- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7645 OF 2007 Ulhas Vasantrao Bagul @ Aba Bagul ) Adult, Indian Inhabitant, residing at ) 12, Shiv Darshan, Parvati, Pune-411 009 ) ...Petitioner V/s. 1. Pune Municipal Corporation, ) A Corporation duly incorporated ) under the provisions of the Bombay ) Provincial Municipal Corporation ) Act, 1949 having its office at Shivaji ) Nagar, Pune-411 005. ) 2. The Commissioner, ) Pune Municipal Corporation, having ) its office at Shivaji Nagar, Pune 411005 3. Smt. Rajlaxmi Bhosale, ) Mayor, Pune Municipal Corporation ) Shivajinagar, Pune-411 005. ) 4. Vikas Madhukar Mathkari, ) Member/councilor, ) Pune Municipal Corporation, residing) at 840, Shivaji Nagar, BMC Road, ) Pune-411 004. ) - 2 - 5. The Divisional Commissioner, ) Pune Division, Pune ) 6. The State of Maharashtra ) ...Respondents. Mr. A. Y. Sakhare, Sr. advocate a/w Mr. R. D. Soni i/b M/s. Ram & Co. for the petitioner. Mr. R. G. Ketkar, for the respondent Nos. 1 and 2. Mr. S. M. Gorwadkar, for the respondent No.3. Mr. Y. S. Jahagirdar, Sr. Advocate i/b Subhash Jadhav, for the respondent No.4. Mr. M. P. Deshpande, AGP for the respondent Nos. 5 & 6. CORAM: S. B. Mhase & A.A. KUMBHAKONI, JJ. DATE OF RESERVING: 16 th September 2008 DATE OF PRONOUNCING: 24 th October 2008 PC 1. This petition is yet another case brought to this Court questioning recognition by a Mayor of a Municipal Corporation of a Municipal Councilor as “a Leader of Opposition”. The petitioner also seeks writ of mandamus against the Mayor to recognise the petitioner, in place of the contesting respondent as a leader of opposition. - 3 - 2. The facts of the case are very few and can be set out as under- . The 1st respondent herein is the Municipal Corporation of the City of Pune, (hereinafter referred to as “the Corporation” for the sake of brevity) incorporated under the provisions of Bombay Municipal Corporation Act, 1949 (hereinafter referred to as the “said Act”, for the sake of brevity). The 2nd respondent is the Commissioner of the said Corporation. 5th respondent is the Divisional Commissioner of Pune Revenue Division, Pune and the 6th respondent is the State. 3. The general elections for electing counselors, of the said Corporation was conducted on 14th February, 2007. The petitioner, 3rd & 4th respondents were elected as the counselors at this election. The total strength of counselors of the said Corporation is 144. The respective strength of counselors of various political parties is admittedly as under - i) 41 National Congress Party (NCP) ii) 36 Indian National Congress (INC) iii) 25 Bharatiya Janata Party (BJP) iv) 20 Shiv Sena (SS) v) 08 Maharashtra Navnirman Sena (MNS) vi) 14 Independents (Ind.) 144 Total. The petitioner was elected as counselor from the INC. The - 4 - 3rd respondent was elected from NCP and the 4th respondent was elected from BJP. 4. Admittedly, after the aforesaid elections the NCP along with 5 independent counselors registered Aghadi/Front with the 5th respondent the Divisional Commissioner under Section 31A of the said Act. Thus, total strength of this Aghadi of NCP works out to 46. Similarly, one more Aghadi/front was registered by the INC by including 8 independent counselors, thus, making total of this Aghadi/front of INC as 44. 5. In terms of section 19 of the said Act, at the first meeting after the aforesaid General Elections, the 3rd respondent was elected as the Mayor. One Mr. Mokate (who is not a party to the present petition) belonging to SS, was elected as Dy. Mayor. Both of them secured 67 votes. 6. On 16th March 2007 the President of INC by way of written communication sought recognition of the petitioner as a leader of opposition. In this communication it is stated that Aghadi/front has been formed by INC along with 8 independent with total strength of 44 counselors. It is stated that BJP and SS had not formed alliance, in as - 5 - much as the elections of the said Corporation are concerned. It is submitted that NCP counselor has been elected as a mayor and therefore, INC with 8 independent counselors who have formed the aforesaid Aghadi constitute 'the party in opposition having greatest numerical strength' and therefore, they are entitled to have their leader, the petitioner, to be recognised as a leader of opposition. 6. On the same day a communication was submitted to the 3rd respondent jointly by leaders of SS and BJP staking their claim for appointment of 4th respondent as leader of opposition. It is claimed therein that BJP, SS have been working as an alliance in the State of Maharashtra for the last 27 years and that they had contested 2007 election of the said Corporation jointly. It is claimed that on account of their combined strength, which is total 45, they constitute 'the party in opposition having greatest numerical strength' and therefore, they are entitled to have their leader, the 4th Respondent, to be recognised as a leader of opposition. 7. The 3rd respondent Mayor however issued a letter dated 17th March, 2007 to the 4th respondent as leader of BJP recognising him as the leader of opposition. It is pertinent to note that, this communication is issued on the sole and only basis that BJP and SS have formed an - 6 - alliance and that their combined strength is 45. It is this decision and the communication which is in issue in the present matter. 8. The petitioner raised objection and also complained about the aforesaid impugned decision not only with the 3rd respondent Mayor, but also with the State Government. The 3rd respondent Mayor kept the matter pending with its office and kept on postponing consideration of the objections and/or complaints of the petitioner on one pretext or the other. However the State Government on 18th August, 2007 issued some kind of a resolution terming it as an order under section 451 of the said Act, and suspended the aforesaid impugned decision of the Mayor. 9. Immediately upon the aforesaid decision of the State Government, the petitioner submitted a letter dated 21st August, 2007 again staking his claim for being recognised as the leader of opposition. A Writ Petition No. 6272 of 2007 came to be filed in this Court, questioning the aforesaid decision of the State Government, basically on the ground that the State Government had no role to play in this controversy, and the decision of the State Government was clearly without jurisdiction and/or any authority in law. A Division Bench of this Court on 20th September, 2007 was pleased to admit the petition - 7 - and stay the operation and execution of the aforesaid resolution/decision of the State Government that is in issue in that petition. 10. During pendency of the aforesaid Writ Petition No. 6272 of 2007 the petitioner has filed the present Writ Petition, impugning directly the aforesaid decision of the Mayor. A Division Bench of this Court by its order dated 24th March, 2008 passed an order listing the present Writ Petition, after completion of the admission board, so that the petition can be disposed of finally at the admission stage itself. The parties were directed to complete the pleadings in the mean time. Since the parties have completed the pleadings, we have heard the matter at the admission stage itself for its final disposal on merits. 11. Hence, we grant Rule and make it returnable forthwith. Heard the counsel appearing on behalf of the parties, by consent for final disposal of the petition at the admission stage itself. 12. The grounds on which the petitioner has impugned the decision of the 3rd respondent recognising the 4th respondent as the leader of opposition can be summarised as under- . On the touch stone of democratic process only two separate - 8 - groups i.e. ruling party and opposition party are recognised as two pillars, on which the entire edifice of the democracy rests. The leader of opposition ought to be a person belonging to a group, having largest support from the opposition members. The impugned decision is in breach of provisions of section 19.IAA of the said Act and it wholly undemocratic as it cuts the very thread of democratic process, where two separate groups being opposition, ruling party are recognised and considered as pillars of governance. The alliance of BJP and SS was not recognised either pre-poll or post poll, in as much as the elections of the said Corporation are concerned. It was therefore wholly impermissible and illegal for the 3rd respondent were to consider the combined strength of BJP and SS for determining the issue of party in opposition and recognising the leader of BJP-SS combine as the leader of the opposition. 13. Affidavit in reply came to be filed by the Mayor, the 4th respondent, who is recognised as the leader of opposition by the impugned decision and by the State Government. In short the defences raised therein are as under- . The State Government has filed three affidavits, supporting the case of the petitioner. It is contended that NCP and Shiv Sena supported the candidate of NCP for being elected as mayor, whereas - 9 - the BJP remained neutral. The INC had sept up its candidate for being elected as Mayor who was defeated. It is further contended that INC is the opposition at the said Corporation, and therefore, it was necessary to recognise its leader as the leader of opposition. It is also further contended that BJP-SS did not register any alliance pre-poll or post poll, and therefore, the claim made by the 4th respondent as the leader of opposition on the basis of such non existing alliance could not have been accepted by the Mayor while taking the impugned decision. It is further pointed out that under section 31-A of the said Act, there were only two fronts/Aghadis, which were recognised viz. one was of the INC with 44 strength and the other one was of the NCP with 48 strength. The BJP-SS have not formed such Aghadi and therefore, their combined strength could not have been considered. 14. The third respondent has opposed the petition by alleging two issues as to the maintainability of the petition and as to Our jurisdiction to try, entertain and decide the issue raised in this petition. The defence of the 3rd respondent is that the issue raised in the petition is a political question, which is not justiciable. In as much as the election of the Mayor is concerned, it is pointed out that under section 19 of the said Act, irrespective of relative strength of all political parties, anybody can get elected as counselor and further as a Mayor. - 10 - Therefore, election of Mayor cannot be considered as a criteria for deciding the status of any political party in the house, much less the ruling or opposition party, as such. It is contended that BJP-SS had pre-poll alliance and that this alliance has highest numerical strength in the House, and therefore, 4th respondent was rightly declared as the leader of opposition, who was set up by the said alliance. 15. The 4th respondent has opposed the petition on almost similar lines of defence as have been taken up by the State, as also the 3rd respondent. In addition thereto, it is contended that “the leader of the opposition” term is required to be considered in the light of Section 2 of the Maharashtra Legislatures Salaries & Allowances Act, 1978. On that basis it is the case of the 4th respondent that explanation appended to section 19-IAA and the one to section 2 aforesaid make it clear that recognition of the leader of opposition by the Mayor is final and conclusive, and therefore, it was beyond the scope of judicial review under Article 226 of the Constitution. It is contended that BJP and SS fought the elections in issue on the basis of common agenda and that in view of their pre-poll alliance, the 4th respondent was rightly declared as the leader of the opposition by taking into consideration the collective strength of BJP and SS. Certain documents have been annexed to the affidavit of 4th respondent, in support of the claim that - 11 - BJP and SS had formed pre poll alliance for contesting the elections in issue, held on 14th February, 2007. 16. The learned counsel appearing on behalf of the 1st respondent has tendered certain documents for our perusal, which include an important document of election notification which gives the list of 144 elected counselors of the 1st respondent the Corporation, specifically mentioning the political party which had sept up each of them. A perusal of the same confirms the aforesaid table set out at the out set of this judgement indicating the relative strength of the respective political parties in the house of the said Corporation. 17. The issue raised in the present petition is truly not as to who is “the leader” but is as to which is “the party in opposition having greatest numerical strength” in the House of the first respondent Corporation. For determining this issue, we must first consider the provisions of section 19-IA and 19-IAA of the said Act, which reads thus- “19.IA. Leader of House :- [1] An elected Councillor who is, for the time being, the Leader of the Party having the greater numerical strength and recognised 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 - 12 - regard to the status of the Party, recognise 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.IAA 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, recognise 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 disconclusive. [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.” 18. The provisions of the Maharashtra Local Authority Members' Disqualification Act, the Rules framed thereunder and also the orders issued thereunder also may be relevant. In view of the various decisions of Division Benches of this Court, which are referred to here under, it may not be necessary for us to reproduce the same herein, as in our view it will unnecessarily over burden this judgment. Both the contesting parties relied on various reported decisions, summary of which with our comments as to their - 13 - application, in the facts and circumstances of this case and especially to the issue involved herein are set out hereunder. (i) Abdul Latif Muhammed Khatri Vs. State of Maharashtra, reported in 2006(1) Mh.L.J. 786 and Sudhakar Waman Chavan Vs. State of Maharashtra reported in 2003(3) Mh.L.J.631 - These judgments really have no role to play in as much as the present case is concerned, as the issue involved therein was entirely different from the one involved in the present case. In those cases, the Court was really concerned with the question as to whether State Government can issue any direction in regard to the recognition of the leader of the opposition in the Municipal Corporation and as to whether the jurisdiction to decide such a question vests with the Mayor of the Corporation alone. In our view, in the present petition this issue does not arise at all. May be that the said issue will be relevant for deciding aforesaid Writ Petition No. 6272 of 2007, which is still pending in this Court. We therefore do not find appropriate to make any comment in that regard in this judgement. (ii) Sunil Kotkar Vs. State of Maharashtra reported in 2004(4) Mh.L.J. 375. In this case almost similar issues were involved and raised as are raised in the present case. However, it is pertinent to note that there is a clear distinguishing feature of - 14 - this case that is absent in our case. In that case two political parties had equal strength of counselors and the Mayor in his wisdom and discretion, as contemplated by the aforesaid Explanation to section 19.IAA recognised leader of one of such party, amongst the two parties having equal strength, as the leader of opposition. The learned Division Bench considered the entire legal aspect of the matter and held that in the limited judicial review available to this Court under Article 226 of the Constitution, the Court can not go and test the political issues, and therefore, was pleased to dismiss the petition. . At the outset we must note that this judgment will have no applicability whatsoever to the facts of our case because in that case explanation to section 19.IAA was attracted as there were two political parties in opposition having same numerical strength. In our case, we do not have two political parties with equal strength, and therefore, the aforesaid explanation has no role to play at all. It is pertinent to note that in case of a situation to which aforesaid explanation applies, when a Mayor takes a decision for recognition of the Leader of Opposition, the Mayor is to have regard to the “status of parties” amongst the two parties having equal strength of counselors. The explanation further states that such a recognition by the Mayor shall be final and conclusive. The finality and conclusiveness with which the recognition - 15 - by the Mayor is clothed under the explanation, is not available to the recognition of a Mayor under sub-clause (1) of section 19.IAA of the said Act. In other words, the recognition by a Mayor of leader of opposition in a case where two or more political parties in opposition do not have same numerical strength, is not made final and conclusive under the said Act. . However, this Division Bench Judgment delivered in the case of Sunil Kotkar (Supra) deals extensively with the entire legal aspects of the matter and the case law on the subject which was then holding the field. We respectfully agree with the following conclusions drawn by the Division Bench, which are also applicable to our case :- ✔ In exercise of judicial review under Art. 226 of the Constitution of India, to judge the action of Mayor, this Court is concerned with reviewing not the merit of the decision in support of which the petition for judicial review is made, but decision making process itself. Thus, the jurisdiction of this Court is confined to : (i) Whether Mayor exceeded his power? (ii) has committed an error of law; (iii) reached a decision which no reasonable person would have reached; (iv) Whether he has abused his powers. ✔ The Gazette Notification issued in terms of Rule 39, Sub-rule (2) of the Election Rules, Schedule D of the Act being an authentic document can be considered to find out as to which political parties sponsored a Corporator in the elections of the Municipal - 16 - Corporation. ✔ Merely because two political parties have not sponsored candidates against each other in an election, it is not necessarily to drawn an inference that there was a pre-poll alliance and/or Aghadi or Yuti between them. The pre-poll alliance and/or Yuti and/or Aghadi is also a question of fact and has to be proved on the basis of legal evidence and even in a writ petition, such a fact can be proved by means of affidavits. However, we do not agree with the following observations of the learned Division Bench, made in the case of Sunit Kotkar (Supra) at page 23 that ..... “As in the definition of the Leader of Opposition in Maharashtra Legislature Salaries and Allowances Act referred the term the party in opposition to the State Government. Therefore, we have to consider the word Leader of the party in opposition which means leader of party in opposition in the House (Corporation).” . We may state here that the aforesaid observation of the learned Division Bench is per incurim of the legal position as is reflected by the judgment of the Supreme Court in the case of Union of India Vs. R.C. Jain & Ors. reported in (1981) 2 SCC 308 ( para 1) - 17 - that- This extract is taken from Union of India v. R.C. Jain, (1981) 2 SCC 308, at page 311 : “1. ........................The definition of an expression in one Act must not be imported into another. “It would be a new terror in the construction of Acts of Parliament if we were required to limit a word to an unnatural sense because in some Act which is not incorporated or referred to such an interpretation is given to it for the purposes of that Act alone” (per Loreburn, L.C. in Macbeth & Co. v. Chislett1). For the same reason we refrain from borrowing upon the definition of “local authority” in enactments such as the Cattle Trespass Act, 1871 etc. as the High Court has done. . However, this will not detain us in disposing of the petition in as much as the aforesaid observation has no role to play in the present case. A view taken one way or the other in this regard will not change the complexion of our conclusions drawn hereunder. (ii) Vishnu Mhetre vs. City of Akola Municipal Corporation, reported in 2004(5) Bom. C. R. 847. The issues considered by the learned Division Bench in this case are set out in paragraph 30 of the judgment. A perusal of which clearly demonstrates that in our case none of these issues are involved, and therefore, in our view this judgment will not be of any assistance to us in answering the questions raised in the present case. In that case, these issues arose out of situation where there was a slit in a political party, which is not a case before us. - 18 - (iv) Rohidas Shankar Patil Vs. Maytra Gilbert Mendosa reported in 2003(5) Bom. C.R. 600. The important feature of this case is that in this case there was no pre-poll alliance between INC and NCP. In that background, the learned Division Bench was called upon to decide a question as to whether INC can be said to be a party in opposition. In the facts of that case which it is observed that both NCP and INC contested the elections against each other in several wards. It was therefore, specifically observed that though Mayoress belonged to NCP and Dy. Mayor belonged to INC and though both secured equal number of votes, it cannot be held that both parties are parties in ruling. It was specifically observed that in politics there may be various considerations for parties to support a candidate of each other and that the Court of Law was will suited to resolve the questions which are considered by the political parties, keeping in mind the divorce factors. . In our view this decision of the Division Bench will squarely apply to the facts of our case. In our case also, it is the contention of the petitioner that 3rd respondent Mayor was elected from NCP and the Dy. Mayor was elected from