Kambli 1 wp2005.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2005 OF 2011 ... Shashikant Haribhau Jadhav ...Petitioner v/s. State of Maharashtra & ors. ...Respondents ... Mr.A.V.Anturkar with Mr.S.S.Deshmukh for the Petitioner. Mr.Vijay Patil, GP for Respondent No.1. Mr.V.A.Gangal with Mr.A.T.Gade for Respondents Nos. 2 & 4. Mr.S.A.Acharya for Respondent No.3. Mr.A.A.Kumbhakoni i/b Ms.Prabha Badadare for Respondent No.5. ... CORAM: D.K.Deshmukh & Anoop V. Mohta, JJ DATED: 23rd March, 2011 P.C.: 1. By this petition the Petitioners challenge the election/nomination of the Respondent No.5- Shri Meherliya Pratap Rohtas as a member of the Standing Committee of the Respondent No.2-Corporation. Section 31A of the Bombay Kambli 2 wp2005.11 Provincial Municipal Corporation Act, 1949 provides that the Corporation shall nominate on the Standing Committee the members representing different political groups. Sub-section (2) of Section 31A lays down that in the process of nomination the corporation has to consult the Leader of the House, the Leader of Opposition and the Leader of each party or group. According to the Petitioners, the Petitioner No.1 Shri Shashikant Haribhau Jadhav was nominated as the Leader of the Maharashtra Navnirman Sena (hereinafter referred to as the “MNS”) by Resolution dated 4-11-2009 passed by the General Body of the Corporation. It is the case of the Petitioners that in the process of nomiantion of two nominees of the MNS as members of the Standing Committee for the year 2009 and 2010 the Petitioner No.1 was consulted by the Corporation. It appears that so far as the year 2011 is concerned, on 23-2-2011 the Mayor of the Corporation addressed a letter to the Secretary of the Corporation informing him that the meeting of the Corporation is convened on 1-3-2011 at 11.30 a.m. Before that meeting is held, for nomintation of the members on the Standing Committee, Kambli 3 wp2005.11 Group Leaders of the different political groups in the Corporation will have to be consulted, and therefore, a meeting of the Group Leaders should be convened at 10 a.m. On 1-3-2011. Accordingly, on 25-2-2011, the Secretary addressed letters to the Group Leaders including the Petitioner No.1 informing him that a meeting of the Group Leaders in the process of consultation for nomination of members on the Standing Committee is convened at 10 a.m. On 1-3-2011, for which he was requested to remain present. It is the case of the Petitioners that accordingly that meeting was attended by the Petitioner No.1 and a letter was handed over to the Corporation dated 1-3-2011 suggesting the names of the Petitioner No.2 Sau Sheela Tulshiram Bhagwat and the Petitioner No.6 Sau. Sunanda Kashinath Kharote for nomination as members of the Standing Committee. However, in the meeting of the General Body of the Corporation, the Mayor informed the General Body that so far as the political party MNS is concerned, apart from Sau.Sheela Bhagwat, the Respondent No.5 has been nominated. The General Body acting on the information given Kambli 4 wp2005.11 by the Mayor nominated Sau.Sheela Bhagwat and Respondent No.5 as members of the Standing Committee. By this petition, the Petitioners challenge the nomination of the Respondent No.5 as the Member of the Standing Committee. 2. The short submission of the learned Counsel for the Petitioners is that the nomination of the Respondent No.5 as a member of the Standing Committee is contrary to the provisions of Section 31A of the Bombay Provincial Municipal Corporation Act, 1949. Section 31A reads as under: “31A. Appointment by nomination on Committees to be by proportional representation- (1) Notwithstanding anything contained in this Act or the rules or bye-laws made thereunder, in the case of the following Committees, except where it is provided by this act, that the appointment of a Councillor to any Committee shall be by virtue of his holding any office, appointment of Councillors to these Committees, whether in regular or casual vacancies, shall be made by the Corporation by nominating Councillors in accordance with the provisions of sub-section (2):- (a) Standing Committee; (b) Transport Committee; (c) Any special Committee appointed under Section 30; (d) Any ad hoc Committee appointed under Kambli 5 wp2005.11 Section 31. (2) In nominating the Councillors on the Committee, the Corporation shall take into account the relative strength of the recognised parties or registered parties or groups and nominate members, as nearly as may be, in proportion to the strength of such parties or groups in the Corporation, after consulting the Leader of the House, the Leader of Opposition and the leader of each such party or group; Provided that, nothing contained in this sub- section be construed as preventing the Corporation from nominating on the Committee any member not belonging to any such party or group; Provided further that, for the purpose of deciding the relative strength of the recognised parties or registered parties or groups under this Act, the recognised parties or registered parties or groups, or elected Councillors not belonging to any such party or group may, notwithstanding anything contained in the Maharashtra Local Authority Members’ Disqualification Act, 1986, within a period of one month from the date of notification of election results, form the aghadi or front and, on its registration, the provisions of the said Act shall apply to the members of such aghadi or front, as if it is a registered pre-poll aghadi or front. 3. Perusal of this provision makes it clear that duty is cast on the Corporation to consult amongst others Leaders of each group or party in the Corporation in the process of nomination of members on the Standing Committee. There is Kambli 6 wp2005.11 no dispute before us that so far as MNS is concerned, two Councillors were to be nominated on the Standing Committee. Because of the affidavit filed on behalf of the Corporation, there can be no dispute that the Petitioner No.1 was appointed as Leader of MNS in the Nashik Municipal Corporation with effect from 4-11-2009 and he continues to be the Leader of that political party. In paragraph 2 of the affidavit filed on behalf of the Corporation following statement is to be found: 2. As per the municipal records, Petitioner No.1 was appointed as the leader of Maharashtra Navnirman Sena in the Nashik Municipal Corporation w.e.f. 4-11-2009 and as per the record even today he continues to be the leader of Maharashtra Navnirman Sena. 4. Thus, there can be no dispute that the Petitioner No.1 was the Leader of that political party and that he was required to be consulted. In the affidavit filed on behalf of the Corporation, it is also stated that a meeting of the Leaders of the various political groups was called for consulting them in the matter of nomination of members of the Standing Kambli 7 wp2005.11 Committee at 10 a.m. On 1-3-2011. It also is an established position on record that notice of that meeting was issued to the Petitioner No.1. According to the Petitioners, the Petitioner No.1 attended that meeting and nominated the Petitioner No.2 and the Petitioner No.6 as members of the Standing Committee. According to the Respondent No.5, however, he is the group Leader of MNS and in his capacity as group Leader of MNS he handed over a letter dated 1-3-2011 to the Mayor of the Corporation nominating the Petitioner No.2 and himself as nominees of MNS on the Standing Committee. But perusal of the records shows that as per the records of the Corporation it was the Petitioner No. 1 who is the group Leader and not the Respondent No.5. Therefore, there was no question of the Corporation consulting the Respondent No.5 in the matter of nomination of two members from MNS as members of the Standing Committee. 5. It was urged on behalf of the Respondent No.5 that what is required is a mere consultation with the Leader of Kambli 8 wp2005.11 the political group and the names suggested by him are not binding on the Corporation. In our opinion, even assuming that the names suggested by the group Leader are not binding on the Corporation, however, as the names are given by the group Leader in the process of consultation and it is Corporation which is required to consult the group Leader, the Corporation is entitled to know the entire material that is collected by the Mayor in the process of consultation. Even assuming that the letter from the Respondent No.5 was also received by the Mayor, in our opinion, it was the duty of the Mayor to place before the Corporation both the letters received by him. If it was the case of the Mayor that there were no nominations received from the Petitioner No.1, it was the duty of the Mayor to inform the Corporation that in the process of consultation he has not received any nomination from the Petitioner No.1. But it appears that the entire material collected by the Mayor during the process of consultation was not placed before the General Body. In our opinion, therefore, there was no effective consultation by the Corporation with the Leader of the political party as Kambli 9 wp2005.11 contemplated by provisions of Section 31A of the Act. In our opinion, for that reason the nomination of Respondent No.5 as member of the Standing Committee by the Corporation for the year 2011 is infirm and is liable to be set aside. In our opinion, therefore, following order would meet the ends of justice. O R D E R (i) The nomination of Respondent No.5 as a member of the Standing Committee representing MNS group in the Corporation is set aside. (ii) The Corporation is directed to take fresh steps to make nomination of one member on the Standing Committee from MNS quota in accordance with law. (iii)Rule made absolute accordingly. No order as to costs. At this stage a request is made for stay of the operation of this order on behalf of the Respondent No.5. The last date of the meeting of the Standing Committee for election of Chairman is 30th March, 2011. If the operation of Kambli 10 wp2005.11 this order is stayed, the meeting of the General Body for making fresh nomination would not be possible to be held and therefore in the facts and circumstances of the case the request cannot be granted. It is rejected. (D.K.DESHMUKH, J.) (ANOOP V.MOHTA J.)