on behalf of
Respondents No.2 and 3 by the In-Charge Municipal Secretary of
the Municipal Corporation Ahmednagar. It is stated that so far as
strength of the Indian National Congress aghadi is concerned, one
of its members Sow Dighe passed away in the month of December
2014 and ceased to be member of the Standing Committee. One
Shri Borkar was disqualified in June 2015 as a result of rejection
of his caste verification claim, whereas Smt.Anita Bhosle was also
disqualified on the ground of rejection of her caste verification
claim in the month of June 2016. The strength of Shahar Vikas
aghadi thus came to be reduced to 19. It is contended that bye
elections were held for the aforesaid seats, whereas, no
communication has been received from the Divisional
Commissioner's office in respect of notification of elected members
for the aforesaid seats. It is, thus, contended that due to change in
the composition of aghadi, i.e. reduction in its numerical strength,
it has affected their representation on the Standing Committee,
which has been correctly calculated by the Municipal Corporation.
It is further contended that so far as communication in respect of
change of leadership of Indian National Congress Party and
nomination of Sampat Baraskar and Smt.Suvarna Kotkar as
leaders, though were received, however, since it is revealed that
they are not the registered group leaders, the General Body did not
accept their recommendations. So far as Indian National Congress
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is concerned, there was no communication received from the
recognized leader of the Congress Party and as such, the post was
filled in by the Corporation as per the proposal of the leader of
opposition in the General body. It is contended that the General
Body, instead of keeping three seats of the Congress Party vacant,
nominated three members, as proposed by the leader of opposition.
It is contended that there is no illegality in nominating three
members.
6 Respondent No.5 has tendered affidavit-in-reply
opposing the contentions raised by petitioners. It is contended
that since the Shahar Vikas aghadi, which is a registered aghadi,
is not party to the petition, contention of petitioners that petitioner
no.2 is the leader of the party, cannot be accepted. It is further
contended that all the members of the registered aghadi have also
not been impleaded as party to the petition and in the absence of
all the members before the Court, the contention of petitioners that
petitioner no.2 is the leader of the aghadi and that the leader, who
was appointed earlier is no more a leader, cannot be accepted.
Similar is the case in respect of Indian National Congress aghadi.
The contention of the petitioners that there is change in the
leadership has also no substance. One Shri Samad Khan was
recognized as registered leader of aghadi and there is no change in
the record about the same. The contention of petitioners that
petitioner no.2 is authorised by the group leader Smt.Suvarna
Kotkar to nominate the members on behalf of the aghadi is also
without any basis. It is contended that since there was change in
the representation of Nationalist Congress Party aghadi on account
of disqualification of two councillors and death of one of the
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councillors, there is bound to be change in the representation,
which has not been stated in the petition. It is contended that
petitioners raised a political question as to who is the leader of the
aghadi and such political question need not be answered by this
Court.
7 An affidavit in reply has been presented on behalf of
Respondent No.2 opposing the petition with similar contentions.
8 Section 31A of the Maharashtra Municipal
Corporations Act, 1949, provides for Appointment by nomination
committees to be proportional representation. Section 31A reads
thus:
31A. Appointment by nomination committees to be by
proportional representation.
(1) Notwithstanding anything contained in
this Act or the rules or bye-laws made
thereunder, in the case of the following
Committees, except where it is provided by
this Act, that the appointment of a
Councillor to any Committee shall be by
virtue of his holding any office,
appointment of Councillors to these
Committees, whether in regular or casual
vacancies, shall be made by the
Corporation by nominating Councillors in
accordance with the provisions of sub-
section (2) :-
(a) Standing Committee;
(b) Transport Committee;
(c) Any special committee
appointed under section 30;
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(d) Any ad hoc Committee
appointed under section 31.
(2) In nominating the Councillors on the
Committee, the Corporation shall take into
account the relative strength of the
recognised parties or registered parties or
groups and nominate members, as nearly
as may be, in proportion to the strength of
such parties or groups in the Corporation,
after consulting the Leader of the House,
the Leader of Opposition and the leader of
each such party or group;
(Provided that, the relative strength of
the recognized parties or registered parties
or groups or aghadi or front shall be
calculated by first dividing the total number
of Councillors by the total strength of
members of the Committee. The number of
Councillors of the recognized parties or
registered parties or groups or aghadi or
front shall be further divided by the
quotient of this division. The figures so
arrived at shall be the relative strength of
the respective recognized parties or
registered parties or groups or aghadi or
front. The seats shall be allotted to the
recognized parties or registered parties or
groups or aghadi or front by first
considering the whole number of their
respective relative strength so ascertained.
After allotting the seats in this manner, if
one or more seats remain to be allotted, the
same shall be allotted one each to the
recognized parties or registered parties or
groups or aghadi or front in the descending
order of the fraction number in the
respective relative strength starting from
the highest fraction number in the relative
strength, till all the seats are allotted]:
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Provided further that, for the purpose
of deciding the relative strength of the
recognised parties or registered parties or
groups under this Act, the recognised
parties or registered parties or groups, or
elected Councillors not belonging to any
such party or group may, notwithstanding
anything contained in the Maharashtra
Local Authority Members' Disqualification
Act, 1986, within a period of one month
from the date of notification of election
results, form the aghadi or front and, on its
registration, the provisions of the said Act
shall apply to the members of such aghadi
or front, as if it is a registered pre-poll
aghadi or front.
(3) If any question arises as regards the
number of Councillors to be nominated on
behalf of such party or groups, the decision
of the Corporation shall be final.]
9 The provision has been incorporated by virtue of
Maharashtra Ordinance of II of 2007. The Statement of Objects
records that the provision has been made to ensure adequate
representation to recognized parties and groups. Paragraph 3 of
the Statement of Object reads thus:
"To ensure that all the recognized parties
and groups in the Corporation are
adequately represented in the Committees
constituted under the Corporations Acts,
the Government considers it expedient to
amend these Acts to provide for the
nomination of members of the Committees
in proportion to the strength of the
political parties or groups in the
Corporation."
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10 It is, thus, clear that procedure prescribed under
Section 31A of the Act for appointing the members on the Standing
Committee is by way of nomination and while nominating members
as nearly as may be, in proportionate to the strength of such
parties or groups in the Corporation, after consulting the Leader of
the House, Leader of the Opposition and the leader of each such
party or group shall be considered. The Section also envisages
that such aghadi or group is considered to be a post-poll aghadi
distinct from pre-poll aghadi or front after it comes into existence
within a period of one month from the date of notification of the
election results. The purpose of formation of post-poll aghadi is to
ensure proportionate representation to the groups or the members
in a uniform manner. The Standing Committee is expected to be a
microcosm of the House. The law ensures representation to all the
parties and groups in a democratic manner.
11 The procedure, to be followed while nominating the
members on various Committees including Standing Committee of
the Municipal Corporation, has been prescribed under the
Government Circular dated 06.07.2010. Para 2 of the Circular
reads thus:
2) In view of making more transparent
the procedure of sending names for
nominating members on the standing
Committee and other Committees of the
Municipal Corporation in this fashion, the
issue of giving guidelines thereon was under
consideration of the Government.
Circular
As regards the procedure to be followed
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while nominating members on the Standing
Committee or other Committees of the
Municipal Corporation, guidelines are
issued thereon as follows :
1] While sending names of the Municipal
Members for appointing them by
nomination on the Standing Committee or
other Committees through (by) Leader of
opposition or Group Leader on the basis of
Comparative strength, the same should be
put in a closed envelope and handed over to
the Mayor at the time of the meeting. if the
said names are to be handed over to the
Mayor in a closed envelope before the day of
the meeting, then a copy of the said letter in
a closed envelope only should be given to
the Commissioner as well.
2] In order to satisfy the persons present
that at the time of the meeting, the said
closed envelopes are in the original state
itself and that the same have not been
opened earlier, the closed envelopes should
be shown to the meeting.
3] The said closed envelopes should be
placed on the table and the Mayor should
open the same serially in front of all and
after every envelope is opened, the names
therein should be got read over in the
meeting by any other person present for the
meeting.
4] As regards the names of nominated
Municipal members read over in the
meeting, if the Group leader from whom the
said names have been received has no
objection, then further action in the
direction of selection by nomination should
be taken.
5] If the concerned have objection in this
regard, then the another envelope given to
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the Commissioner should be opened and it
should be confirmed that the names therein
and the names in the envelope with the
Mayor are same and if it is confirmed, then
further action in the direction of Selection
should be taken. However, if the names are
not same, then the names in the envelope
given earlier should be treated as cancelled
and the names of Municipal members to be
nominated afresh should be taken in
writing from the Leader of Opposition or
Group Leader with their signature and on
that basis, further action should be taken.
6] Video shooting of the said entire
proceeding should be made.
By order and in the name of the
Governor of Maharashtra.
12 In the matter of Sanjay Deoram Bhoir Vs. Divisional
Commissioner, 2012 (6) MhLJ 158, while interpreting the
provisions, the Division Bench of this Court has observed:
"As is apparent, the provision is enacted
to provide for the proportion in which
members from various recognized parties
or groups should be nominated on the
Committees mentioned therein. The
main feature of the provision is that the
nomination should be in proportion to
the strength of said parties or groups in
the said Corporation. Not only parties or
groups, but the provision takes into
account the political reality of recognized
and registered parties and groups getting
together and forming an Association or an
Aghadi after the polls. The second
proviso provides that a post-pol
Association or Aghadi may be formed by
recognized parties or registered parties or
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groups within one month from the date of
the notification of the result
notwithstanding the provisions of the
Maharashtra Local Authority Members
Disqualification Act, 1986. The proviso
provides that from the date of formation
of the front or registration, the provisions
of that Act will apply to the members of
such Aghadi or front which is invariably
formed after the poll, as if it is pre-poll
Aghadi or front. Strictly speaking, the
applicability of the provisions of the
Disqualification Act, 1986 have no
bearing on the formation of Committees
contemplated by Section 31A of the BPMC
Act. "
In paragraph 7 the Division Bench has observed thus:
"7 It is common ground that under sub-
section (2), the relative strength of the
recognized parties or registered parties or
groups must be taken into account for
nominating members in proportion to the
strength of such parties or groups in the
Corporation. The second proviso enables the
recognized parties or registered parties or
groups and even independent councillors to
form an Aghadi or front within a period of one
month from the date of notification of the
results. This formation of an Aghadi may be
done notwithstanding anything contained in
the Disqualification Act 1986 in view of the non
obstante clause therein. The last part of the
proviso provides that this post-poll Aghadi
which is formed shall be treated as a pre-poll
Aghadi or Front upon its registration and
further that the provisions of the
Disqualification Act 1986 shall apply to the
members of such Aghadi or front. We may
observe at this stage that though the
Disqualification Act, 1986 is made applicable to
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the members of the post-poll Aghadi, as if it is
registered as pre-poll Aghadi, it does not appear
that the provisions of the Disqualification Act
have any application to the act of nomination of
councilors on the committees or functioning of
the committees."
13 The arguments advanced by the petitioners in respect
of drawing the relative strength of the parties, is concerned, we do
not find any error prima facie, in computing relative strength of the
political parties and mathematical calculation relating to drawing
of a factor. However, the provisions of law do not contemplate
nomination of members from the General Body. The
representation has to be strictly in accordance with section 31A of
the Act. The prescription of seats from amongst General Body is
not contemplated in section 31A of the Act. The first proviso to
sub-section (2) of section 31A provides that the relative strength of
the recognized parties or registered parties, or groups or fronts
shall be calculated by first dividing the total number of councilors
by the total strength of the members of the Committee. The
number of councillors of the recognized parties or registered
parties or groups or aghadi or front shall be further divided by the
quotient of this division. The figure so arrived at shall be the
relative strength of the respective recognized parties or registered
parties or groups or aghadi or front. The seats shall be allotted to
the recognized parties or registered parties or groups or aghadi or
front by first considering the whole number of their respective
relative strength so ascertained. After allotting the seats in this
manner, if one or more seats remain vacant to be allotted, the
same shall be allotted one each to the recognized parties or
registered parties or groups or aghadi or front in the descending
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order of the fraction number in the respective relative strength
starting from the highest fraction number in the relative strength,
till all the seats are allotted. This procedure provided under the
first proviso has not been followed. The allotment of three seats for
the decision of the general body is, thus, erroneous.
14 In the matter of Shahin Anjum Mehboob Khan Vs.
Divisional Commissioner, Amravati, 2016 (5) Mh.L.J. 895, the
challenge was in respect of computation of representation on the
Standing Committee to the recognized parties or aghadis which,
according to the petitioner therein, was in violation of proviso to
sub-section (2) of section 31A of the Act. While dealing with the
issue the Division Bench in paragraph no. 32 of the judgment has
observed thus :
"32 In first proviso under section 31-A(2) of
the Act, 1949, it is very clear that the seats are
to be allotted to such parties initially by
considering the whole number appearing in
their relative strength only. If after completing
this exercise seats are still remaining, the
balance seats are to be allotted one each to
such parties in the descending order of the
fraction number in their respective relative
strength. Thus the value of fraction number
alone is to be utilized in descending order and
while doing so, only fraction number is to be
looked into. The provision does not say tht the
balance seats left are to be allotted to
"remaining" parties i.e. to the parties who
could not get representation in first round as
they did not have whole or full number.
Similarly, the fraction cannot be associated
with full number to determine its value
because that would defeat the requirement of
arranging such fraction numbers in
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descending order.
15 In the instant matter, after allotment of seats to the
political parties and aghadis, it was noticed that certain seats are
remained to be allotted and, same ought to have been allotted in
consonance with the proviso to sub-section (2) of section 31A of the
Act of 1949. The nomination of the councillors from the General
Body is not within contemplation of the provisions of law. As has
been rightly contended by the petitioners, the effect of observance
of erroneous procedure by the respondents, is that the political
party i.e. Shiv Sena and aghadi has received excessive
representation, whereas representation of the other aghadis i.e.
Nationalist Congress party and Indian National Congress is
reduced. The decision of the Corporation in nominating members
on the Standing Committee from amongst the General Body, at the
instance of Leader of Opposition, is not within contemplation of law
and, thus, cannot be approved. In this context, reference can be
made to a judgment delivered by the Division Bench of this Court
in the matter of Kiran Ramchandra Suryavanshi Vs. State of
Maharashtra & others, 2013 (2) MhLJ 444. In the reported
matter, a complaint was made to the Court in respect of the
process adopted by the Corporation in respect of making
nominations of the members of the Standing Committee.
Overriding the recommendations of the leaders of the aghadi, in
the reported judgment, at the instance of members, selection
have been made by resorting to election, which the Division Bench
of this Court has ruled out to be contrary to the spirit of sub-
section (2) of section 31A of the Act and impermissible in law. In
paragraph nos. 20 and 21 of the judgment, the Court has observed
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thus :
"20 Reverting back to section 31-A, on a
bare perusal thereof, it leaves to manner of
doubt that the appointment as a member on
the Committees referred to in sub-section (1)
must be "by nomination". The legislature has
advisedly used the expression "nomination" in
contradistinction to the expression "election".
Further, the nomination must be so done as to
give proportionate representation to the
recognised parties or registered parties or
groups, as the case may be. This provision
defines the composition of the Committees of
the Corporation. It envisages that the
Committees must, as far as possible, comprise
of Councillors of parties or groups as per
relative strength in proportion to their
strength in the Corporation. The avowed
purpose of this dispensation is to guarantee
participation of all sections in the House and
democratisation of every decision taken by the
Committees or the policy decisions to be taken
by the Corporation, which are founded on the
opinion of the Standing Committees so
constituted. This provision guarantees that
the Committees are not completely controlled
by a single largest party or the majority party
in the House which will be the inevitable
consequence of appointment by election. The
Committees act as ears and eyes of the
Corporation, which, finally, takes collective
decision by majority. This the dispensation
envisaged by section 31-A, to provide for
checks and balances in the decision making
and execution process in respect of the
activities of the Corporation.
21 What is significant to note is that the
Councillors to be nominated on any of the
Committees referred to in sub-section (1) must
be after consultation with the leader of the
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house, the leader of the opposition and the
leader of each such party or group, as the
case may be. That pre-supposes that only
Councillors as are recommended by the leader
of the house, the leader of opposition or the
leader of each such party or group, as the
case may be, can be considered for
nomination as legitimate representatives of
that party or group. To recommend suitable
Councillors of the party or group, is the
prerogative of the Leader of the Party or
Group. That prerogative is reinforced from the
purport and sweep of the Maharashtra Local
Authorities Members' Disqualification Act,
1986. This is the consultation process
predicated in section 31-A of the Act. Any
other interpretation would be rewriting of this
provision and lead to avoidable absurdity of
permitting any member of the recognised
party or registered party or group to
recommend the names of Councillors of
his/her party or group to be nominated on the
Committees referred to in sub-section (1).
That would lead to multiple candidatures from
the same party or group, which may inevitably
give cause for indulging in unfair practices as
well."
It is further observed by the Division Bench, thus:
".... In law, even the Corporation has no power
to nominate any other Councillor as a
member of the Committee from that party or
group. The proviso merely enables the
Corporation to nominate any other Councillor
who does not belong to that party or group
entitled to send its representative as member
of the Committees, as per its relative strength
in proportion to the strength in the
Corporation. If such a party or group does
not recommend any Councillor, it may,
perhaps, be a different matter. In another
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situation, if the Corporation is opposed to the
nomination of a given Councillor
recommended by the leader of a party or
group and instead intends to nominate some
other Councillor from another party or group,
perhaps, then, resorting to election process
may become inevitable."
16 A reference can also be made to the Full Bench
judgment in the matter of Jayram Tolaji Shinde and another Vs.
Secretary, Urban Development Department, Mumbai and
others, 2010(3) Mh.L.J. 465. The question before the Full Bench
was as to whether, in the light of Section 31A(2) of the Bombay
Provincial Muncipal Corporations Act, a party, which is entitled to
a quota, can nominate to the committee member who does not
belong to it. While analyzing the provisions of Section 31A, the
majority has observed in paragraph no. 16 of the judgment thus :
and 5. A proviso, as is well known may serve
different purposes;
(i) qualifying or excepting certain
provisions from the main
enactment;
(ii) it may entirely change the very
concept or the intendment of the
enactment by insisting on certain
mandatory conditions to be fulfilled
in order to make the enactment
workable;
(iii) it may be so embedded in the Act
itself as to become an integral part
of the enactment and thus acquire
the tenor and colour of the
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substantive enactment itself, and
(iv) it may be used merely to act as an
optional addendum to the
enactment with the sole object of
explaining the real intendment of
the statutory provision.
(See S. Sundaram Pillai vs. V.R.
Pattabiraman (1985) 1 SCC 591)
The first proviso as earlier construed
confers power on the Corporation to nominate
members from parties or groups not already
represented which will also include
independents. If this is considered, then after
the parties, groups, fronts or aghadies get their
representation based on the quotient the
members belonging to recognized party or group
or Aghadi or front or independents not already
represented and irrespective of the fact whether
they have the necessary quotient, it is open to
the Corporation to nominate from such
members. In this exercise there is no
consultation. Such a situation will only arise in
the event of a vacancy or vacancies after the
registered parties, fronts or groups nominate
their members. The question then is how are
such vacant seats to be filled in. As rightly
pointed out by Mr. Dhakephalkar, if after getting
representation based on their relative strength
in the Corporation, if the balance seats are also
to be filled in from the same parties already
represented, that would defeat the very object of
the sub-section itself. In this manner a party or
group or aghadi can corner the balance seats
even if they are already represented based on
their relative strength in the Corporation to the
exclusion of smaller groups or independents. In
the interpretation now given though they cannot
nominate their own member, they however, will
still have a say in nomination but that would be
by nominating from independents or parties or
aghadi not already represented. To that extent,
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in our opinion, the view taken in Gite's case
namely that the balance seats can be filled in by
nomination from amongst the members, groups
or fronts or independents or parties or aghadi
not already represented will have to be accepted.
The expression "such" in the first proviso attains
importance. If this was not the intention of the
legislature then the expression "such" would not
have been used. In the absence of expression
"such", the seats could have been filled in from
any of the parties or groups, fronts or aghadies
including those already represented. By use of
the expression "such", which is also there in
sub-section (2) the legislative intent seems to
mean that once parties are represented based
on their relative strength then the remainder of
the vacant seats be filled from amongst those
who are not represented. The vacancies in such
situation do arise, because though all such
groups or independents together may have the
necessary quotient, yet individually they can not
get representation because the independents,
party, group, front or aghadi do not by
themselves have the necessary quotient. The
vacancy arises because of such a situation. In
our opinion, in that context we are in agreement
with the view taken in Gite's case. Once there is
power in the House to nominate any Councillor,
it is because, the Legislature has contemplated
such a situation. The proviso in the instant
case, considering the law declared in Section 24
Sunderam Pillai (supra) becomes an integral
part of the sub-section itself. So read the
proviso confer power on the corporation to make
nomination from parties, or groups, fronts or
aghadies not already represented and to the
extent give a vested right to such other members
to be considered for nomination. Question No. 4
answered accordingly."
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17 In the instant matter, in violation of mandate of proviso
to sub-section (2) of section 31A, three seats have been carved out
and members have been nominated to the Standing Committee
from amongst the General Body, which is violative of aforesaid
provisions. The Corporation ought to have considered the fraction
number and ought to have allotted remaining seats in the
descending order beginning from the highest fraction in favour of
recognized party or group. The computation of representation and
allotment of three seats to be nominated by the General Body is,
thus, illegal.
18 The petitioners have raised a serious dispute as
regards entitlement of Mr.Samad Wahab Khan to nominate three
members belonging to Nationalist Congress party and Apaksh
aghadi. It is contended that said Mr.Samad Khan could not attend
the meeting personally since he was in the custody, whereas
authorisation given by him in favour of Shri Borate for making
representation cannot be accepted. It is further contended that
the Minutes of the meeting do not show that such envelope was
tendered by Shri Borate and same was opened. Petitioner no. 2
claims to be leader of Nationalist Congress party and Apaksh
aghadi, which contention has been seriously disputed by
respondents. The question as to whether petitioner no. 2 is the
leader of Nationalist Congress Party aghadi or Mr. Samad Wahab
Khan was the leader. is a question which is of a political nature
and, according to the respondents, need not be gone into in the
instant petition. The objection raised by respondents that in the
absence of the aghadi being party to the petition and other
members of Nationalist Congress party and apaksh aghadi, the
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petition raising such dispute need not be entertained. It is a fact
that Nationalist Congress party and Apaksh aghadi, which is a
registered aghadi is not party to the petition nor all the members
are impleaded as party to the petition. Thus, the disputed
question raised need not be gone into. The contention of the
petitioners as regards petitioner no. 2 being leader of the aghadi is
also objected to on the ground that it has not been demonstrated
as to whether petitioner no. 2 has been elected as leader of the
aghadi in a democratic manner; and as to whether the procedure
prescribed for electing leader of aghadi and its intimation, has
been observed. Relying on the judgment of the Hon'ble Supreme
Court in the matter of Sunil Haribhau Kale vs. Avinash Gulabrao
Mardikar and others, 2015(2) All MR 926, it is contended that
the definition of the term "leader" very clearly shows that where a
municipal party is a aghadi its leader has to be chosen by the
aghadi or front. Necessarily, any change in the leader of the
municipal party is to be effected by the aghadi and not by the
outsider. Once the Rules provide for the election of the group
leader, it has to be done in that manner only and not in any other
manner, even when there is change of the leader. The change of
leader has to be in the same democratic process of induction, in
the absence of any other method prescribed under the Rules
concerned. It is contended that since it has not been
demonstrated that petitioner no. 2 has been installed as a leader in
democratic manner, the contention of petitioner no. 2 does not
deserve acceptance. It is also contended that the political
questions as to whether petitioner no. 2 is the leader of aghadi,
need not be gone into by this Court in exercise of extra ordinary
jurisdiction.
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19 In the matter of Dattabhau s/o Annasaheb Pathrikar
Vs. State of Maharashtra & others, 2007(3) MhLJ 76, relying on
the judgment in the matter of Vishnu Shivram Mehere Vs. City
of Akola Municipal Corporation & others, 2003 (5) MhLJ 522,
it is observed in paragraphs no.13 and 14, as under:
"13 Reliance is placed on the judgment of this
Court in the matter of (I) Sunil Ramdas Kotkar
Vs. State of Maharashtra, 2005 (4) Mh.L.J. 375
= 2005 (3) ALL MR 143, (ii) Vishnu Shivram
Mehere Vs. City of Akola Municipal Corporation
2003 (5) Mh.L.J. 522 = 2004 (3) ALL MR 151
and Abdul Rashid s/o Abdul Sattar vs. Vikas
Jain, 2003 (2) Mh.L.J. 902. In Vishnu Mehere's
case (supra), the question that was posed
before the Court was whether on refusal by the
party having greatest numerical strength in the
Corporation to shoulder the responsibility of
the leader of opposition, whether the party
having next higher numerical strength in the
house could be permitted to set up their
candidate for the post of Leader of Opposition.
This Court came to the conclusion that there
was nothing wrong in recognizing a Corporator
belonging to a party having next higher
numerical strength as a Leader of Opposition in
the circumstances where the party having
greatest numerical strength in the house
refuses to shoulder the responsibility. The
Court while determining the issue has dealt
with the political question doctrine. In para 32
of the judgment, the Court has observed thus:
"32 As already noticed hereinabove, it is
now well settled that the Courts are
expected to decline jurisdiction over all
"political questions". One of the
important corollary of Court's refusal to
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exercise judicial powers is the doctrine of
"political questions". In exercise of its
powers of its judicial review; time and
again it has been pointed out by the
various courts that certain powers are
vested in the legislative of executive
departments of the Government to be
exercised in a purely discretionary
manner, and that whether they have been
constitutionally exercised or not is a
"political question" which the Court is not
expected to undertake to decide. (See
Luther Vs. Borden, 7 Hardward 1: 12 Ed.
581)(1849).
33 The political question doctrine
limits the exercise, not the existence, of
judicial power, thus even though a
dispute may constitutionally be subject to
judicial power, if a political question is
present, a Court should decline to reach
the merits....."
14 In the instant case, applying the political
question doctrine the Courts exercising the writ
jurisdiction would be slow in entertaining the
questions having the political overtones.
Although the Courts are not precluded from
determining the questions where neither of the
conflicting political branches has clear and
unequivocal title and it is or may be possible to
establish an effective judicial settlement. In
view of the facts presented in the instant case
before us, we do not feel it appropriate to enter
into the political questions presented for
determination in the petition."
20 Similar is the answer to the arguments advanced on
behalf of petitioners that there is change in the leadership of
Indian National Congress Party aghadi and as such, names
suggested by Mrs.Suvarna Kotkar ought to have been accepted.
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The decision as to who is the leader of the aghadi is a question
having political overtones, since the question does not fall for
consideration in the instant petition for determining the issue, the
contention, in that regard, does not deserve to be dealt with.
21 An objection is also raised on the ground that there is
an alternate remedy as provided under Section 451 of the Act and
as such, petition need not be entertained. The objection is devoid
of substance. Considering the nature of controversy involved in
the matter, the objection is required to be recorded only for the
purposes of its rejection.
22 In view of the discussion as above, it does appear that
the tally of representation of National Congress Party is 4.94,
whereas, "4" seats have been allotted. So also, Indian National
Congress Aghadi has the strength of 2.58, whereas, representation
given is "2". Shiv Sena has the strength of 4.47, whereas,
representation given is "4". While allotting seats, three seats were
prescribed for the decision of the General Body, which is not within
contemplation of law. The appointments made from amongst the
General Body, at the instance of leader of opposition, is clearly
violative of mandate of law and as such, such of those
appointments made from amongst the General Body, deserve to
be set aside. So far as representation on behalf of the Nationalist
Congress Party is concerned, since name of its representative was
not nominated by the leader of the Nationalist Congress Party
aghadi, the nomination has been made from amongst the General
body. As has been observed in the matter of Kiran (supra), such
course would be permissible. We, therefore, do not find it
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appropriate to set aside the nomination of Congress aghadi. The
disputed question raised in the petition as regards leader of
Nationalist Congress Party aghadi and Indian National Congress
aghadi need not be entertained since it has political overtones and
in view of the deficiencies pointed out in the judgment, the
contentions and objections raised in that behalf need not be gone
into.
23 In the result, writ petition is partly allowed. The
election of the nominated members on the Standing Committee,
nominated from amongst the General Body, namely Deelip
Nanabhau Satpute, Sow.Sunita Bhagwan Fulsundar and Manoj
Laxman Dulam - Respondents No.6, 7 and 8, is quashed and set
aside.
24 Rule is accordingly made absolute to the extent as
specified above. There shall be no order as to costs.
25 Learned Counsel appearing for Respondents seeks stay
of this judgment and order passed by this Court today so as to
avail of further remedies. However, for the reasons recorded in the
judgment, we are not inclined to accept the request. Request made
stands rejected.
(SANGITRAO S. PATIL) (R.M.BORDE)
JUDGE JUDGE
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