Ajay Boraste vs The State Of Maharashtra Through ...
2021 Latest Caselaw 1832 Bom

           Digitally
           signed by
           Prashant
Prashant   V. Rane
V. Rane    Date:
           2021.01.29
           21:09:33                                           3-wpst4385-20.docx
           +0530



                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                    CIVIL APPELLATE JURISDICTION

                                  WRIT PETITION (ST) NO.4385 OF 2020

           Ajay Boraste                          )
           Age 50 years, Councilor-Shivsena,     )
           Nashik Municipal Corporation,         )
           having his office at Nashik Municipal )
           Corporation, Sharanpur Road, Nashik.).. Petitioner

                            Vs.

           1.The State of Maharashtra through             )
           Principal Secretary, Urban                     )
           Development Department,                        )
           Mantralaya, Mumbai.                            )

           2. The Divisional Commissioner,                )
           Nashik Division, having his office             )
           at Administrative Building,                    )
           Nashik-Pune Road, Nashik.                      )

           3. The Commissioner,                  )
           Nashik Municipal Corporation          )
           having his office at Nashik Municipal )
           Corporation, Shranpur Road,           )
           Nashik.                               )

           4. Municipal Secretary,               )
           Nashik Municipal Corporation          )
           having his office at Nashik Municipal )
           Corporation, Shranpur Road, Nashik )

           5. Jagdish Chintaman Patil,        )
           Group Leader, BJP Party, having    )
           his office at Nashik Municipal     )
           Corporation Sharanpur Road, Nashik.).. Respondents


                                                    ---


           Prashant Rane                        1
                                                      3-wpst4385-20.docx

Mr.Anil A.Anturkar, Senior Advocate with Mr.S.J.Deshmukh and
Mr.Pravin Gole, for the Petitioner.

Mr.A.I.Patel, Additional Govt.Pleader, for the State.

Mr.M.M.Pable, AGP for the State.

Mr.M.L.Patil, for Respondent no.3.

Mr.Sandeep V. Marne, for Respondent no.4.

Mr.Pradeep Thorat with Mr.Aniesh S.Jadhav with Vaibhav Kamble i/b.
Jay Bhatia, for Respondent no.5

                                         ---

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

DATE :- JANUARY 28, 2021

JUDGMENT: (Per G.S.Kulkarni, J.)

1. Rule returnable forthwith. Respondents waive service. By

consent of the parties and at their request taken up for final hearing.

2. The petitioner who is an elected councillor of the Nashik

Municipal Corporation (for short 'the NMC') and who belongs to a

political party by name Shiv-Sena, is before the Court assailing a

resolution of the General Body of the NMC dated 24 February 2020

[Resolution no.196] (for short 'the said resolution'), to the extent that

there is a shortfall to nominate one Councillor belonging to the Shiv-

Sena on the Standing Committee, of the municipal corporation and

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instead a nomination of one Councillor from the Bharatiya Janata

Party has been made.

3. Briefly, the case of the petitioner is that the General Ward

elections of the NMC for total 122 seats were held in the year 2017. In

such election, 66 candidates came to be elected belonging to the

Bharatiya Janata Party; 35 candidates were elected from the Shiv-Sena.

The elected candidates (councillors) were registered under the

Maharashtra Local Authorities Members Disqualification Rules,1987

(for short 'the 1987 Rules'). The petitioner contends that once a group

of elected councillors is registered under the provisions of the 1987

Rules, they secure the benefit of Section 31-A of the Maharashtra

Municipal Corporation Act,1949 (for short 'the 1949 Act') for

nomination on the standing committee of the municipal corporation.

4. The total number of members of the "Standing Committee"

of the NMC is fixed at 16 as per the provisions of Section 20 of the 1949

Act, which interalia provides that one half members of the Standing

Committee would retire by rotation every year. Section 31-A provides

for a method and mode of appointment of the Councillors on the

standing committee, by nomination, on the relative strength of each

party, aghadi or group.

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5. The petitioner contends that there were 66 councillors

belonging to the Bharatiya Janata Party, registered under the 1987

Rules. On the basis of such numbers, the said party was entitled to have

9 councillors on the 16 member standing committee, till the year 2019-

20, and the Shiv-Sena on the basis of their 35 elected councillors were

entitled for 4 councillors on the standing committee. However, one of

the elected councillor belonging to Bharatiya Janata Party by name

Smt.Saroj Ahire who contested election from Ward no.22-A resigned, to

contest elections of the Maharashtra Legislative Assembly. One more

elected councillor of the Bharatiya Janata Party Smt.Shantabai Hire,

who had contested election from Ward No.4-A expired on 29 December

2019. Thus, there was a reduction of two elected councillors belonging

to Bharatiya Janata Party, thereby making the total number of elected

councillors of Bharatiya Janata Party at 64. Subsequently, there was a

by-election in respect of one of the vacant wards (Ward no.22-A) in

which a candidate belonging to the NCP, was elected. There was no by-

election in respect of the other ward in which a vacancy had arisen, and

as noted above.

6. The petitioner has contended that the State Government

upon a representation of the group leader of the Shiv-Sena, issued a

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letter dated 20 February 2020 to the Mayor and the Commissioner of

the NMC to abide by the provisions of Section 31-A of the 1949 Act

while nominating members on the Standing Committee. The group

leader of the petitioner's political party/Shiv-Sena by his letter dated 24

February 2020 brought to the notice of the Divisional Commissioner,

information about the reduction of the strength of Bharatiya Janata

Party candidates. The Divisional Commissioner replied to the said letter

by his letter of even date, that a report in that regard is called for, from

the group leader of the Bharatiya Janata Party.

7. Thereafter the Municipal Secretary of the NMC on 17

February 2020 issued a notice calling for a General Body meeting of the

NMC, to be held on 24 February 2020 which would take up an agenda

for nomination of 8 members on the Standing Committee, in place of

the retiring members. Such meeting was held as scheduled. In the said

meeting, the petitioner's party-Shiv-Sena nominated three candidates.

However, a resolution was passed by the General Body being

Resolution no.196 as impugned, nominating 4 members of Bharatiya

Janata Party on the Standing Committee and 2 members were

nominated from Shiv-Sena by the General Body.

8. Mr.Anturkar, learned Senior Advocate with Mr.Shrishailya

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Deshmukh, learned Counsel for the petitioner, have tendered a

statement reflecting the party-wise representation on the Standing

Committee in the year 2017, which is immediately after the general

elections, and the position which ought to take place as per law, after

December 2019. It would be relevant to extract the figures in the

statement, which are as under:

"Partywise Representation on Standing Committee Total Number of members of General Body / Standing Committee Strength = Quotient 122 / 16 = 7.62 Position in the year 2017

Sr. Party Total Divided by Relative Representati numbers Quotient strength on on No.

                                                                 Standing
                                                                 Committee











     6.      RPI         1         7.62           0.13           NIL

Position which should occur after December 2019

Sr. Party Total Divided Relative Representation on numbers by strength Standing Committee No.

                                Quotient





                                                  3-wpst4385-20.docx


     1.    BJP        64      7.62       8.39    8

     2.    Shivsena   35      7.62       4.59    5

     3.    Congress 7         7.62       0.91    1

     4.    NCP        8       7.62       1.04    1

     5.    MNS        6       7.62       0.68    1

     6.    RPI        1       7.62       0.13    NIL

                                         Total   16

9. Learned Counsel for the petitioner would contend that as

per the requirement of Section 31-A of the 1949 Act, there is shortfall to

nominate one member from the petitioner's political party namely the

Shiv-Sena. This for the reason that there is a reduction in the total

number of elected candidates belonging to Bharatiya Janata Party which

stood reduced from 66 to 64. It is contended that by applying the

formula for arriving at the correct number of candidates to be

nominated, a fresh quotient of 7.56 would be required to be taken into

consideration which would attribute 4.62 seats in favour of Shiv-sena.

According to the petitioner the following would be the calculation for

deciding party-wise representation on the Standing Committee.

Total number of members of the General Body divided by Standing Committee strength, would determine the quotient, which according to the petitioner would be as under:-

Total number of elected candidates i.e. 122 divided by 16 (total strength of the Standing Committee), which is equal to 7.62

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quotient which would be the standard quotient.

10. According to the petitioner, the new quotient in view of the

reduction in the seats of the Bhartiya Janata Party and considering one

by-election would be 121 (reduced strength of the elected candidates)

divided by 16 (strength of the Standing Committee) which would be

equal to 7.56. The petitioner contends that by applying quotient 7.56,

the position of the representatives of the Bharatiya Janata Party and

Shiv-Sena Councillors on the Standing Committee would be as under:-

Total number of Bharatiya Janata Party candidates (66) divided by quotient (7.56) = 8.46 Councillors, on rounding of 8 Councillors.

Total number of Shiv-Sena Candidates (35) divided by quotient (7.56), is equal to 4.64 and on rounding of it would be 5 Councillors.

11. The petitioner accordingly contends that there is a clear

mis-application of the provisions of Section 31-A of the 1949 Act,

inasmuch as instead of 4 members on the standing committee, the Shiv-

sena is entitled to have a representation of 5 members. Learned Counsel

for the petitioner has submitted that such calculation and the

application of the provisions of Section 31A of the 1949 Act had fell for

consideration of the Division Bench of this Court in Jayram Tolaji

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Shinde Vs. The Secretary, Urban Development Department, Mumbai

(2010(3) Mh.L.J. 465), in which the Court confirmed the view taken by

the another Co-ordinate Bench of this Court in Vasant Nivrutti Gite &

Anr. Vs. Municipal Corporation of City of Nashik & Ors. (2007(4)

Mh.L.J. 871). In Jayram Tolaji Shinde (supra) the Division Bench

explained the decision in Vasant Nivrutti Gite, to hold that while

considering the decimal of 0.5 or more by rounding as one, the

representation will have to be worked out in a manner that anything

less than 0.5 is to be excluded. Anything between less than 1 and 0.5

would first allow representation in the descending order. The

petitioner's contention is that applying the law as laid down in these

decisions, it is clear that nomination of 5 members belonging to the

Shiv-Sena would comply with the requirement of Section 31A, hence

the impugned resolution is illegal to the extent it excludes nomination

of one member belonging to Shiv-Sena.

12. The group leader of Bharatiya Janata Party-respondent no.5

is represented by the learned Counsel Mr.Pradeep Thorat. The State of

Maharashtra and the Divisional Commissioner are represented by the

learned AGP and Mr.M.L.Patil, learned Counsel represents the NMC.

13. Mr.Thorat would submit that the impugned resolution

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passed by the General Body is in consonance with Section 31-A of the

Act. He would although not dispute that there was reduction in the

total strength of the elected candidates belonging to Bharatiya Janata

Party from 66 to 64. Mr.Thorat has made submissions as to how the

Standing Committee would be constituted by the provisions of Sections

20 and 31-A of the 1949 Act, and according to Mr.Thorat the impugned

resolution of the General Body cannot be faulted.

14. The short issue which falls for our consideration is whether

the impugned General Body Resolution would fall foul of Section 31A of

1949 Act to the extent it declines to nominate an additional Councillor

from the petitioner's political party namely the Shiv-Sena.

15. To answer the question, it would be appropriate to note the

provisions of Section 20 which provide for the constitution of the

Standing Committee and the provisions of Section 31A which provide

for 'Appointment by nomination on Committees to be by proportional

representation'. These provisions read thus:

20. Constitution of Standing Committee (1) The Standing Committee shall consist of sixteen councillors.

(2) The Corporation shall at its first meeting after general

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elections appoint [sixteen] persons out of its own body to be members of the Standing Committee.

(3) One-half of the members of the Standing Committee shall retire every succeeding year at noon on the first day of the month in which the first meeting of the Corporation mentioned in sub-section (2) was held:

Provided that all the members of the Standing Committee in office when general elections are held shall retire from office on the election of a new Committee under sub-section(2). (4) The members who shall retire under sub-section (3) one year after their election under sub-section(2) shall be selected by lot at such time previous to the date for retirement specified in sub-section (3) and in such manner as the Chairman of the Standing Committee may determine, and in succeeding years the members who shall retire under this section shall be those who have been longest in office :

Provided that, in the case of a member who has been reappointed, the term of his office for the purposes of this sub- section shall be computed from the date of his reappointment. (5) The Corporation shall at its meeting held in the month preceding the date of retirement specified in sub-section(3) appoint fresh members of the Standing Committee to fill the offices of those who are due to retire on the said date. (6) Any Councillor who ceases to be a member of the Standing Committee shall be eligible for reappointment.

31A.(1) Appointment by nomination on Committees to be by proportional representation.

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 ;
                (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

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members, as nearly as maybe, 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:] 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 group, the decision of the Corporation shall be final.]"

(emphasis supplied)

16. By virtue of Section 20, the Standing Committee of the

NMC would consist of 16 councillors. As per Sub-section (2) of Section

20 the Corporation shall at its first meeting after the general elections

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appoint sixteen persons out of its own body to be members of the

Standing Committee. Sub-section (3) provides that one-half of the

members of the Standing Committee shall retire every succeeding year

at noon on the first day of the month in which the first meeting of the

Corporation mentioned in sub-section (2) was held.

17. As far as the appointment by nomination on the

Committees which includes the nomination to the Standing Committee

is concerned, it would be by proportional representation. From a bare

reading of Section 31A , it is seen that it begins with a non-obstante

clause, so as to provide for an overriding effect of this provision, in

regard to anything contained in the Act, the rules or the bye-laws made

thereunder, except for what is provided under the Act, to provide that

appointment of a Councillor to any Committee shall be by virtue of his

holding any office; appointment of Councillors to these Committees,

whether regularly or to fill up the casual vacancies, to be made by the

Corporation by nominating Councillors in accordance with the

provisions of sub-section (2). Sub-section (2) provides that in

nominating Councillors on the Committees, the Corporation shall take

into account the "relative strength" of the recognised parties or

registered parties or groups or aghadi or front, and nominate members,

as nearly as may be, in proportion to the strength of such parties in the

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Corporation, after consulting the Leader of the House, the Leader of

Opposition and the leader of each such parties or group or aghadis or

front. The method of calculating the relative strength of the recognized

parties or groups or aghadi or front is required to be in the manner as

provided for in the proviso below sub-section (2), which mandates that

it shall be calculated by first dividing the total number of councillors by

the total strength of members of the Committee, as already noted by us.

Thereafter, 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 so determined 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 such 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.

18. It is by such mechanism and method as prescribed in the

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proviso below sub-section (2) the members would be nominated to the

Standing Committee by the Corporation. The interpretation of Sections

31 and 31A fell for consideration of the Division Bench of this Court in

Vasant Nivrutti Gite (supra) case. It was held that the proper

construction of sub-section (2) and provisos below sub-section (2)

would be to first nominate the members to the Standing Committee

from the parties which have necessary quotient based on relative

strength of their membership on the General Body. This interpretation

was followed and approved in the subsequent decision in Jayram Tolaji

Shinde case (supra) as also in Sangram V. State of Maharashtra reported

in 2017 SCC OnLine Bom 8579.

19. In our opinion the mandate of the proviso below sub-

section (2) of Section 31A is quite clear that the nomination of the

members to the Standing Committee amongst the parties necessarily

has to be as per the quotient, which is based on the relative strength of

such a political party's membership on the General Body of the

municipal corporation. The proviso below sub-section (2) sets out a

complete mechanism for arriving at such quotient and the consequent

determination of the respective relative strength which would be

required to be arrived at, in the descending order of the fraction

number, starting from the highest fraction number in the relative

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strength, till all the seats are allotted.

20. We find that by applying the method and the manner of

arriving at such relative strength as prescribed by Sub-section (2) of

Section 31A, it was incumbent on the General Body of the NMC to

consider the quotient of 7.56, which had arisen on account of reduction

of two seats of Bharatiya Janata Party, reducing its total strength from

66 to 64. There is no dispute on such quotient being arrived, which is

on the actual strength of the total number of councillors of each of these

parties on the General Body of the Corporation. At the same time the

total strength of the elected Councillors of Shiv-Sena had remained at

35, however, correspondingly on such change of the quotient, the

relative strength of Shiv-Sena was required to be taken at 4.62, and by

applying the rounding up formula, as accepted by this Court in Jayram

Tolaji Shinde case (supra), and by considering the relative strength in

the descending order of the fraction number, in our opinion, the

General Body ought to have nominated one additional councillor from

the Shiv-Sena on the Standing Committee, so as to make the strength of

the Shiv-Sena councillors on the Standing Committee to be at 5 in

place of 4. The General Body of the NMC, however, accepted

nomination of only 2 councillors of the Shiv-Sena by the impugned

resolution making the strength to 4 instead of 5. For such reason, the

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impugned General Body Resolution to the extent it fails to nominate

one additional member/councillor belonging to the Shiv-Sena on the

Standing Committee of the NMC, would be required to be held to be

illegal, being in breach of the provisions of sub-section (2) of Section

31A of the 1949 Act.

21. As a sequel to the above discussion, the petition is required

to be allowed in terms of prayer clause (a) and (b) which reads thus:

a. that this Hon'ble Court be pleased to issue appropriate writ, order or direction and particularly the Writ of mandamus thereby quash and set aside the resolution of the General Body of Nashik Municipal Corporation dated 24.2.2020 bearing no. 196 to the extent of nominating one extra member of Bhartiya Janata party on the Standing Committee;

b. that this Hon'ble Court be pleased to hold and declare that in view of Jayram Tolaji Shinde v. The Secretary, Urban Development Department, Mumbai, 2010 (3) Mh.L.J. 465 and Sangram v. State of Maharashtra, 2017 SCC OnLine Bom 8579 : (2018) 3 Mah LJ 254 the Shivsena party in Nashik Municipal Corporation is entitled to nominate 5 seats on Standing Committee of Nashik Municipal Corporation for the year 2020-2021.

22. Rule is made absolute in the above terms. No costs.

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