Bombay High Court
Sham Mansukhray Agrawal vs State Of Maharashtra And Ors on 9 May, 2022
Bench: A.A. Sayed, S. G. Dige
1/17
WP 2232 of 2021(1).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2232 OF 2021
...
Shyam M. Agarwal ...Petitioner
v/s.
State of Maharashtra & ors. ...Respondents
...
Mr.Ranjit Thorat, Sr.Advocate i/b Mainak Adhikary for the Petitioner.
Mr.Gautam J. Jain i/b Mr. Manoj J. Bhatt for Respondent No.2.
Mr.Ram Apte, Sr.Advocate a/w Mr. N.R.Bubna for Respondent No.3.
Mr.Mandar Limaye for Respondent No.4.
Mr.K.S.Thorat, AGP for the Respondent-State.
CORAM : A.A. SAYED &
S.G.DIGE, JJ.
DATED : 9 May 2022
ORDER: (Per A.A.Sayed, J.)
1 The above Writ Petition is filed by the Petitioner essentially challenging
the decisions of the Respondent No. 3-Mayor whereby the Petitioner has
been removed from the post of Leader of the House of the Respondent No.
2-Bhiwandi Nizampur City Municipal Corporation and later replaced by the
Respondent No. 4-Vikas Sakharam Nikam as a new Leader of the House.
2. The Respondent No.1 is the State of Maharashtra. The Respondent
No.2 is Bhiwandi Nizampur City Municipal Corporation (hereinafter referred
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to as "Respondent No. 2-Corporation"), Respondent No.3 is the Mayor of the
Respondent No. 2-Corporation. Respondent No. 4 is the newly appointed
Leader of the House of the Respondent No. 2-Corporation in place of the
Petitioner.
3. The Petitioner is an elected Councillor from Ward No.22-C of the
Respondent No. 2-Bhiwandi Nizampur City Municipal Corporation in the
elections held in the year 2017. On 22.01.2021, the Petitioner was appointed
as a Leader of the House of the Respondent No. 2-Corporation by the
Respondent No. 3-Mayor.
4. The case of the Petitioner is as follows:
(i) Pursuant to the letter dated 16.12.2020 of Shri Hanuman
Ramu Chaudhari, the group leader of the Bharatiya Janta Party
(BJP) in the Respondent No. 2-Corporation informing the
Respondent No.3-Mayor the intention of the party to appoint the
Petitioner as the Leader of the House under section 19-1A of the
Maharashtra Municipal Corporation Act,1949 (hereinafter referred
to as "the said Act"), the Petitioner was declared as the Leader of
the House by the Respondent No.3-Mayor in the meeting held on
22.01.2021.
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(ii) On 12.03.2021, in the General Body Meeting of the
Respondent No. 2-Corporation, Respondent No. 3-Mayor
declared Smt. Kamini Ravindra Patil, BJP Councillor from Ward
No. 18(A), as the new Leader of House in place of the Petitioner.
By the impugned letter dated 15.03.2021, the Respondent No. 2-
Corporation informed the said decision of the Petitioner. However,
Smt. Kamini Ravindra Patil declined to accept the post of Leader
of the House and by her letter dated 15.03.2021 addressed to the
Respondent No. 3-Mayor, asserted that it was the BJP's decision
to appoint the Petitioner as the Leader of the House and
requested to continue the Petitioner as the Leader of the House.
(iii) By the impugned letter dated 16.03.2021 addressed by the
Respondent No. 2-Corporation, the Petitioner was informed about
the decision of appointment of Respondent No.4-Vikas Sakharam
Nikam as the Leader of the House of the Respondent No. 2-
Corporation.
(iv) The Congress Party was having the greatest numerical
strength in the Respondent No. 2-Corporation. However, in view
of the cross-voting by a faction of 18 Councillors of the Congress
Party, the Congress Party has chosen to sit in the opposition. Shri
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Javed Dalvi Gulam Mohammad, belonging to the Congress Party
was appointed as the Leader of the Opposition in Respondent No.
2-Corporation as per section 19-1AA of the said Act and was
recognized by the Respondent No. 3-Mayor as the Leader of the
Opposition. Therefore, the Congress Party is not entitled to have a
say in the appointment of the Leader of the House.
(v) Under section 19-1A of the said Act, it is the duty of the
Respondent No.3-Mayor to appoint the Leader of the House of the
party having the greatest numerical strength and the power to
choose the candidate for the same lies only with the party and the
Respondent No.3-Mayor has no authority to remove the Petitioner
as Leader of the House without the consent of the party i.e. the
BJP in the present case, which is the ruling party. Any change of
the leader of the Municipal party is to be effected by the party and
not by any outsider. The decision of the Respondent No. 3-Mayor
is on the basis of alleged personal remarks by Petitioner against
the Respondent No. 3-Mayor and her family. Therefore, the
decision of the Respondent No.3-Mayor to remove the Petitioner
from the post of the Leader of the House is illegal and arbitrary.
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5. On the other hand, the case of the Respondent No. 3-Mayor and the
Respondent No. 4 (newly appointed Leader of the House) is that the BJP is
not the party having the largest numerical strength in the House. The party
having the largest numerical strength is the Congress Party. By letter dated
15.03.2021, the group leader of the Congress Party nominated and
supported the Respondent No. 4 for the post of Leader of the House. The
Petitioner is nominated and supported by BJP having the strength of 20
Councillors, whereas the Respondent No. 4 is nominated and supported by
Congress Party and Konark Vikas Aghadi having a total strength of 51
Councillors in the House of 90 Councillors. It is in these circumstances, the
decision was taken to appoint the Respondent No. 4 as the Leader of the
House of the Respondent No. 2-Corporation and the action was in
accordance with law and in conformity with the provisions of the said Act.
6. We have heard learned Senior Counsel for the Petitioner, learned
Counsel for Respondent No. 2-Corporation, learned Senior Counsel for the
Respondent No. 3-Mayor and learned Counsel for the Respondent No. 4.
7. Before considering the challenge raised in the Petition, it is necessary
to note the position of the successful elected Councillors of various political
parties in the Respondent No. 2-Corporation after the elections in the year
2017. It is extracted hereunder:
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Sr.No. Name of Party No. of Councillors
8. The Petitioner was declared as the Leader of the House by the
Respondent No.3-Mayor on 22.01.2021. On 26.02.2021, the Respondent
No. 3-Mayor in a letter addressed to the President, BJP, stated that after
being appointed as the Leader of the House, the Petitioner has started
defaming her and her family members thereby bringing disrepute the post of
the Leader of the House. It was further stated in the said letter that in the
next General Body Meeting, the Respondent No. 3-Mayor will remove the
Petitioner from the post of Leader of the House. On 12 th March, 2021, in the
General Body Meeting of the Respondent No. 2-Corporation, the
Respondent No. 3-Mayor declared that she is appointing Smt. Kamini
Ravindra Patil belonging to BJP as a Leader of the House in place of the
Petitioner. The said Smt. Kamini Ravindra Patil, however, by her letter dated
15.03.2021 to the Respondent No. 3-Mayor stated that she cannot accept
the post of Leader of the House as BJP has chosen the Petitioner as the
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Leader of the House. The Respondent No. 3-Mayor thereupon appointed the
Respondent No. 4 as the Leader of the House on 16.03.2021.
9. The contention on behalf of the Petitioner is that the Respondent No.
3-Mayor without having any authority, has illegally appointed the Respondent
No. 4 as the Leader of the House and the same is communicated to the
Petitioner vide the impugned letter dated 16.03.2021 of the Respondent No.
2-Corporation. On the other hand, the contention on behalf of the
Respondent No. 3-Mayor and Respondent No. 4 is that the Respondent No.
4 is appointed as a Leader of the House in view of the letter dated
15.03.2021 of the group leader of the Congress Party supporting the
candidature of the Respondent No. 4. It is contended that the Respondent
No. 4 enjoys the support of the Congress Party and Konark Vikas Aghadi
having strength of 58 Councillors in the House consisting of 90 Councillors.
10. The issue for consideration in the Petition is whether the Respondent
No. 3-Mayor has committed any illegality or has acted contrary to the
provisions of the said Act in removing the Petitioner as the Leader of the
House and appointing the Respondent No. 4 as the Leader of the House.
For deciding the controversy, it would be necessary to advert to sections 19-
1A and 19-1AA of the said Act. The said sections are extracted hereunder:
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19-1A. Leader of House -
(1) An elected Councillor who is, for the time being, the Leader
of the Party having the greatest numerical strength and
recognized as such by the Mayor shall be the Leader of the
House.
Explanation.--When there are two parties in ruling having
the same numerical strength, the Mayor shall, having regard to
the status of the Party, recognize the Leader of any one of such
parties to be the Leader of the House.
(2) There shall be paid to the Leader of the House such
honoraria and allowances and other facilities as may be provided
by regulations made in this behalf by the Corporation.
19-1AA - Leader of Opposition -
(1) An elected Councillor who is, for the time being, the Leader
of the Party in opposition, having greatest numerical strength and
recognised as such by the Mayor, shall be the Leader of the
Opposition.
Explanation.-- Where there are two or more parties in the
opposition, having the same numerical strength, the Mayor shall,
having regard to the status of the party, recognize the Leader of
any one of such parties as a Leader of the Opposition for the
purposes of this Act and such recognition shall be final and
conclusive.
(2) There shall be paid to the Leader of the Opposition such
honoraria and allowances and other facilities as may be provided
by regulations made in this behalf by the Corporation.
11. It is an admitted position before the Court that the Congress Party
having 47 Councillors in the Respondent No. 2-Corporation has the greatest
numerical strength in the Respondent No. 2-Corporation. It is also an
admitted position that in view of the cross-voting by a faction of 18
Councillors belonging to the Congress Party, the Congress Party alongwith
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12 Councillors of Shiv Sena decided to sit in opposition in the Respondent
No. 2-Corporation and pursuant to the request of Congress Party, the
Respondent No. 3-Mayor recognized Shri Dalvi Javed Gulam Mohammad
belonging to the Congress Party as a Leader of the Opposition. The BJP
with 20 Councillors thus has the highest numerical strength and is the party
in ruling.
12. On plain reading of section 19-1A it is apparent that the Leader of the
Party having greatest numerical strength is to be appointed as the Leader of
the House. The Congress Party, which has decided to sit in opposition and at
whose instance and request the Respondent No. 3-Mayor has recognized
Shri Dalvi Javed Gulam Mohammad belonging the Congress Party as a
Leader of the Opposition, can have no role or say in the matter of
appointment of the Leader of the House.
13. In Sanjay Devram Bhoir & Anr vs. Moyor, Thane Municipal
Corporation, the Division Bench of this Court (Coram: S. A. Bobde &
Mridula Bhatkar, JJ.) in its decision dated 6 th July, 2012 in WP/3732/2012
while construing section 19-1AA which deals with the Leader of the
Opposition, has held as under:
"7. On a plain reading of Section 19-IAA, we find that the mandate
of the section is that the Leader of the party in opposition which
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has the greatest numerical strength alone must be recognized by
the Mayor as a Leader of the opposition. On a true construction of
the entire section, including the explanation, leads to the
conclusion that the provision casts a duty on the Mayor to
recognize the Leader of the party in opposition by the only criteria
laid down by the section i.e. the greatest numerical strength of a
party in opposition. Thus, the section casts an obligation on the
Mayor to determine, firstly, which party in opposition has the
greatest numerical strength and then recognize the Leader of that
party as a Leader of the opposition. The law in plain terms does
not give the Mayor any choice as to who should be recognized as
a Leader of the opposition but, on the other hand, mandates the
recognition of a Leader of an opposition party which has the
greatest numerical strength. In the present case, therefore, the
contention on behalf of the petitioners that the Mayor ought to
have chosen the Leader of NCP as the Leader of opposition since
it is that party which had the greatest numerical strength deserves
to be accepted."
14. Section 19-1A and section 19-1AA are couched in same language.
Though the Division Bench in the above case was construing section 19-1AA
which deals with the appointment of Leader of the Opposition, the same
principle would apply to section 19-1A which deals with the appointment of
Leader of the House. The Division Bench while construing the section 19-
1AA has held that section 19-1AA casts a duty on the Mayor to recognize the
Leader of the party in opposition by the only criteria laid down by the said
section i.e. the greatest numerical strength of a party in opposition and that
the said section casts obligation upon the Mayor to determine firstly which
party in opposition has the greatest numerical strength and then recognize
the Leader of that party as the Leader of the Opposition and the law does not
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give Mayor any choice as to who should be recognized as a Leader of the
Opposition. Applying the principle as laid down by the Division Bench, we
hold that section 19-1A also casts a duty and obligation upon the Mayor to
determine firstly which party in ruling has the greatest numerical strength and
then recognize the Leader of that party as the Leader of the House and the
law does not give the Mayor any choice or discretion as to who should be
recognized as a Leader of the House.
15. In Anis Khalil Momin Vs Commissioner, Municipal Corporation for
the City of Bhiwandi Nizampur & Ors. 2005(1) ALL MR 1, the Division
Bench of this Court (Coram: A. P. Shah & S. U. Kamdar, JJ) has considered
a case where the Petitioner therein belonged to the Samajwadi Party which
was the largest party in numerical strength in the opposition and held that the
Petitioner therein ought to have been recognized as the Leader of the
Opposition in Bhiwandi Nizampur Municipal Corporation (the same
Corporation as Respondent No. 2 herein). The Division Bench has referred
to the provisions of Maharashtra Local Authority Members Disqualification
Act, 1987. The Division Bench followed the decision of another Division
Bench (Coram: CJ & Dr. D. Y. Chandrachud, JJ) in Rohidas Shankar Patil
Vs. Smt. Mayra Gilbert Mendosa & Ors, 2003(2) ALL MR 792. In
paragraph nos. 11 to 13, the Division Bench has held as follows:
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11. The learned counsel for the petitioner drew our attention to
an unreported decision of this Court delivered by the Division
Bench comprising of the Hon'ble the Chief Justice and Dr D.Y.
Chandrachud J, in Writ Petition No. 6798 of 2002 (Rohidas
Shankar Patil vs Smt. Mayra Gilbert Mendosa and ors) 2003(2)
ALL MR 792. That was also a case of recognition to the post of
Leader of the Opposition. In that case, the INC was the second
highest in numerical strength and the member of the said party
was recognised as the Leader of the Opposition. It was
contended that there was an alliance or understanding between
the Nationalist Congress Party and INC and, therefore, INC
should be regarded as a party in ruling along with the Nationalist
Congress party. The learned Chief Justice speaking for the
Bench observed:
"21. The question which we are called upon to decide is,
whether INC can be said to be party in opposition and
whether respondent no.4 could have been recognised as
leader of the party in opposition. According to the petitioner,
INC is a party in ruling and party in ruling cannot be
considered and recognised as party in opposition. In the
circumstances party in opposition can be any party other
than NCP and INC. From those parties, Leader of
Opposition can be recognised. Now, considering other
parties i.e. parties in opposition, BJP is the only party which
is having greatest numerical strength. The said party,
therefore, ought to have been recognised as such by the first
respondent and the petitioner ought to have been
recognised as leader of the party in opposition."
"22. We are unable to uphold the contention of the learned
counsel. So far as pre-election aghadi, yuti, front or alliance
is concerned, it has been clearly refuted and denied by the
respondents. Affidavits have been filed by respondent nos.1,
3 and 4 asserting that the allegation levelled by the petitioner
is incorrect and misleading. It is further stated that, there was
no formal pre-election alliance between NCP and INC. That
apart, both the parties contested the election against each
other in several Wards. In the circumstances, it cannot be
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said that there was pre-election alliance between NCP and
INC."
(emphasis supplied)
12. Mr Jahagirdar and Mr. Damle, learned counsel appearing
for respondent nos. 2 and 3 strenuously contended that the
Samajwadi Party was a party in ruling and, therefore, it cannot
get recognition as a Leader of Opposition. In order to support this
submission, it was argued that there can be more than one party
in ruling and such a situation has been recognised even by the
Legislature. Explanation to section 19-1A clearly deals with the
situation when there are two parties in ruling having the same
strength by laying down how Mayor should be elected. The
learned counsel are not wrong in interpreting the explanation.
However, the question is whether there is any material on record
to substantiate the claim that there was alliance between the INC
and Samajwadi Party. In the absence of any such material we are
unable to hold that INC and Samajwadi Party should be regarded
as parties in ruling as contemplated by section 19(1)(A). It is an
admitted position that there was no aghadi or pre-election
alliance between these two parties and in fact in certain Wards
both the parties contested the election against each other. The
provisions of the Maharashtra Local Authority Members
Disqualification Act, 1986 specifically rules out any post alliance
between the political parties. In any event, there is not an iota of
material to show that the INC and Samajwadi Party had post poll
alliance. We have, therefore, no hesitation to hold that Samajwadi
Party cannot be treated as a party in ruling.
13. The learned counsel for respondent nos. 2 and 3 urged that
earlier one Javed Dalvi was appointed as Leader of Opposition
and this appointment was not challenged by the Samajwadi Party
and this shows that Samajwadi Party had an alliance with INC.
We are not impressed by the submission of learned counsel. It is
seen from the record that respondent no. 2 had initially appointed
of Santosh Shetty was challenged in this court and was stayed.
Thereafter respondent no. 2 again appointed one Javed Dalvi
who was also elected as an independent. The appointment of
Javed Dalvi was also not in consonance with section 19(1)(AA).
Merely because the appointment of Javed Dalvi was not
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challenged by the Samjawadi Party does not lead to the
conclusion that the Samajwadi Party was a party in ruling. The
learned counsel also contended that in the letter of request the
Samajwadi Party has not specifically mentioned that it is a party
sitting in opposition. The submission is stated only to be rejected
by that the Samajwadi Party specifically asked the Mayor to give
recognition to the petitioner as Leader of the Opposition. So it is
obvious that the Samajwadi Party was claiming that it was party
in opposition.
16. In the present case the party in ruling in the Respondent No. 2-
Bhiwandi Nizampur City Municipal Corporation comprises of 20 Councillors
from BJP, 4 Councillors from Konark Vikas Aghadi, 4 Councillors from RPI, 2
Councillors from Samajwadi Party and 1 independent Councillor. The BJP
having 20 Councillors has the greatest numerical strength. Hence, only the
leader of the BJP who is nominated by BJP can be appointed as the Leader
of the House. The Respondent No.4 who belongs to Konark Vikas Aghadi
cannot be appointed and hold the post of Leader of House on the basis of
the support given by Congress Party which is the party in opposition. It is
required to be noted that the Congress Party being the party in opposition
having the greatest numerical strength has already nominated Shri Javed
Dalvi Gulam Mohammad who is a member of the Congress Party, as Leader
of the Opposition and who has accordingly been recognized and appointed
the Leader of Opposition by the Respondent No. 3-Mayor. The Congress
Party therefore cannot have any role or say in the appointment of the Leader
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of House. It is inconceivable that the Party in Opposition and whose member
is appointed as Leader of the Opposition will dictate as to who should be
appointed as Leader of House as that would be completely contrary to the
principles of democratic setup and polity. The Respondent No. 3-Mayor
ought not to have taken congizance of the letter adted 15.03.2021 issued by
the group leader of the Congress Party supporting the candidature of
Respondent No. 4 as Leader of the House.
17. It is pointed out on behalf of the Petitioner that the decision to remove
the Petitioner from the post of Leader of House is taken unilaterally by the
Respondent No.3-Mayor as there was no discussion in the General Body
Meeting held on 12 March, 2021 for the removal of the Petitioner from the
post of Leader of House. It is further pointed out on behalf of the Petitioner
that the BJP which is having the greatest numerical strength and party in
ruling is supporting the Petitioner and has objected to decision of the
Respondent No.3-Mayor to remove the Petitioner from the post of Leader of
House vide letter dated 15th March, 2021 interalia on the ground under the
provisions of the Act, the Respondent No.3-Mayor has no authority to
remove the Petitioner from the post of Leader of the House.
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18. In the three judgments referred to earlier, viz. Sanjay Devram Bhoir &
Anr vs. Mayor, Thane Municipal Corporation (supra), Khalil Momin vs. Com-
missioner, Municipal Corporation for the City of Bhiwandi Nizampur & Ors
(Supra) and Rohidas Shankar Patil Vs. Smt. Mayra Gilbert Mendosa & Ors
(Supra), the Division Bench in similar circumstances has entertained the
challenge to the decision of the Mayor. We therefore do not see any merit in
the contention of learned Counsel for the Respondent Nos. 3-Mayor and Re-
spondent No. 4 that the Petitioner ought to have invoked the remedy under
section 451 of the said Act, particularly when we find that there are no dis-
puted question of facts involved. Moreover, we find that the issue raised in
the Petition is essentially a point of law.
19 We are of the view that the decisions of the Respondent No. 3-Mayor
is removing the Petitioner from the post of Leader of the House and appoint-
ing the Respondent No. 4 as Leader of the House is arbitrary and contrary to
section 19-1A of the Maharashtra Municipal Corporation Act, 1949. Besides,
from the letter dated 26.02.2021 of the Respondent No. 3 - Mayor, we find
that the decision of Respondent No.3 - Mayor was taken for extraneous
reasons.
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20. In light of the above discussion, the impugned decisions of the
Respondent No.3-Mayor to remove the Petitioner from post of Leader of
House and appointing Respondent No.4 as Leader of House cannot be
sustained and deserve to be set aside. We, therefore, quash and set aside
the said decisions of Respondent No. 3-Mayor and the impugned letters
dated 15.03.2021 & 16.03.2021 of the Respondent No.2-Corporation. In view
of the subseqent events, which have been pointed out by learned Counsel
for the Respondent No.2-Corporation at the time of prouncment of this
judgement, no forther directions are necessiated.
21. The Petition is allowed in the aforesaid terms with no order as to costs.
Digitally signed by
ANANT ANANT KRISHNA
KRISHNA NAIK
Date: 2022.05.10
NAIK 18:33:49 +0530
(S.G. DIGE, J.) (A.A. SAYED, J.)
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