1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1685 OF 2008 1. Gaurishankar Kreeda Mandal, Kurla (W), Mumbai. 2. Ajay Amarnath Shukla, Kurla (W), Mumbai. 3. Athak Seva Sangh, Sakinaka, Mumbai. 4. Anil Vedvyas Galgali Sakinaka, Mumbai. Petitioners VERSUS 1. The Municipal Corporation of Greater Mumbai, Mumbai. 2. The Municipal Secretary of the M.C.G.M; Mumbai. 3. Mr.Jayant Kisan Karande, Kurla (W), Mumbai. 4. Mr.Ajay Laxman Yadav, Kurla (W), Mumbai. 5. Mr.Walji Veerji Bhanushali, Kumbai. Respondents Mr.G.S.Godbole for petitioners. Mr.A.Y.Sakhare, Sr.Counsel with Ms.P.A.Purandhare for respdts. 1 & 2 Mr.B.D.Joshi a/w Mr.Mahesh Subramaniam for respondent no.3. Mr.S.T.Pitre a/w Mr.Mahesh Subramaniam for respondent no.5. CORAM : F.I.REBELLO AND A.A.KUMBHAKONI, JJ. DATE OF ORDER : 17th October 2008 ORAL JUDGEMENT : (PER : A.A.KUMBHAKONI, J.) :- 2 1. Rule. By consent heard forthwith. 2. This petition has been filed seeking Writ of Quo Warranto calling upon respondents 3 to 5 to justify their nomination made by following the process of election, as nominated members of “L” Ward Committee of the first respondent Corporation, as contemplated by provisions of Section 50-TT (2)(c) of the Mumbai Corporation Act, 1988 (hereinafter referred to as “the said Act” for the sake of brevity). Consequential reliefs of injunction are also sought prohibiting respondents 3 to 5 from functioning or acting as such nominated members etc.. A further relief in continuation of the aforesaid Writ of Quo-Warranto is also sought for directing these respondents to vacate their office as nominated members. The aforesaid reliefs are sought basically on the ground that the respondents 3 to 5 (hereinafter referred to as “the contesting respondents”) are not eligible for being nominated to the post to which they have been nominated in terms of Rule 3 of Maharashtra Municipal Corporations, Municipal Councils and Nagar Panchayats (Norms for Representation to the Non Government Organisations and Community Based Organisations in Wards Committee) Rules, 2000 (hereinafter referred to as “the said Rules” for the sake of brevity). 3 3. The petitioners have also sought for a further direction in the nature of Mandamus directing the first respondent Municipal Corporation of Greater Mumbai (hereinafter referred to as “the said Corporation” for the sake of brevity) and the second respondent – the Municipal Secretary of the said Corporation, to forthwith ensure that the second and fourth petitioners are nominated as members in place of the contesting respondents. The aforesaid relief is sought for on the ground that the second petitioner has been nominated by the first petitioner organisation/trust and the fourth petitioner have been nominated by the third petitioner trust and that they were the only one who were qualified and/or eligible for such nomination in terms of the said Rules. 4. The relevant portion of Section 50-TT of the said Act reads thus:- “50-TT : Constitution of Wards Committee : (1) The Corporation shall constitute not more than twenty-five Wards Committees each comprising such contiguous electral wards as may be decided by the Corporation. (2) Each Wards Committee shall consist of :- (a) The Councillors representing the electoral wards within the territorial area of the Wards Committee; (b) The Ward Officer in charge of the territorial area of the Wards Committee; 4 (c) Such number of other members, not exceeding three, nominated by the Councillors referred to in clause (a), from amongst the members of recognised non-Government Organisations and community based organisations engaged in social welfare activities working within the area of the Wards Clommittee; Provided that such persons are registered as electors in the Wards within the jurisdiction of the Wards Committee; Provided further that the norms for recognition of the non-Government Organisations, the requisite qualification for nomination as members and the manner in which they are to be nominated shall be such as the State Government may prescribe. (3) The duration of the Wards Committee shall be co-terminus with the duration of the Corporation. ... ... .................................” 5. Rules 3, 4 and 5 relied by the petitioners of the said Rules read thus :- “3. Norms for recognition of non-Government Organisation and Community based Organizations for the purposes of the Act - The following norms shall apply in relation to the recognition of the non- Government Organizations and community based organizations (hereinafter, in these rules, referred to as “the said Organizations”) for the purposes of nomination of the members thereof on the Wards Committee under the relevant Act; (a) The Organisation should be registered under the Bombay Public Trusts Act, 1950 (Box. XXIX of 1950) or the Societies Registration Act, 1860 (XXI of 1860); (b) The Organisation must have submitted the 5 audited statement of accounts along with work reports to the Charity Commissioner for the last three years preceding the date of nomination of the member thereof; (c) The said Organisations must have completed during the period of three years preceding the date of nomination of the member thereof, at least one project relating to the Municipalities as listed in Schedule XII of the Constitution of India. 4. Qualification for nomination as Member of the Wards Committee - A member of the said Organisation who is not an officer bearer of any political party or an employee of the Central Government, the State Government, a Municipal Corporation or a Municipal Council, shall be qualified for being nominated as a member of the Wards Committee. 5. Perocedure for selection of the member of the non- Government Organisation and Community Based Organisations and the manner for nomination thereof - An organization shall submit an Application for their representation in the Wards Committee, to the Ward Officer of the concerned Ward. The Ward Officer shall put all the applications before the elected Councillors of the Wards Committee. The elected Councillors shall then nominate from amongst the applicants, the members of the Ward Committee. If there is no consensus on the nomination of the members of the Ward Committee, they shall be chosen by the elected Councillors by majority. Provided that, a member so nominated shall cease to be the member of the Wards Committee, if he resigns or is removed from the membership of the organization which he represents on the Ward Committee.” 6. A perusal of the aforesaid provisions of the said Act and the relevant portion of the said Rules shows that each Wards Committee comprises of three nominated Councillors from amongst the members of a recognised non-Government Organisations and Community based 6 Organisations engaged in social activities working within the area of the Ward Committee. The norms for recognition of non-Government Organisations, the requisite qualifications for nomination as members and the manner in which they are to be nominated, is to be prescribed by the said Act. The State Government for this purpose has framed the said Rules. The fifth Rule quoted hereinabove makes it clear that if there is no consensus on the nomination of such members, they are to be chosen by the elected Councillors by majority. Obviously, meaning thereby that in such a case, though the members are to be nominated, in absence of consensus, they will have to be elected by the concerned Councillors. The third Rule lays down the norms for recognition of the Organisations for the purpose of the said Act. Though there are various eligibility criterias laid down by the said Rule, taking into consideration the case of the petitioners, the only relevant portion thereof is clause (c) of Rule 3. This clause requires that an organisation for being eligible to nominate as a member, must have completed, within a period of three years preceding the date of nomination of the member, “at least one project relating to Municipalities as listed in Schedule-XII of the Constitution of India”. The Schedule-XII of the Constitution of India reads thus :- “TWELFTH SCHEDULE (Article 243-W) 1. Urban Planning including town planning. 2. Regulation of land-use and construction of buildings. 7 3. Planning for economic and social development. 4. Roads and bridges. 5. Water supply for domestic, industrial and commercial purposes. 6. Public health, sanitation conservancy and solid waste management. 7. Fire services. 8. Urban forestry, protection of the environment and promotion of ecological aspects. 9. Safeguarding the interests of weaker sections of society, including the handicapped and mentally retarded. 10. Slum improvement and upgradation. 11. Urban poverty alleviation. 12. Provision of urban amenities and facilities such as parks, gardens, play-grounds. 13. Promotion of cultural, educational and aesthetic aspects. 14. Burials and burial grounds; cremations, cremation grounds and electric crematoriums. 15. Cattle ponds; prevention of cruelty to animals. 16. Vital statistics including registration of births and deaths. 17. Public amenities including street lighting, parking lots, bus stops and public conveniences. 18. Regulation of slaughter houses and tanneries.” 7. It is the case of the petitioners that the organisations which have nominated the contesting respondents no. 3 to 5, do not qualify in terms of sub clause (c) of Rule 3 of the said Rules, inasmuch as, none of them have completed any project relating to Municipalities, as contemplated by Schedule-XII of the Constitution of India. On that basis it is submitted by the petitioners that the contesting respondents were not eligible for being nominated and therefore their nomination through the process of election is unsustainable in law and in view of the facts of this case. 8 8. Before we deal with these contentions of the petitioner we may set out few factual details of the matter hereunder. Total 25 nominations were received by the said Corporation for the purpose of nominating the members in terms of the aforesaid provisions on “L” Ward Committee. All the 25 names were considered as valid and eligible and they were thrown for voting. All the contesting respondents no 3 to 5 secured maximum favourable votes namely 8:2 and, therefore, the Chairman of the Wards Committee of the said Corporation in the meeting of “L” Ward Committee, held on 29th May 2008, declared the contesting respondents having been elected, as nominated members on the “L” Ward Committee. This nomination is in issue before us. 9. The petitioners have strongly relied on a curious process that was adopted by the Commissioner of the said Corporation prior to the aforesaid meeting of the Words Committee dated 29th May 2008. The Assistant Commissioner of the said Corporation took upon himself the onerous responsibility of scrutinising the twenty five nominations which were received from various non-Government and Community based Organisations for nominating members on the “L” Ward Committee. After scrutinizing each and every nomination the Assistant Commissioner, “L” Ward, came to be the conclusion that all the three organisations which 9 nominated contesting respondents had not submitted requisite documents to satisfy their eligibility in terms of the aforesaid clause (c) of Rule 3 of the said Rules. In other words the report indicates that the three organisations that nominated the three contesting respondents could not have nominated any one, much less these three contesting respondets. As against the contesting respondents, the Assistant Commissioner found that the first and the third petitioner organisations were qualified and/or eligible to make such nominations. Accordingly, a report was prepared by the Assistant Commissioner, “L” Ward, a copy whereof is produced on record at Exhibit-C dated 12th November 2007. 10. It appears that on 28th December 2007 the aforesaid report dated 12th November 2007 was placed before the Ward Committee and was discussed in its meeting. Various points were raised by the Ward Committee therein. The Commissioner of the said Corporation appears to have prepared his own report thereon dated 27th May 2008 and submitted the same to the Municipal Secretary of the said Corporation. By and large, the Commissioner has agreed with the scrutiny report of the Assistant Commissioner, “L” Ward dated 12th November 2007 holding that the contesting respondents as ineligible and petitioners as eligible. 11. On the basis of these reports and conclusions drawn, the case of 10 the petitioners is that the Wards Committee could not have considered the nominations of the contesting respondents for nominating them as the members of Ward Committee. On the basis of these two main documents, the present petitioners have filed present petition seeking Writ of Quo Warranto and other reliefs as disclosed hereinabove. 12. The contesting respondents as also the said Corporation have filed affidavits annexing various documents and evidence to show that they comply with all the requirements of Rule 3, especially the requirement of clause (c) of Rule 3 of the said Rules. On behalf of the petitioner, an affidavit-in-rejoinder is filed disputing the claim so made by the contesting respondents. 13. Inasmuch as, the scrutiny report prepared by the Assistant Municipal Commissioner, “L” Ward, which is supported by a further report prepared by the Commissioner of the said Corporation is concerned, no doubt they indicate that the contesting respondents are not eligible and/or qualified in terms of the said Rules for being nominated to the posts in issue. However, in our view, in law no reliance at all can be placed on these report. A perusal of the said Act and the said Rules, more particularly the aforesaid provisions quoted hereinabove, it becomes abundantly clear 11 that there is no provision for scrutinizing the nominations received by the said Corporation from these organisations by either the Commissioner or any other officer of the said Corporation. In our view, therefore, in the absence of statutory provisions made by the said Act or the said Rules, it was not at all open either for the Assistant Commissioner, “L” Ward or for the Commissioner of the said Corporation to undertake any such exercise of carrying out the scrutiny of the nominations received by these organisations to find out as to which of them are eligible and which are not. In our opinion, the aforesaid officials of the said Corporation have no power, authority or jurisdiction to undertake any such exercise as has been conducted by them. Obviously, therefore, the conclusions drawn by these officials of the said Corporation, have no value in law and cannot be considered at all for any purpose whatsoever. We, therefore, hold that neither the Assistant Commissioner of a Municipal Ward nor the Commissioner of said Corporation has any authority, power or jurisdiction to scrutinise the nominations received from various organisations set out in sub section (2)(c) of Section 50-TT of the said Act for nominating a person for being nominated by the Councillors as a member of the Wards Committee. On the contrary, perusal of the entire scheme of the said Act and said Rules in this regard leaves no manner of doubt that the officials of the said Corporation are duty bound to place before the Wards Committee all the nominations that may be received by 12 the said Corporation and it is for the Wards Committee to take appropriate decision in that regard including as to eligibility of any of such nominations. 14. We will therefore, consider hereunder the case of the petitioners and that of the contesting respondents, to the extent permissible for us in exercise of our writ jurisdiction, without considering the aforesaid two reports prepared by the said Municipal Officials. At this juncture it is worthwhile to note that non of the organisations who have nominated the contesting respondents no. 3 to 5 have been joined as party respondents to this petition and that we have been called upon to pronounce upon their eligibility/entitlement/qualification to nominate a councilor for being nominated to be a member of Wards Committee. 15. On behalf of third respondent, an affidavit-in-reply has been filed bringing on record various documents and facts showing that the organisations which nominated the third respondent is eligible and/or qualified to make such a nomination in terms of Rule 3 of the said Rules. This third respondent Jayant Karande has been nominated by one Kurla Vartahar Sanstha which is registered as a public trust under the Bombay Public Trusts Act (“BPT Act” for short) in the month of March 2003. Certain documents are produced along with this affidavit to show that the 13 third respondent has conducted programs in public health, creating awareness about the Polio Pulse Scheme etc. Some photographs have been annexed showing that the medicines were distributed as also Eye Check-up Camps were organised by the said organisation. It also appears that Tree Plantation Programs and projects have been undertaken from the point of view of protection of Environment and protection of ecological aspects etc. The third respondent relies on these documents which show that the aforesaid organisation has completed projects relating to the said Corporation as listed in Schedule-XII of the Constitution of India. 16. Insofar as fourth respondent Ajay Laxman Yadav is concerned, his candidature was sponsored/nominated by one Parivartan Society, Kurla (W) which is also a trust registered under the BPT Act with no. F/31772/Mumbai. Along with his affidavit he has also annexed documents to show that the aforesaid organisation has completed projects relating too public health awareness, family planning, vaccination, environment cleaning Aids, T.B. etc. 17. So far as fifth respondent Veerji Bhanushali is concerned, he was nominated/sponsored by one Narayan Vikas Sanstha which is also a public trust registered under the provisions of BPT Act on 17th December 2002. It's registration certificate and copy of Deed of Trust is annexed to 14 his affidavit. Some documents are produced along with the affidavit to show that the aforesaid organisation has worked in “L” Ward in issue and has implemented various schemes reflected by Schedule-XII of the Constitution of India. One of the scheme is Dattak Vasti Yojana which deals with adoption of a locality and working for its improvement. This activity involves cleaning of the area adopted, explaining to the people residing in the such area the importance of cleanliness, protection of environment etc. 18. In the light of the documents so produced on behalf of the contesting respondents 3 to 5, it is submitted on their behalf that their candidature was sponsored by such organisations who had completed at least one project relating to the said Corporation as listed in Schedule-XII of the Constitution of India. The petitioners have filed affidavits-in- rejoinder as an attempt to put holes in the claims/defenses of the contesting respondents and attempting to show that the aforesaid documents relied upon by the contesting respondents are not true and correct. The petitioner has also tried to contend that the certificates produced by these respondents showing that the concerned organisations have completed such projects in the locality of “L” Ward are bogus. We are afraid to note that in the exercise of our writ jurisdiction it will not be possible for us to try, entertain and decide such a claim of the 15 petitioners that the certificates issued by the municipal officials are factually incorrect or bogus. These being clearly disputed questions of fact, the out come which falls within the realm of the fact finding exercise, it will not be open for us to undertake such an exercise and on that basis pronounce upon the eligibility and/or qualification of the contesting respondents 3 to 5 to be nominated u/s 50-TT(2)(c) of the said Act. It will not be possible for us to record any finding one way or the other as to whether or not the organisations who have nominated respondents 3 to 5 have in fact completed at least one project as contemplated by Rule 3(c) of the said Rules and therefore, as to wehther or not the respondents 3 to 5 were eligible for being nominated as members of the Wards Committee of “L” Ward in issue. 19. In the light of the aforesaid discussion and observations that we have recorded hereinabove, we are unable to accept the grievance of the petitioners tried to be made out by this petition in the present proceedings filed invoking our writ jurisdiction and grant any of the reliefs sought for thereby. 20. Hence, the petition is dismissed with no order as to costs. (A.A.KUMBHAKONI, J.) (F.I.REBELLO, J.) 16