Balchandra Shirsat vs The Mayor, Municipal Corporation ...
2021 Latest Caselaw 6008 Bom

                                                                  WPL-5004. 2020- Jt


        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
          ORDINARY ORIGINAL CIVIL JURISDICTION

                  WRIT PETITION (L) NO. 5004 OF 2020

 Balchandra Shirsat                   }
 K-2/501, Neelyog                     }
 Residency, Gaurishankar              }
 Wadi No.1, Pantnagar,                }
 Ghatkopar (E), Mumbai                }
 400 075                              }      Petitioner

                  Versus

 1. The Mayor,               }
 Municipal Corporation of    }
 Greater Mumbai, Mayor's     }
 Bungalow, Mumbai            }
                             }
 2. Yashwant Jadhav,         }
 Chairman, Standing          }
 Committee, 71/74,           }
 Bilakhadi Chamber,          }
 Saint Mary Road, Mazgaon, }
 Mumbai - 400 010            }
                             }
 3. Sangeeta Sharma,         }
 Municipal Secretary,        }
 Municipal Corporation of    }
 Greater Mumbai, Opp. Azad }
 Maidan, Fort,               }
 Mumbai 400 001              }
                             }
 4. Municipal Corporation    }
 of Greater Mumbai,          }
 a statutory body            }
 incorporated under the      }
 Provisions of the Mumbai    }
 Municipal Act, 1888, having }
 its office at Mahapalika    }
 Marg, Mumbai 400 001        }




                               Page 1 of 8
 J.V.Salunke,PS


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                                                                      WPL-5004. 2020- Jt


 5. The Commissioner,        }
 Municipal Corporation of    }
 Greater Mumbai, having its  }
 office at Mahapalikar Marg, }
 Mumbai 400 001              }
                             }
 6. The State of Maharashtra }
 Through Government          }
 Pleader, High Court, Mumbai }                  Respondents

 Mr.Amogh Singh i/b. Mr.Jeet Gandhi for the
 petitioner.

 Mr.Aspi Chinoy-Senior Advocate with Mr.Joel
 Carlos, Ms.Oorja Dhond, Ms.S.M.Modle i/b.
 Ms.Aruna Savla for respondent nos. 1 and 3.

 Mr. Ravi Kadam-Senior Advocate with Mr.Rajiv
 Chavan-Senior  Advocate   and   Ms.Vandana
 Mahadik i/b. Ms.Aruna Savla for respondent
 no.2.

 Mr.A.Y.Sakhare-SeniorAdvocate      with  Mr.Joel
 Carlos i/b. Ms.Aruna Savla for respondent no.4.

 Mr.Hemant Haryan-AGP for State.


                          CORAM :- DIPANKAR DATTA, CJ &
                                   G. S. KULKARNI, J.

                          Reserved on           :-      MARCH 8, 2021
                          Pronounced on         :-      APRIL 5, 2021

JUDGMENT :- (Per Dipankar Datta, CJ.)

1. The trigger for this writ petition, which involves a short but interesting question of law, seems to us to be a political rift. The question that we are called upon to decide is whether a "nominated councillor" of the Municipal Corporation of

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WPL-5004. 2020- Jt

Greater Mumbai (hereafter "the Corporation", for short), having special knowledge or experience in municipal administration, can be inducted in the Corporation's Standing Committee.

2. Since an interesting question of law is involved, we avoid narrating the facts antecedent to presentation of the writ petition in any great detail. Suffice it to note that the last election for constituting the Corporation was held in 2017 whereupon, the petitioner was nominated by the Corporation to be a "nominated councillor" on March 17, 2020. He was inducted in the Standing Committee on September 25, 2020 and has since been removed from the Standing Committee by an order dated October 21, 2020, issued in furtherance of a resolution of the General Body of the Corporation, which was communicated to him on October 26, 2020.

3. The contention of the petitioner is simple: there is no bar in the Mumbai Municipal Corporation Act, 1888 (hereafter "the Act", for short) for induction of a "nominated councillor" in the Standing Committee and, therefore, the impugned order which has been passed without the authority of law ought to be quashed. Per contra, the stand of the Corporation is that the provisions of law operate as a bar for induction of a "nominated councillor" in the Standing Committee of the Corporation though such "nominated councillor" may be inducted in the other Committees of the Corporation; and that the removal of the petitioner being in accordance with law, the writ petition ought to be dismissed.

J.V.Salunke,PS

WPL-5004. 2020- Jt

4. For the purpose of deciding the question of law noted above, we need to read certain relevant provisions of the Act. The same are as follows:

"3. Definitions of terms In this Act, unless there be something repugnant in the subject or context, -

(c) "Councillor" means a person duly elected as a member of the Corporation; and includes a nominated Councillor who shall not have the right, -

(i) to vote at any meeting of the Corporation and Committee of the Corporation; and

(ii) to get elected as a Mayor of the Corporation or a Chairperson of any of the Committee of the Corporation." "5. Composition of Corporation (1) The Corporation shall consist of, -

(a) .....

(b) five nominated councilors having special knowledge or experience in Municipal Administration to be nominated by the corporation in the prescribed manner: Provided that nothing in this sub-section shall have effect until the expiry of the existing term of the Corporation."

(emphasis supplied)

"42. Constitution of Standing Committee The Standing Committee shall consist of twenty seven councilors."

"43. Members of the Standing Committee when to be appointed (1) The Corporation shall at their first meeting in the month of April after general elections, appoint twenty six persons out of their own body to be members of the Standing Committee.

(2) The Chairman of the Education Committee shall also be a member of the Standing Committee."

"45. Members of Standing Committee to retire by rotation

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WPL-5004. 2020- Jt

(a) One-half of the members of the Standing Committee shall retire at noon on the first day of April every year.

(b) The members who shall retire one year after the Standing committee is constituted under section 43 shall be selected by lot at such time previous to the first day of March immediately preceding and in such manner as the Chairman may determine.

(c) During the succeeding years, the members who shall retire under this section shall be the members who were longest in office:

Provided that, in the case of a member who has been re-appointed for the term of his office for the purposes of this clause shall be computed from the date of his re-appointment.

(d) The term of office of the Chairman of the Education Committee as a member of the Standing committee shall continue so long as he continues as such Chairman."

"46. Appointment of members of Standing Committee to replace those who retire (1) The Corporation shall at their ordinary meeting in the month of March appoint fresh members of the Standing Committee to fill the offices of those previously appointed by them who retire from time to time as aforesaid.

(2) Any councilor who ceases to be a member of the Standing Committee shall be re- eligible."

48. Each Standing Committee to continue in office till a new Committee is appointed The Standing committee in existence on the day for the retirement of councilor shall continue to hold office until such time as a new Standing Committee is appointed under section 43, notwithstanding that the members of the said Committee or some of them may no longer be Councillors."

5. Apart from the aforesaid provisions of the Act, Rule 3 of the Maharashtra Municipal Corporation (Qualifications and Appointments of nominated Councillors) Rules, 2007, as

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amended, has been referred to by Mr. Chinoy, learned senior advocate for the Corporation and hence is quoted below:

"3. Meeting for nomination of Councilors:-

Subject to the provisions of rule 4, the Corporation shall, in its meeting held immediately after the expiry of one month from the date of notification of election results, after general election, nominate five persons to be nominated Councillors."

(emphasis supplied)

6. Having read the aforesaid statutory provisions, there appears to be no express bar for a "nominated councillor" of the Corporation to be inducted in its Standing Committee. Not to speak of an express bar, the definition of 'Councillor' in Section 3(c) of the Act does not advance the claim of the Corporation. Such provision suggests certain limitations imposed upon a "nominated councillor", viz. that a "nominated councillor" shall have no right (i) to vote at any meeting of the Corporation and Committee of the Corporation; and (ii) to get elected as Mayor of the Corporation or as a Chairperson of any of the Committees of the Corporation. If indeed any restriction on the privilege extended to a "nominated councillor" of the nature advanced on behalf of the Corporation were to be accepted, it would amount to re- writing the law and reading into Section 3(c) of the Act and/or the other provisions referred to above a restriction which is clearly absent. A literal reading of all the statutory provisions point towards the legislative intent of not imposing any restriction, which does not appear to us to be absurd or preposterous, and thereby no strained interpretation of the

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Act to fit in with the interpretation on the law placed by the Corporation is required to be made. After all, law is well settled that a Court may iron out the creases in a statutory provision but not change the fabric of which the same is woven.

7. No bar thus having been imposed, we need to also remind ourselves of the principles of statutory interpretation that what has been said by the legislature and what it has not said are both to be borne in mind. In this connection, we may refer to the decision of the Supreme Court in Harbhajan Singh vs. Press Council of India and Ors., reported in (2002) 3 SCC 722, relied upon by Mr. Singh, learned advocate for the petitioner in support of the contention that in the absence of a specific bar created by the statute, a "nominated councillor" is also entitled to be inducted in the Standing Committee of the Corporation. Paragraph 14 of the said decision is instructive, where it has been laid down that when a right to appoint as a member has been conferred by the law, ineligibility entailing prohibition or bar on being appointed to an office should be clearly stated or positively spelled out, in the absence whereof, the same cannot be read into the provisions on the basis of assumed intention of fulfilling the object of the statute.

8. We are not impressed by the contention advanced by Mr. Chinoy that having regard to the time frame of constitution of the Standing Committee pursuant to elections that are conducted, there is no scope for a "nominated councillor" to

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be inducted in the Standing Committee or that in the past, prior to the elections of 2017, there has been no case of a "nominated councillor" being inducted in the Standing Committee. We are also not in agreement with the contention that having regard to the statutory scheme revealed from the provisions of Section 43(1) and Section 5(1)(b) of the Act read with Rule 3 of the said Rules 2007, only the elected councillors and not the subsequently "nominated councillors" can only be inducted in the Standing Committee. If indeed a "nominated councillor" was to be left out of the fray for induction in the Standing Committee, such ineligibility ought to have been clearly stated or positively spelled out, which is not the case here.

9. We are afraid, the contention urged on behalf of the Corporation fails to impress us.

10. The upshot of the above discussion is that the act of removal of the petitioner from the Standing Committee of the Corporation merely on the ground that he is a "nominated councillor" and not an "elected councillor" does not have statutory support and cannot be countenanced in law. Consequently, the impugned order merits and is, accordingly, set aside with the result that the interim order passed on October 23, 2020 by a coordinate bench stands confirmed.

11. The writ petition stands allowed, without any order for costs.

(G. S. KULKARNI, J.) (CHIEF JUSTICE)

J.V.Salunke,PS