PIL 168-09 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION P.I.L.NO.168 OF 2009 Birudeo A. Lawate and Anr. .. Petitioners Versus Smt. Alka Anant Desai & Ors. .. Respondents Mr.Macchindra Patil for petitioners Mr.Ravi Kadam, Advocate General with Mr.A.H.Palekar, AGP for respondent Nos. 13 and 14. CORAM : MOHIT SHAH,C.J. & S.C.DHARMADHIKARI, J. Date : 1st July 2010. P.C. 1] In this petition under Article 226 of the Constitution of India, purporting to be a PIL, the petitioner has challenged the nomination of respondent Nos. 1 to 12 who are Members of Legislative Council (MLCs) for the State of Maharashtra and for a direction against the Chief Secretary to Government of Maharashtra, Chief Electoral Officer, Maharashtra State to appoint fit, proper and eligible persons in their place as MLCs. 2] The petitioner’s case is that the members to be nominated by His Excellency the Governor under clause 3(e) of Article 171 of the Constitution have to be the persons having special knowledge or practical experience in respect of such matters as Literature, Art, Science, Cooperative Movement and Social Service, but PIL 168-09 2 respondent Nos. 1 to 12 are not experts in any of these fields. 3] It is submitted that the petitioner had sought information about expertise of such Members and respondent No.13, Chief Secretary gave a reply dated 23rd January 2009, wherein it is stated that the information sought for by the petitioner is not available with him. According to the petitioner, in view of the said reply it appears that respondent Nos. 1 to 12 are not experts in any of the above fields and, therefore, the nomination by His Excellency the Governor, of respondent Nos. 1 to 12 as Member of Legislative Council under Article 171(3)(e) is unconstitutional. It is further submitted that in spite of the order dated 17th June 2010 passed by this Court, respondents have not filed affidavit in reply placing on record the necessary information regarding respondent Nos. 1 to 12, nor have they dealt with the allegations of the petitioner that they do not fulfill the constitutional requirements specified in Article 171(5). 4] The learned Advocate General appears for respondent Nos. 13 and 14 and relying upon the affidavit dated 13th June 2010, submits that the petition deserves to be dismissed, as the petitioner has not made the necessary pleadings in the petition. It is submitted that the nomination of respondent Nos. 1 to 12 is made by His Excellency the Governor within the discretionary domain and that, therefore, the petition is not maintainable. 5] The relevant clauses of Article 171 which provide for composition of Members of Legislative Councils read as under:- “171(1) The total number of members in the Legislative PIL 168-09 3 Council of a State having such a Council shall not exceed (one-third) of the total number of members in the Legislative Assembly of that State: Provided that the total number of members in the Legislative Council of a State shall in no case be less than forty; (2) Until Parliament by law otherwise provides, the composition of the Legislative Council of a State shall be as provided in clause (3); (3) Of the total number of members of the Legislative Council of a State:- (a) as nearly as may be, one third shall be elected by electorates consisting of members of Municipalities, District Boards and such other local authorities in the State as Parliament may by law specify; (b) As nearly as may be, one-twelfth shall be elected by electorates consisting of persons residing in the State who have been for atleast three years graduates of any University in the territory of India or ..... (c) As nearly as may be, one-twelfth shall be elected by electorates consisting of persons who have been for atleast three years engaged in teaching (in secondary schools and in higher standards/education); (d) As nearly as may be, one-third shall be elected by the members of the Legislative Assembly of the State from amongst persons who are not Members of the Assembly; (e) the remainder shall be nominated by the Governor in accordance with the provisions of clause (5). (4) ... (5) The members to be nominated by the Governor under sub- clause (e) of clause (3) shall consist of persons having special knowledge or practical experience in respect of such matters as the following, namely – Literature, science, art, cooperative movement and social service.”(Emphasis supplied) PIL 168-09 4 6] The Governor is thus empowered to nominate the persons having special knowledge or practical experience in respect of such matters as literature, science, art, cooperative movement and social service. 7] In view of the above constitutional provisions, the nominations made by the Governor under clause 3(e) of Article 171 read with clause (5) thereof, cannot ordinarily be said to be justiciable and on this short ground alone the petition deserves to be disposed of. 8] In the reply of respondent No.13 it was stated that the information sought for by the petitioner regarding expertise of respondent Nos.1 to 12 was not available with him. This letter cannot be treated as any information from the Chief Secretary to the effect that respondent Nos. 1 to 12 do not have any special knowledge or practical experience in any of the fields mentioned in clause (5) of Article 171. The petition is accordingly dismissed. (CHIEF JUSTICE) (S.C.DHARMADHIKARI, J)