Bombay High Court
Deepak Laxmandas Sirwani vs State Of Maharashtra And Anr on 9 June, 2021
Bench: S.J. Kathawalla, Surendra Pandharinath Tavade
wpst 10801 of 2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (ST) NO. 10801 OF 2021
Bhagwan Shankar Bhalerao )
Residing Near Lassi Building, Azad Nagar, )
Ulhasnagar ) ... Petitioner
Versus
1. State of Maharashtra )
Through its Under Secretary, )
Urban Development Department, )
Government of Maharashtra, )
Mantralaya, Mumbai )
2. The Divisional Commissioner, )
Divisional Commissioner Ofce, )
Konkan Division, Konkan Bhavan, )
Belapur, Navi Mumbai. )
3. The Collector, )
Ofce of Collectorate, )
Thane. )
4. Ulhasnagar Municipal Corporation, )
Through its Commissioner, )
Having their ofce at Ulhasnagar, )
Municipal Corporation Ofce, )
Ulhasnagar - 3, District - Thane. )
5. Ulhasnagar Municipal Corporation, )
Through its Secretary, )
Having their ofce at Ulhasnagar, )
Municipal Corporation Ofce, )
Ulhasnagar - 3, District - Thane. ) ... Respondents
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WITH
WRIT PETITION (ST) NO.10828 OF 2021
Deepak Laxmandas Sirwani )... Petitioner
Versus
1. State of Maharashtra, )
Through the Secretary, )
Urban Development Department, )
Having Ofce at Mantralaya, )
Mumbai. )
2. Ulhasnagar Municipal Corporation, )
Through the Commissioner, )
Having Ofce at Ulhasnagar - 3, )
Dist. Thane. )... Respondents
WITH
WRIT PETITION (ST) NO.10544 OF 2021
Vijay Chahu Patil, )
Age 52 years, Occupation - Business, )
R/at Swami Shanti Prakash Colony, )
Shivneri Plaza, Basant Bahar Road, )
Opp. BK No.2002, Ulhasnagar - 5, )
Ulhasnagar 421 005 )... Petitioner
Versus
1. The State of Maharashtra, )
Through the Principal Secretary, )
Urban Development Department, )
Government of Maharashtra, )
Mantralaya, Mumbai - 400 032. )
2. The Ulhasnagar Municipal Commissioner, )
through the Municipal Commissioner, )
Near Chopda Court, )
Ulhasnagar - 421 003. )
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3. The Municipal Secretary, )
Ulhasnagar Municipal Corporation, )
Near Chopda Court, )
Ulhasnagar, Mumbai - 421 003. )... Respondents
Mr. Sharan Jagtiani, Senior Advocate with Ms. Shradha Achliya, Ms. Minal J.
Chandnani i/b Minal J Chandnani for Petitioner in WP (St) No. 10801 of 2021.
Mr. N. R. Bubna for Petitioner in WP (St) No. 10828 of 2021.
Mr. R. S. Kohli with Mr. Vikram Chavan, Ms. Chandni Bhatt, Ms. Tasneem Khatau i/
by C. K. Legal, for Petitioner in WP (St) No. 10544 of 2021.
Ms. P. J. Gavhane, AGP, for State.
Mr. Suresh M. Kamble, for Respondent Nos. 4 and 5 in WP (St) No. 10801 of 2021
and for Respondent No. 2 in WP (St) No. 10544 of 2021.
Mr. Mandar V. Limaye, for the Intervenors.
CORAM: S.J. KATHAWALLA &
SURENDRA P. TAVADE, JJ.
(VACATION COURT THROUGH VIDEO
CONFERENCING)
JUDGMENT RESERVED ON : 21st MAY, 2021
JUDGMENT PRONOUNCED ON : 9th JUNE, 2021
ORAL JUDGMENT ( PER S.J.KATHAWALLA, J. )
1. The above three Writ Petitions pertain to the reconstitution of the
Standing Committee and election of a Chairman to the Standing Committee of
Ulhasnagar Municipal Corporation ("the Corporation"). The Petitioners in each of
the three Petitions are elected Councillors of the Corporation and either present or
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former members of the Standing Committee. Although the reliefs sought in Writ
Petition (St) No. 10544 of 2021 are diferent from the reliefs sought in Writ Petition
(St) No. 10801 of 2021 and Writ Petition (St) No. 10828 of 2021, they arise out of
common set of facts and have a direct bearing on each other and raise common
questions of law. In view thereof, we considered it desirable to hear all these Petitions
together.
2. By consent of parties, these Writ Petitions were heard fnally at the
admission stage and are being disposed of by this common Order.
3. Writ Petition (St) No.10801 of 2021 has been fled by Shri Bhagwan
Bhalerao ("Shri Bhalerao"), who is an elected Councilor of the Corporation. Shri
Bhalerao was appointed as a member of the Standing Committee of the Corporation
w.e.f. 1st April, 2021, pursuant to a resolution dated 22 nd March, 2021 passed by the
Corporation at its general body meeting. Respondent No.1 is the State of Maharashtra
through its Under Secretary, Urban Development Department, Government of
Maharashtra ("State Government"). Respondent No.2 is the Divisional
Commissioner, Navi Mumbai ("the Divisional Commissioner"). Respondent No.3 is
the Collector, Thane ("the Collector"). Respondent No.4 is Ulhasnagar Municipal
Corporation through its Commissioner. Respondent No.5 is Ulhasnagar Municipal
Corporation through its Secretary ("Municipal Secretary").
3.1 By the said Resolution dated 22nd March, 2021, 8 members of the
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Standing Committee retired and 8 new members were appointed in place of the
retiring members. This was consistent with the mandate of the Maharashtra
Municipal Corporations Act, 1949 ("the Act"), and specifcally Section 20 that deals
with the constitution of the Standing Committee of a Municipal Corporation. The
reconstituted Standing Committee with the 8 new members was to take efect from 1 st
April, 2021.
3.2 After constitution of the new Standing Committee w.e.f. 1st April, 2021,
the Municipal Secretary with the consent of the Collector, issued a Notice dated 8 th
April, 2019 calling for a Special Meeting of the Standing Committee on 15 th April,
2021, for election of the Chairman of Standing Committee. The election of a
Chairman of the Standing Committee is provided for by Section 21 of the Act.
3.3 However, the State Government vide its direction dated 9th April, 2021
directed all Municipal Corporations, Collectors, etc. to postpone the election for
appointment of Chairman and members to the Standing Committee till further orders,
in view of the strict lockdown imposed by the State Government on 4 th April, 2021 due
to huge rise in the number of cases due to second wave of Covid-19 pandemic. Upon
receiving the aforesaid direction dated 9 th April, 2021 from the State Government, the
Collector vide its letter dated 9th April, 2021 addressed to the Corporation, postponed
the election for Chairman of the Standing Committee, scheduled on 15 th April, 2021.
3.4 Pursuant thereto, the State Government after re-considering the Covid-
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19 situation, by an order dated 6 th May, 2021 informed all Municipal Corporations that
the tenure of the Chairman and members of the Standing Committee who had retired,
shall stand extended until further orders. According to the Petitioner in Writ Petition
St. No. 10801 of 2021, despite a new Standing Committee having already taken charge
of their ofce w.e.f. 1st April, 2021, the aforesaid letter/order was issued by the State
Government to the Corporation.
3.5 In view thereof, the Petitioner fled the said Petition challenging the said
order dated 6th May, 2021 and sought the following reliefs :
"a. That this Hon'ble Court be pleased to issue a writ of mandamus or any
other appropriate writ, order or direction directing the respondents 1 and 4
for not implementing the said Order issued by Respondent No.1 bearing
reference number Corona-2020/Sr.No.76/UD-14, dated 06/05/2021
relating to Standing Committee which has already been reconstituted in
form of Appointment of New Members & Retirement of Old Members, as the
said Order is NOT APPLICABLE to Ulhasnagar Municipal Corporation.
b. That this Honourable Court be pleased to issue a writ of mandamus or
any other appropriate writ, order or direction directing the respondents 3 & 4
to conduct the democratic election process for Chairman of Standing
Committee either in form of ONLINE or OFFLINE so that one of members
among 16 newly appointed body of Corporators as Standing Committee
within a stipulated period not beyond 7 days as prescribed u/s 21(5) of the
Maharashtra Municipal Corporation Act 1949."
4. Writ Petition (St) No. 10828 of 2021, has been fled by Shri Deepak
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Sirvani (" Shri Sirvani"), who is an elected Councilor of the Corporation. Shri
Sirvani was also appointed as a member of the Standing Committee of the
Corporation w.e.f. 1st April, 2021, pursuant to the aforesaid resolution dated 22nd
March, 2021 passed by the Corporation. By the aforesaid Writ Petition, Shri Sirvani is
also challenging the order dated 6th May, 2021 issued by the Urban Development
Department on the ground that the said order is not applicable to the Corporation as a
Standing Committee has already been constituted w.e.f. 1st April, 2021.
5. Writ Petition (St) No. 10544, has been fled by Shri Vijay Chahu Patil
("Shri Patil"), who is an elected Councilor of the Corporation from Ward 19. Shri
Patil was elected as a member of the Standing Committee of the Corporation in 2019
and was also elected as the Chairman of the Standing Committee on 29 th October,
2020. Shri Patil retired as a member of the Standing Committee from 1 st April, 2021
pursuant to the Resolution dated 22nd March, 2021 passed by the Corporation at its
general body meeting. In this Petition, Respondent No. 1 is the State of Maharashtra,
through the Principal Secretary Urban Development Department, Government of
Maharashtra. Respondent No. 2 is the Corporation through its Municipal
Commissioner. Respondent No. 3 is the Municipal Secretary.
5.1 This Petition challenges the Notice dated 8th April, 2021 issued by the
Municipal Secretary calling for a Special Meeting of the Standing Committee on 15 th
April, 2021, for election of its new Chairman. However, there is no challenge to the
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Resolution of 22nd March, 2021, which provides for the retirement of 8 members
(including this Petitioner) and appointment of 8 new members to the Standing
Committee with efect from 1st April, 2021.
5.2 According to Shri Patil the said Notice is illegal, pre-mature and void ab
initio as he was appointed as the Chairman of Standing Committee on 29 th October,
2020 and his tenure of one year has not yet concluded and no new Chairman can be
appointed before that. Being aggrieved by the said Notice dated 8 th April, 2021, Shri
Patil has fled this Writ Petition inter alia seeking the following reliefs :
"(a) That this Hon'ble Court after having ascertained the facts in the case
in hand and in light of the relevant provisions of law be pleased to hold and
declare that the actions of the Respondent No.3 in issuing the Impugned
Notice dated 8th April, 2021 being Exhibit "A" to the petition, is per se
illegal, unconstitutional and void ab initio;
(b) That this Hon'ble Court be pleased to issue a writ of certiorari and/or
any other writ and/or order and/or direction in the nature of certiorari
thereby quashing and setting aside the impugned Notice dated 8 th April, 2021
bearing outward no. UMP/SK/1/2021 issued by Respondent No.3 (being
Exhibit "A" to the present Petition);
(c) That this Hon'ble Court be pleased to pass appropriate orders and/or
directions thereby directing the Respondent No.3 to refrain from issuing any
such notice/s calling for Standing Committee meeting for election of the
Chairman of the Standing Committee until the expiry of the term of the
Petitioner's appointment as the Chairman of the Standing Committee i.e.
28th October 2021."
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6. An oral intervention application was sought to be made at the fnal
hearing of the aforesaid Writ Petitions by the remaining seven members of the
erstwhile Standing Committee ("Intervenors"), who had retired pursuant to the
Resolution dated 22nd March, 2021 passed by the Corporation. By the said
intervention application, the Intervenors sought to challenge the appointment of a new
Chairman of the Standing Committee and have adopted the submissions made by Shri
Kohli, Advocate on behalf of Shri Patil.
7. The facts necessary for deciding the aforesaid Writ Petitions are briefy
set out hereunder :
7.1 The general elections of the Corporation were held in February 2017,
when 78 councilors including Shri Bhalerao, Shri Sirvani and Shri Patil were elected.
7.2 After the general elections, the frst meeting of the Corporation was held
on 5th April, 2017 and a Standing Committee of the Corporation, consisting of sixteen
members, was appointed.
7.3 On 1st April, 2018, one half of the Standing Committee members i.e. 8
members out of the 16 members retired and 8 new members were appointed in place
of the retiring members.
7.4 On 1st April ,2019, one half of the Standing Committee members i.e. 8
members out of the sixteen members retired and eight new members were appointed
in place of the retiring members. Shri Patil was one of the newly appointed members
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of the Standing Committee.
7.5 In March 2020, there was an outbreak of Covid-19 pandemic and a
lockdown was imposed in the country.
7.6 In view of the said lockdown, a general Body Meeting of the Corporation
for appointment of new Standing Committee w.e.f. 1st April, 2020, could not be held in
March 2020.
7.7 Thereafter, a new Standing Committee was appointed in October 2020.
7.8 Pursuant to appointment of the new Standing Committee, a Notice
dated 22nd October, 2020 was issued by the Municipal Secretary, calling upon a
Special Meeting on 29th October, 2020 for election of the Chairman of the Standing
Committee.
7.9 A Special Meeting of the Standing Committee was held on 29 th October,
2020 and Shri Patil was appointed as the Chairman of the Standing Committee.
7.10 Thereafter, a Notice dated 12 th March, 2021, was issued by the
Corporation informing all its members that a general body meeting shall be held on
22nd March, 2021 inter alia for appointment of 8 new members to the Standing
Committee in place of the 8 members who were to retire from 1st April, 2021.
7.11 On 22nd March, 2021, the general body meeting of the Corporation was
held and a resolution was passed by the Corporation, accepting the appointment of 8
new members, including Shri Bhalerao and Shri Sirvani, to the Standing Committee in
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place of the 8 retiring members (including Shri Patil). This Resolution itself states that
the reconstituted Standing Committee will take efect on 1 st April, 2021.
7.12 Pursuant thereto, on 1st April, 2021, the 8 erstwhile members (including
Shri Patil), retired as members of the Standing Committee and 8 new members
(including Shri Bhagwan Bhalerao and Shri Dipak Sirvani), took charge of their ofce.
7.13 After appointment of the Standing Committee, a Notice dated 8 th April,
2021, was issued by the Municipal Secretary with the permission of the Collector,
calling for a Special Meeting of the Corporation on 15 th April, 2021, for election of the
Chairman of Standing Committee.
7.14 However, on 9th April, 2021, the State Government issued a letter to all
Municipal Commissioners, Divisional Commissioners, Collectors, etc. inter alia
stating that a strict lockdown had been imposed by the State Government on 4 th April,
2021 in view of the huge rise in the number of cases due to second wave of Covid-19
pandemic. In view thereof, by the said letter the State Government directed that the
election of Chairman and members of the Municipal Corporation, Nagar Parishad and
Nagar Panchayat be postponed until further orders.
7.15 Upon receiving the aforesaid direction, the Collector addressed a letter
dated 9th April, 2021 to the Corporation inter alia informing them that in view of the
aforesaid direction received from the State Government, the election for Chairman of
the Standing Committee scheduled on 15th April, 2021 shall stand postponed.
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7.16 In view thereof, the Corporation vide its letter dated 12th April, 2021,
informed all its members that the election for the Chairman of Standing Committee,
scheduled on 15th April, 2021 shall stand postponed in view of aforesaid letter dated 9 th
April, 2021 received from the Collector.
7.17 On 6th May, 2021, the State Government after re-considering the Covid-
19 situation, by its letter/order inter alia informed all Municipal Corporations
(including the Ulhasnagar Municipal Corporation) that the tenure of the Chairman
and members of the Standing Committee who had retired, shall stand extended until
further orders. A copy of the said letter/order dated 6 th May, 2021 was also issued to
the Corporation.
7.18 In view of the above Shri Bhalerao and Shri Sirvani fled Writ Petition
Nos. 10801 and 10828 inter alia impugning the said letter / order dated 6th May, 2021.
8. On 19th May, 2021, when the aforesaid Writ Petitions came up for
hearing, a statement was made by the Advocate appearing for the State Government,
on instructions of the Under Secretary, Urban Development Department,
Government of Maharashtra that the said order dated 6 th May, 2021 issued by the
State Government was not applicable to the newly elected members of the Standing
Committee of the Corporation and the members of the earlier Standing Committee
will not be allowed to continue as its members where fresh elections have already been
held and declared. We accepted the said statement made on behalf of the State
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Government and passed the following Order :
"1. The Learned AGP on instructions states that the Order dated 6 th May,
2021 passed by the State Government will not be made applicable to the
newly elected members of the standing committee i.e. the members of the
earlier standing committee will not be allowed to continue as members of the
standing committee where fresh elections of the standing members are
already held and declared. The statement is accepted. Prayer Clause (a) of
the Writ Petition is therefore rendered infructuous.
2. Consequently prayer clause (b) has to be allowed. However, Advocate
Kohli states that he has fled a Petition being (St.) No.10544 of 2021 on
behalf of the earlier Chairman which Writ Petition needs to be heard
alongwith the above Writ Petition. Advocate Kohli undertakes to serve a
copy of his Writ Petition on the Advocates for the Petitioners in the above two
Petitions and also on the Advocate for the Corporation. By consent, the
above Petition alongwith Petition (St) No.10544 of 2021 are placed for
hearing on 21st May, 2021, High on Board."
8.1 In view of the aforesaid statement made on behalf of the State
Government, prayer clause (a) as sought by Petitioner in Writ Petition (L) No. 10801
of 2021 became infructuous inasmuch as even the State Government that had issued
the impugned direction or notifcation of 6 th May, 2021 accepted that it would not
apply to the reconstituted Standing Committee of the Ulhasnagar Municipal
Corporation, which reconstitution had come into efect on 1 st April, 2021.
Consequently, what remained for consideration was prayer clause (b) therein, being a
direction to the Collector and Corporation for holding election for appointment of a
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Chairman of the Standing Committee. Whilst we had expressed that the grant of
prayer (b) must follow from the statement made by the State Government, since it was
being opposed by Shri Kohli, learned Advocate appearing for Shri Patil in Writ
Petition (St) No. 10544 of 2021, we directed that his Petition be listed on the next date.
8.2 In view thereof, before passing any direction to the Collector and
Corporation for holding election of Chairman to the Standing Committee of the
Corporation, we considered it necessary to hear all the parties on prayer clause (b) as
sought by Shri Bhalerao in his Writ Petition (L) No. 10801 of 2021. Accordingly, by
consent of parties, all the Writ Petitions were heard together fnally on 21 st May, 2021.
9. In order to decide whether Shri Bhalerao is entitled to grant of prayer
clause (b), as sought in his Writ Petition (St) No. 10801 of 20210, the following issues
will have to be considered :
(i) Issue No.1 : Whether the tenure of Shri Patil as the Chairman of
the Standing Committee has concluded by reason of him retiring as a member of the
Standing Committee?; Consequently, whether his ofce as Chairman can continue
only upto his membership of the Standing Committee ?
(ii) Issue No.2 : Whether the Standing Committee constituted as of
1st April, 2021 is barred, under Section 21(5) of the Maharashtra Municipal
Corporation Act, 1949 ("the said Act") from appointing a Chairman of the Standing
Committee by reason of thirty days from the date of its reconstitution having elapsed ?
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10. As regards Issue 1 set out in paragraph 9 above, Shri R.S. Kohli, learned
Advocate appearing on behalf of Shri Patil submitted that due to outbreak of Covid-19
pandemic in March 2020, there was a delay in appointment of the new members and
Chairman of the Standing Committee. Subsequently, the new Standing Committee
was appointed in October 2020. After the Standing Committee was appointed, the
elections of appointment of Chairman of the Standing Committee were held on 29 th
October, 2020 and Shri Patil was appointed as its Chairman. According, to Shri Kohli,
the tenure of Shri Patil as Chairman was for a period of one year from the date of his
appointment and the same would expire in October 2021. In view thereof, Shri Kohli
submitted that the Notice dated 8th April, 2021 issued by the Municipal Secretary
calling for a Special Meeting for appointment of new Chairman of Standing
Committee is illegal, pre-mature and void ab initio and no new Chairman of the
Standing Committee can be appointed before October 2021, as sought by Shri Patil.
10.1 Shri Sharan Jagtiani, learned Senior Advocate, and Shri N.R. Bubna
learned Advocate, opposed the aforesaid contention raised by Shri Kohli and
submitted that the tenure of Shri Patil as Chairman of the Standing Committee has
already concluded. Shri Jagtiani and Shri Bubna submitted that under Section 21(1) of
the said Act, a Chairman of a Standing Committee is required to be appointed from
amongst its sixteen members. Further, under Section 21(3) of the said Act, if a
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Chairman ceases to be a member of the Standing Committee, he is required to
immediately vacate his ofce as a Chairman. He submitted that in the present case,
Shri Patil admittedly retired as a member of the Standing Committee w.e.f. 1st April,
2021, pursuant to the resolution passed by the Corporation at its General Body
Meeting held on 22nd March, 2021. Further, according to him as Shri Patil has not
challenged the said resolution, he has thereby accepted his retirement as a member of
the Standing Committee. In view thereof, Shri Jagtiani submitted that the tenure of
Shri Patil as a Chairman of the Standing Committee has ceased upon his retirement as
a member of the Standing Committee w.e.f. 1st April, 2021 and having retired as a
member of the Standing Committee on 1 st April, 2021 Shri Patil could not have
continued and/or cannot continue to be its Chairman thereafter.
10.2 Without prejudice to his aforesaid argument, Shri Jagtiani submits that
the contention of Shri Patil that his tenure as a Chairman of Standing Committee is of
one year from the date of his election i.e. 29th October, 2020 is thoroughly
misconceived. According, to Shri Jagtiani, from a conjoint reading of Sections 20 and
21 of the said Act, it is clear, that the tenure of the Standing Committee is of one year
to be reckoned, in the frst instance, from the frst date of the month in which the frst
meeting after a general election for appointing a Standing Committee and for period of
one year for every successive year thereafter. Its constitution changes every year when
one half of its members retire, in the same month in each succeeding year, in which
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the frst meeting of the Corporation after its General election was held. Thus,
according to Shri Jagtiani, irrespective of the date of appointment/election of the
members and Chairman of the Standing Committee, the date of their retirement is
fxed under the said Act, being the frst day of the month in which the frst meeting of
the Corporation after its General election was held, and the same cannot be altered.
He further submitted that, even if the members or the Chairman of the Standing
Committee are appointed late, for any reason, whatsoever, it would not extend the
term of their ofce beyond the aforesaid period.
10.3 Shri Jagtiani submitted that in the present case, the general elections of
the Corporation were held in 2017 and the frst meeting of the Corporation after its
general elections, was held on 5th April, 2017. Thus, as per Section 20(3) of the said
Act, every succeeding year, one half of the members of the Standing Committee and
its Chairman retired on frst day of April and these members were substituted with
fresh members under Section 20(5) of the said Act. However, in 2020, due to outbreak
of Covid-19 pandemic, the Standing Committee and its Chairman were appointed in
October 2020. Despite their appointment in October 2020, 8 members of the
Standing Committee retired on 1st April, 2021 in accordance with Section 20(3) of the
said Act and a new Standing Committee was appointed from 1 st April, 2021. Thus,
according to Shri Jagtiani, even though Shri Patil was appointed on 29 th October, 2020,
his tenure as the Chairman of the erstwhile Standing Committee concluded on 1 st
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April, 2021.
10.4 In support of its aforesaid contention, Shri Jagtiani relies upon the
judgment of this Court in Prashant Prabhakar More v State of Maharashtra & Ors. 1
wherein the issue that arose for consideration before this Hon'ble Court was whether
the tenure of a Standing Committee appointed in June would continue till June of next
year or whether the same would expire in March of the succeeding year, being the
month in which the frst meeting of the Corporation after its general elections was
held. Shri Jagtiani submitted that after considering the purport of Sections 20 and 21,
this Court upheld the latter view, as that is the invariable mandate of the law.
11. As regards Issue No.2 set out in paragraph 9 above, Shri Kohli on behalf
of Shri Patil submitted that under Section 21(5) of the said Act, the Standing
Committee was required to appoint a Chairman within 30 days from the date of its
appointment i.e., 1st April, 2021. The Standing Committee having failed to appoint the
Chairman within 30 days, the Corporation was required to call for a Special Meeting
to appoint the Chairman within 15 days from the expiry of the aforesaid 30 days
period. Shri Kohli submitted that as both the Standing Committee and Corporation
failed to appoint the Chairman within the time stipulated under Section 21(5), the
Standing Committee is barred by limitation to appoint a new Chairman and no new
Chairman can be appointed now.
1 2010 (3) Mh.L.J. 497
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11.1 Shri Jagtiani and Shri Bubna opposed the aforesaid contention and
submitted that after appointment of the Standing Committee on 1 st April, 2021, the
Standing Committee immediately took steps for appointment of a Chairman. A Notice
dated 8th April, 2021 was issued by the Municipal Secretary with the consent of the
Collector for holding election of the Chairman of the Standing Committee on 15 th
April, 2021. However, the said election was postponed in view of the letter/order
dated 9th April, 2021 issued by the State Government directing the Municipal
Corporations, Collectors to postpone the election of Chairman and members of
Standing Committee until further orders, in view of huge rise in the number of cases
due to Covid-19 pandemic. Thereafter, on 6 th May, 2021, the State Government issued
a letter/order directing that the tenure of the Chairman and members of the Standing
Committee who had retired, shall stand extended. Till the clarifcation issued during
the course of these proceedings, it was understood by all that 6 th May, 2021 was
intended to apply even to the newly reconstituted Standing Committee of the
Ulhasnagar Municipal Corporation.
11.2 Shri Jagtiani submitted that after fling of the Writ Petition (L) No.
10801 of 2021 by Shri Bhalerao, a statement was made on behalf of the State
Government on 19th May, 2021, that the aforesaid letter/order dated 6th May, 2021
issued by them was not applicable to the Corporation as a new Standing Committee of
the Corporation had already been appointed. Shri Jagtiani submitted that applying the
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same analogy, the State Government could also not have issued the direction dated 9 th
April, 2021, postponing the election of the Chairman of the Standing Committee, as
the Standing Committee had already been appointed on 1 st April, 2021. Further, he
submitted that the power of the State Government to issue the direction dated 9 th
April, 2021 is not relatable to Section 451 of the said Act and that is no one's
submission. Thus, Shri Jagtiani submitted that the said direction dated 9 th April, 2021
issued by the State Government postponing the election of the Chairman of the
Standing Committee was without any authority of law and cannot now deprive the
Standing Committee of its right to appoint its Chairman.
11.3 Shri Jagtiani submitted that under the said Act, the State Government
does not have any power to cancel or suspend the election for appointment of the
Chairman of Standing Committee. He submitted that infact under Rule 2(3) of the
Bombay Provincial Municipal Corporation (Conduct of Election for the post of
Chairman of Standing Committee, Transport Committee, Ward Committee, etc.)
Rules, 2007 ("the said Rules"), once the meeting for election of Chairman is
scheduled, the same cannot be cancelled or postponed.
11.4 Shri Jagtiani further submitted that under Section 21(5) of the said Act,
a Standing Committee is required to appoint a Chairman, within 30 days from the date
of its appointment. However, if the Standing Committee, fails to do so, the
Corporation is required to appoint the Chairman within 15 days from the expiry of the
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aforesaid 30 days period. The Corporation has not initiated any such steps because
even the Corporation has not understood the 30 days period for election of a
Chairman as being over, in the facts of the present case.
11.5 Shri Jagtiani, without prejudice to his aforesaid argument also submitted
that the period from 15th April, 2021 onwards cannot be included in the 30 days period
as prescribed under Section 21(5) of the said Act and the Standing Committee is
therefore well within the period of limitation as prescribed under Section 21(5) of the
said Act, to appoint its Chairman.
11.6 Strictly without prejudice to its aforesaid contentions, Shri Jagtiani
submitted that on purposive and harmonious reading of Sections 20 and 21, the
valuable right of a Standing Committee to appoint its Chairman cannot be taken away
unless the failure to appoint a Chairman was attributable to the Standing Committee.
He submitted that as the delay in appointment of the Chairman was not attributable to
the Standing Committee, it cannot be deprived of its right to appoint a Chairman and
therefore prayer clause (b) as sought by Shri Bhalerao ought to be granted.
11.7 Shri Mandar Limaye representing the Intervenors has adopted all the
submissions made by Shri Kolhi representing Shri Patil in WP (ST)No. 10544 of 2021.
12. We have considered the facts in the above Petitions and the submissions
advanced by the learned Advocates before us. The issues that arise for consideration
relate primarily to the provisions of Sections 20 and 21 of the Act. For convenience,
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these provisions in their entirety are reproduced below :
"20. Constitution of the Standing Committee:
(1) The Standing Committee shall consist of [sixteen] councillors.
(2)The Corporation shall at its frst meeting after general 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 frst day of the month in which the frst
meeting of the Corporation mentioned in sub-section (2) was held :
Provided that all the members of the Standing Committee in ofce when
general elections are held shall retire from ofce 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 specifed 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 ofce:
Provided that, in the case of a member who has been reappointed, the term
of his ofce 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 specifed in sub-section (3) appoint fresh members of the
Standing Committee to fll the ofces 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.
21. Appointment of the Chairman of the Standing Committee:
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(1) The Standing Committee shall at its frst meeting after its appointment
under sub-section (2) of section 20 and at its frst meeting in the same
month in each succeeding year appoint one of its own number to be the
Chairman.
(2)The Chairman shall hold ofce until his successor has been appointed
under sub-section (1) but shall be eligible for reappointment.
(3) Notwithstanding the provisions of sub-sections (1) and (2)the Chairman
shall vacate ofce as soon as he ceases to be a member of the Committee.
(4) If any casual vacancy occurs in the ofce of the Chairman, the Standing
Committee shall, as soon as conveniently may be after the occurrence of the
vacancy, appoint one of its number to fll such vacancy and every Chairman
so appointed shall continue in ofce so long only as the person in whose
place he is appointed would have held it if such vacancy had not occurred.
(5) If for any reason the Standing Committee does not appoint the Chairman
under sub-section (1) or (4), within a period of thirty days from the date of
its appointment under sub-section (2) of section 20, or from the date
following the date of retirement of one-half of the members specifed in sub-
section (3) of that section, or from the date on which a casual vacancy
occurs in the ofce of Chairman, as the case may be, the appointment of the
Chairman, after the expiry of the said period, shall be made by the
Corporation, from amongst the members of the Standing Committee, at a
special meeting called and held for the purpose within ffteen days from the
expiry of the said period of thirty days. At such meeting, the question shall
be decided by a majority of votes of the Councillors present and voting and
if there be an equality of votes, the presiding authority shall have and
exercise a second or casting vote. Every Chairman so appointed, shall
continue in ofce so long only as the Chairman appointed by the Standing
Committee would have continued in ofce."
13. We will now deal with Issue No. 1 which is once again reproduced
hereunder for ready reference :
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Whether the tenure of Shri Patil as the Chairman of the Standing
Committee has concluded by reason of him retiring as a member
of the Standing Committee?; Consequently, whether his ofce as
Chairman can continue only upto his membership of the Standing
Committee?
13.1. As regards Issue No. 1 the submission of Shri Kohli on behalf of Shri
Patil is that his ofce as Chairman for the previous Standing Committee must continue
for one year from the date of his appointment as Chairman in October 2020. As noted
above, Shri Patil has in his Petition not challenged his retirement as a member of the
Standing Committee by the Resolution of 22nd March, 2021, w.e.f 1st April, 2021.
13.2 Considering that Shri Patil has retired as a member of the Standing
Committee as one of the 8 retiring members, as part of the process of reconstituting
the Standing Committee every year, as contemplated by Section 20(2) and 20(3) of
the Act, the submission that he must however continue as Chairman of the Standing
Committee is wholly untenable and without merit. There can be no manner of doubt,
on a bare perusal of Sections 20 and 21 of the Act, that a Chairman of the Standing
Committee must frst and foremost be a member of the Standing Committee.
Admittedly, Shri Patil is not a member of the Standing Committee having retired on 1 st
April, 2021.
13.3 In this view of the matter, there is absolutely no legal basis for the
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contention that he must be deemed to continue as Chairman and by necessary
implication as a member of the Standing Committee because he has not completed a
term of one year from October 2020, when he was elected as Chairman of the
previous Standing Committee.
13.4 We are supported in this view by Section 21(1), which requires the
Standing Committee appoint 'one of its own' as a Chairman. Obviously, that
Chairman can not be Shri Patil who is not a member of the Standing Committee with
efect from 1st April, 2021. Section 21(3) of the Act has a direct bearing on this matter
and clearly stipulates that the Chairman shall vacate ofce as soon as he ceases to be a
member of the Committee. This completely concludes the matter against Shri Patil
and precludes any continuation as a Chairman if Shri Patil is not a member of the
Standing Committee itself.
13.5 The submission of Shri Kolhi that the period of one year for determining
the duration of the ofce of Chairman (or for that matter the duration of the term of a
Standing Committee member) should be reckoned from October 2020, is equally
misconceived. This submission is contrary to the clear mandate of Section 20(2) and
20(3) of the Act and the settled position as held in the case of Prashant Prabhakar
More (supra).
13.6 As per Section 20(2), after every general election, the Corporation shall
at its frst meeting appoint 16 persons out of its own body to be members of the
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Standing Committee. This Standing Committee will have a term of about one year.
One half of the members of the Standing Committee shall, as per Section 20(3) of the
Act, retire "... every succeeding year at noon on the frst day of the month in which the frst
meeting of the Corporation mentioned in sub-section (2) was held:...". It is thus clear that
the period of one year, which is the term of the Standing Committee before it is
reconstituted after 8 persons retiring and 8 fresh appointments, must be determined
from the frst day of month in which the frst meeting of the Corporation to appoint its
Standing Committee took place and every succeeding year thereafter as determined
from this date. In the present case, there is no dispute that after the last general
elections of the Ulhasnagar Municipal Corporation in 2017, the frst meeting of the
Corporation was in April, 2017. Therefore, 1 st April, of year 2017 and every succeeding
year thereafter must be taken as the date on which 8 members of the Standing
Committee are to retire and 8 new members are appointed, as per Section 20(3) read
with Sections 20(4) and 20(5) of the Act. If in a particular year the reconstitution and
appointment of new members to the Standing Committee is delayed, as may have
happened in 2020 on account of the Covid 19 Pandemic, that cannot have the efect of
extending the term of the members of that Standing Committee beyond 1 st April of the
next succeeding year. There is nothing in the Act which says that the one year
duration before reconstitution of the Standing Committee must be determined from
the date of the last reconstitution of the Standing Committee. It is perhaps for this
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reason that Shri Patil has not challenged Resolution of 22 nd March, 2021 by which his
retirement comes into efect on 1 st April, 2021. That being so, his term as Chairman
cannot be extended beyond 1st April, 2021.
13.7 We are supported in this view by the judgment in Prashant Prabhakar
More (supra), relied upon by Shri Jagtiani. In paragraphs 13 to 20, a Division Bench of
this Court, in interpreting Section 20 of the Act, have held as follows :
"13. That takes us to the principal question to be decided by us. Before
we proceed further, we think it apposite to reproduce Section 20 of the
Act, which has direct bearing on the point in issue. Section 20 reads
thus : -
........
We have the advantage of the decision of our High Court in case of
Nitin Manga Shirsat (Supra) which had occasion to examine the
purport of Section 20. It will be useful to reproduce the relevant
discussion in this decision which has considered the purport of
Section 20, in the context of point in issue. The same reads thus :
"So far as election of the Chairman of the new Standing Committee
every year, the starting point is the date of retirement of half of the members
specifed in subsection (3) of that section. Consequently, the second clause is
required to be read with sub-section (3) of section 20. On reference to the
said provision, it is evident that the legislation in its wisdom has not left the
date of retirement at the option of the member of the Standing Committee.
Half of the members of the Standing Committee, at the end of frst year, by
procedure of drawing lots and at the end of succeeding years, the senior half
members of the Standing Committee stand retired on the frst day of the
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month in which the frst meeting of the Corporation, as mentioned in
subsection (2) of section 20, was held. Thus, even if the frst meeting of the
Corporation for election of frst Standing Committee was held after expiry
of major portion of the calendar month, that will not enable the frst
Standing Committee to continue to be Standing Committee exactly for a
period of one year and up to the date of the same calendar month of the
succeeding year on which they were elected immediately after general
elections. If they are elected on the frst day of the calendar month, the
tenure of the members of the frst Standing Committee may be exactly 365
days. But if they are elected in the general body meeting of the Corporation
held on later date of the month the life of the frst Standing Committee shall
stand curtailed to that extent from exact period of one year. If they are
elected on the last day of the calendar month, their tenure practically would
be only 11 months. By subsection (3) of section 20, legislation has left no
option to the members of the Standing Committee, and they retire on the
frst day of the month of the succeeding year in which they were elected at the
frst meeting of the Corporation under section 20(2)."
(Emphasis supplied)
We are in agreement with the above said opinion. The plain language
of subsection (2) leaves no manner of doubt that it is mandatory to
appoint 16 persons out of its own body to be members of the Standing
Committee "at its frst meeting" of the Corporation after general
elections. In other words, the Corporation has no option but to
appoint 16 persons out of its own body to be members of the Standing
Committee "at its frst meeting after general elections." That decision
cannot be postponed or deferred to some other meeting at all. This is
obviously to ensure that the term of the Standing Committee so
constituted is co-terminus with the term of the newly elected members
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of the general body of the Corporation. The term of the general body
is circumscribed by the provisions of Constitution of India read with
Section 6 of the Act of 1949. That term commences from "the frst
meeting after general elections." The frst meeting of the general body
after general elections has to be convened within a reasonable time and
in any case before the maximum term of the outgoing general body
expires. Lest, it would result in a void situation. The law circumscribes
the maximum term of the outgoing general body. Obviously, therefore,
to ensure that the term of the Standing Committee (which is
constituted by election of 16 members amongst the general body of the
newly elected members of the Corporation) should be co-terminus
with the term of the general body which has constituted it, the
mandate of subsection (2) is to elect 16 persons thereon "in its frst
meeting after general elections." This is the expectation of law as
legislated by the State Legislature.
14. The purport of subsection (3) mandates that one-half of the
members of the Standing Committee shall retire every succeeding
year at noon on the frst day of the month in which the frst meeting of
the Corporation mentioned in subsection (2) was held...This
subsection deals with two aspects. Firstly, that one-half of the
members of the Standing Committee shall retire at the prescribed
time. Secondly, the proviso envisages that all the members of the
Standing Committee in ofce shall retire from the ofce on the
election of the new committee under subsection (2). From this
provision it is amply clear that the term of the Standing Committee
has to be co-terminus with the term of the outgoing general body
which had constituted the said Standing Committee in its frst meeting
after the general elections so that the new general body would elect the
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members out of its own body to be members of the Standing
Committee.
15. In so far as sub-section (4) is concerned, that deals with the right of
the members who would retire due to expiry of their term specifed in
sub-section (3). Indeed, it provides that the members would retire
"one year after" their election under subsection (2), to be eligible for
being re-appointed and their continuation in the ofce for specifed
period. Proviso to sub-section (4) envisages that a person is re-
appointed, the term of his ofce for the purposes of the said sub-
section shall be computed from the date of his re-appointment.
16. Taking clue from the opening part of subsection (4), it was argued
on behalf of the Respondents that there is guarantee of one year term
of the member of the Standing Committee after the election under
subsection (2). Therefore, the sweep of subsection (2) will have to be
harmonised with the said guarantee of one year term as member of the
Standing Committee after his election. This submission will have to be
stated to be rejected. In the frst place the subject dealt with by
subsection (4) is not to guarantee the term of ofce of the members,
but the substance of that provision is that the outgoing member may
ofer himself to be reappointed for the specifed period. Whereas,
subsection (2) is a substantive provision as to when the term of the
member of the Standing Committee would expire. There is hardly any
option available to the newly elected general body but to appoint 16
persons out of its own body to be members of the Standing Committee
at its frst meeting after general elections. The emphasis in subsection
(2) is to appoint persons as members of the Standing Committee at its
frst meeting after general elections and not at any point of time as
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general body may like or other fortuitous circumstances resulting in
deferring appointment of persons as members of the Standing
Committee beyond the date of the frst meeting after general elections.
17. To get over this position, it was argued on behalf of the
Respondents that in the fact situation of the present case, it will have
to be held that the Standing Committee was constituted on 12th June
2007 and the frst meeting after election on 15 th March, 2007 will have
no bearing to reckon the term of members of the sub Committee,
inasmuch as the election of the members was as per the directions
issued by this Court in Writ Petition No. 2564 of 2007 decided on
April 30, 2007. It is not possible to accede to this submission. For the
view that we have already taken that for the purpose of constitution of
the Standing Committee, term will relate back to the date of frst
meeting of the Corporation after general elections. The fact that the
Standing Committee was not so constituted for whatever reason would
not extend the term of ofce of members beyond the term specifed in
subsection (3) which mandates that one-half of the members of the
Standing Committee shall retire every succeeding year at noon "on
the frst day of the month" in which the "frst meeting of the
Corporation" referred to in subsection (2) was held. Since subsection
(3) refers to subsection (2), both these provisions are intertwined. On
reading the provisions separately or for that matter conjointly, the
mandate for computing the commencement of the term of ofce of the
Standing Committee will have to be reckoned from the date of the frst
meeting of the Corporation after the general elections. No other
interpretation is possible. Taking any other view would result in
rewriting of the provision which would be against the legislative intent.
Besides, it may result in an uncertainty and also leaving it to the
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discretion of the Corporation to appoint 16 members out of its own
body to be members of the Standing Committee at any time, whereas
the view that we are inclined to take will not only be purposive
construction of the relevant provision but also uphold the legislative
intent of specifying the date of commencement of the term of the
Standing Committee duly elected by the general body.
18. ..... The argument of the Respondents to take a view that term of
ofce as member of the Standing Committee should be reckoned from
the date of election and not from the date of the frst meeting after
general elections and more so that there is guarantee of term at least of
one year after the election as is provided in subsection (4), will have to
be rejected for more than one reason. Firstly, as aforesaid, subsection
(4) deals with entirely diferent subject of stipulating that the outgoing
member may ofer himself to be reappointed. This provision cannot
control the purport of subsection (2) or for that matter of subsection
(3). It will have to be subservient to the regime provided in those
subsections. The fact that subsection (4) refers to period of one year
after elections does not mean that it is a provision to guarantee the
minimum term of one year from election, in the ofce of the member
of the Standing Committee, as is contended. Besides, this argument,
in any case, is not available to the present set of members of the
Standing Committee. At best, such argument could have been invoked
by the frst set of original members who stood retired in March 2008
as their term were to be curtailed below one year from the date of their
election.
19. Accordingly, we have no hesitation in taking a view that the term of
the Standing Committee, in the fact situation of the present case,
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commenced on or from 15th March, 2007 for the purpose of
computing the term of ofce of the members of the present Standing
Committee, even though, in fact, the elections were held on 12th June
2007.
20. That takes us to the argument in the context of alternative relief
claimed by the Petitioner to hold that the term of 8 members of the
present Standing Committee of the Respondent-Corporation would
expire on 1st April, 2010 and to direct the Respondent Nos.1 to 3 to
hold a meeting for election of fresh members of the Standing
Committee (eight in numbers) to fll in such vacancies as soon as
possible after 1st April, 2010. It is not in dispute that the election to
appoint 16 persons out of the newly elected general body to be
members of the Standing Committee was held on 7th April, 2007.
Moreover, the meeting in which that election was held was considered
as the frst meeting of the Corporation after general elections, as was
notifed in the Agenda as well as the Minutes of that meeting. The fact
that the said meeting dated 7th April, 2007 was described as or treated
as the frst meeting after general elections of the Corporation does not
take the matter any further. We have already taken a view that the
legislative intent to provide certainty to the date on which Standing
Committee should be constituted and more so as the subsection (3) in
unambiguous terms provides, one-half of the members of the Standing
Committee so constituted would retire every succeeding year at noon
on the "frst day of the month" on which "the frst meeting" of the
Corporation mentioned in subsection (2) was held. It is indisputable
that the frst meeting after general elections for the purpose of
subsection (2) was held on 15th March, 2007. The fact that the subject
of appointing 16 persons to be members of the Standing Committee
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was not considered in the said meeting and that subject stood deferred
to the meeting held on 7th April, 2007 would not extricate from the
requirement of reckoning the term of members of the Standing
Committee as provided in subsection (2) read with subsection (3) of
Section 20 of the Act, which has to be the date of the frst meeting
after general elections, as that was the meeting held as per subsection
(2) of the Act."
13.8 For the reasons set out above, we answer the frst Issue (in both its
parts) in the afrmative. We therefore fnd no merit in Writ Petition St. No. 10544 of
2021 fled by Shri Patil. The same is accordingly dismissed.
14. We will now deal with Issue No. 2 which is once again reproduced
hereunder for ready reference :
Whether the Standing Committee constituted as of 1 st April, 2021
is barred, under Section 21(5) of the Maharashtra Municipal
Corporation Act, 1949 ("the said Act") from appointing a
Chairman of the Standing Committee by reason of thirty days
from the date of its reconstitution having elapsed?
14.1 This issue pertains to the appointment of Chairman by the Standing
Committee after its reconstitution on 1st April, 2021. Ordinarily this should follow as a
matter of course especially since the State Government has now clarifed that the
Notifcation of 6th May, 2021 does not apply to the Ulhasnagar Municipal Corporation,
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as noted by us above. However, the objection to the appointment of Chairman and the
grant of prayer (b) in Writ Petition St. No. 10801 of 2021 is to the efect that since the
Standing Committee has not appointed a Chairman within 30 days of its
reconstitution, it can no longer do so and that it is now for the Corporation to appoint
the Chairman. Shri Kohli and Shri Limaye have relied on Section 21(5) of the Act in
support of their submission.
14.2 Having considered the specifc facts of the present case and the relevant
provision, we are of the view that there is no merit in this submission and the Standing
Committee as constituted on 1st April, 2021 cannot be deprived of a very valuable right
to appoint its own Chairman. Looking to the scheme of Section 21 there can be no
doubt that it is for the Standing Committee in the frst instance to appoint its own
Chairman. Section 21(5) of the Act qualifes this by stating "If for any reason the
Standing Committee does not appoint a Chairman... within a period of thirty days from the
date of its appointment... or from the date following the date of retirement of one-half of the
members... or from the date on which a casual vacancy occurs in the ofce of the Chairman,
as the case may be, the appointment of Chairman, after the expiry of the said period, shall be
made by the Corporation, from amongst the members of the Standing Committee, at a
special meeting called and held for the purpose within ffteen days from the expiry of the said
period of thirty days..."
14.3 Looking to the scheme of the Act and the provisions as a whole and
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given the importance of the Standing Committee having the opportunity to appoint its
own Chairman in the frst instance within thirty days, we are of the view that the
expression "If for any reason the Standing Committee does not appoint the Chairman...
within thirty days..." must be read and understood as a reason attributable to the
Standing Committee. If there is inaction or indecision on the part of the Standing
Committee in appointing its own Chairman within thirty days, then the important
position of Chairman is determined by the alternative method of the Corporation
appointing a Chairman within 15 days thereafter. In our opinion, the expression 'if for
any reason' can have no application and cannot result in the Standing Committee
members being divested of this right when the reason for not appointing a Chairman is
in no way attributable to them and the appointment of the Chairman was admittedly
postponed at the instance of a direction / order of the State Government on account of
the Covid 19 Pandemic.
14.4 Further, the facts of the present case make it clear that the reason for the
Chairman not being appointed by the members of the present Standing Committee
cannot justify the loss of this right and opportunity within Section 21(5) of the Act. As
noted above, signifcantly, on 8th April, 2021 the Municipal Secretary of the
Ulhasnagar Municipal Corporation, issued a Notice for holding elections for
appointment of the Chairman on 15th April, 2021. It is therefore clear that the Standing
Committee has acted with dispatch and a date for electing its own Chairman well
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within the stipulated period of thirty days was fxed. On the very next day, i.e., 9 th
April, 2021, the State Government issued direction and notice to the Collector and all
Municipal Corporations to postpone the elections of Chairman until further orders on
account of the Covid-19 Pandemic. On the same day, the Collector then issued a
notice to Municipal Corporations, including the Ulhasnagar Municipal Corporation,
directing that the election of Chairman be postponed on account of the State
Government order. Consequently, on 12th April, 2021 the Ulhasnagar Municipal
Corporation issued a direction or order to its members stating that the election of
Chairman stands postponed.
14.5 We are of the view that the elections of Chairman by the members of the
Standing Committee could not have been postponed by the Statement Government on
9th April, 2021. We fnd merit in the submission that there is no legal basis or authority
to issue such a specifc direction to Municipal Corporations and the Collector. No
authority in law has been pointed out to us to justify the direction or notice of 9 th April,
2021. We have considered Section 451 of the Act and are of the view that it would have
no application in a situation such as this. It is this postponement, which was then acted
upon by the Collector and the Ulhasnagar Municipal Corporation that resulted in the
election of Chairman by the present Standing Committee not taking place on 15 th
April, 2021 as scheduled. We may clarify that even under the State Government Lock
Down Orders, some categories of essential activities were permitted, and it was for the
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Ulhasnagar Municipal Corporation and the Standing Committee to determine if the
election of appointment of a Chairman on 15 th April, 2021 could have proceeded by
way of a physical meeting of the Standing Committee members or if it could have been
done by some other means such as by a virtual meeting. It was not for the State
Government to specifcally order and direct its postponement.
14.6 Be that as it may, and even assuming that the State Government was
entitled to issue the direction of 9 th April, 2021 to postpone the election of Chairman,
that cannot be attributable to the Standing Committee. Accordingly, the time lost in
appointing a Chairman of the Standing Committee cannot result in Section 21(5)
being invoked to result in the members of the Standing Committee losing their
entitlement to appoint their own Chairman under Section 21 of the Act. It stands to
reason that even if the State Government had the power to issue the order and
direction of 9th April, 2021, then that time must be excluded from determining the
thirty-day period especially when the State Government order of 9th April, 2021 speaks
of postponing the appointment of Chairman by the Standing Committee itself. For
this reason, also, we do not fnd any merit in the submission of Shri Kohli and Shri
Limaye that due to a delay of thirty days, the members of the reconstituted Standing
Committee have lost their right and entitlement to appoint a Chairman from amongst
themselves.
14.7 Lastly, it is to be noted that if the State Government has clarifed that the
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order or direction of 6th May, 2021 (which was also on account of the Covid-19
Pandemic) is not to be applicable to the Ulhasnagar Municipal Corporation, then the
9th April, 2021 order or direction ought not to continue to apply to those Standing
Committees that were reconstituted before the 6 th May, 2021 direction. In our view,
the Standing Committee as reconstituted on 1 st April, 2021 must be allowed to
function in accordance with Section 21 of the Act and to appoint its own Chairman.
14.8 For the reason stated above we answer the Issue No. 2 in the negative.
Prayer (b) of Writ Petition St. No. 10801 of 2021 is allowed. We direct that a meeting
of the Standing Committee to appoint its Chairman should be held within 15 days
from the date of pronouncement of this Order. Such meeting may be a physical
meeting or failing that and subject to there being no prohibition in the applicable
Rules, the meeting for appointment of Chairman by the Standing Committee may be
held as a virtual meeting. Since the reliefs in Writ Petition St. No. 10828 of 2021 are
similar to those in Writ Petition No. 10801 of 2021, we are not considering them
separately as that Petition is efectively allowed by the Order in Writ Petition St. No.
10801 of 2021.
15. The above Writ Petitions are accordingly disposed of with no Order as
to costs.
(SURENDRA P. TAVADE, J.) (S.J. KATHAWALLA, J.)
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