1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY. CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2237 OF 2011 Jeevan Chandrabhan Idnani & Anr. .. Petitioners V/s Divisional Commissioner, Konkan Bhavan, Navi Mumbai & Ors. .. Respondents Mr.P.K.Dhakephalkar, Senior Advocate i/by Mr.Ranvir Shekhawat for the petitioners. Mr.V.S.Gokhale, AGP for Respondent Nos.1 & 5. Mr.S.M.Kamble for Respondent Nos.2, 3 and 4. Mr.A.A.Kumbhakoni with Mr.A.K.Kulkarni for Respondent No.6. Mr.R.K.Mendadkar for Respondent No.10. CORAM: SMT.RANJANA DESAI & R.G.KETKAR, JJ. DATE : 2nd May, 2011. ORDER : (Per R.G.Ketkar, J.) 1. Rule. Mr.V.S.Gokhale, AGP waives service on behalf of Respondent Nos. 1 and 5, Mr.S.M.Kamble waives service on behalf of Respondent Nos.2 to 4, Mr.A.K.Kulkarni waives service on behalf of Respondent No.6 and Mr.R.K.Mendadkar waives service on behalf of Respondent No.10. Notice qua the rest of the Respondents is dispensed with. By consent of the parties, rule is made returnable forthwith and is heard finally. 2. The petitioners have challenged the order dated 11.03.2011 passed by the 1st Respondent - Divisional Commissioner, Konkan Bhavan, recognizing 2 the “Swatantra Aghadi” formed by Respondent Nos.6 to 13 on the ground that the impugned action on the part of the 1st Respondent is clearly without sanction of law, unconstitutional and vitiated by total arbitrariness as also is in total breach of the provisions of the Maharashtra Local Authority Members Disqualification Act, 1986 (for short “the Act”) and the Maharashtra Local Authority Members Disqualification Rules, 1987 (for short”the Rules”). The impugned order is also attacked on the ground that the same is passed with a view to favouring the Respondent Nos.6 to 13 to secure the nomination in the Standing Committee in the meeting of General Body to be held on 17th March, 2011. 3. The election results of the 4th Respondent – Municipal Corporation of the city of Ulhasnagar (for short “the Corporation”) were declared in February, 2007. The Corporation is duly established under the provisions of the Bombay Provincial Municipal Corporations Act, 1949 (for short “the B.P.M.C.Act”). The total number of Corporators elected in the general election are 76. The party-wise strength of the membership is as under:- (1) Lok Bharti Party 14 (2) Nationalist Congress Party 15 (3) Shiv Sena Party 16 (4) Bhartiya Janata Party 12 (5) Indian National Congress 6 (6) Republican Party of India (A) 5 3 (7) Maharashtra Navnirman Sena 2 (8) Independents 5 (9) Republican Party of India (G) 1 ---------------- Total Number of Corporators 76 4. It is the case of the petitioners that the 1st petitioner was appointed as a Gat Neta i.e.leader of Municipal Party viz.Lok Bharti Party on 01.03.2011. Accordingly the information in Form-I as per Rule 3(1) (a) of the Rules was furnished. The Respondents 6 to 11 also filled in Form- III in March, 2011 as per Rule 4 of the Rules as belonging to Lok Bharti Party. The Front formed in the name of Lok Bharati Front comprising of Lok Bharati Party, 3 independents (including Respondent No.12 and Respondent No.13) was formed. The Respondent Nos.12 and 13 became associate members of Lok Bharti Front. To that effect, the petitioner No.1 as a group leader of Lok Bharati Front filled in Form-I. 5. It is the case of the petitioners that on 09.02.2011 the 6th Respondent with an eye on the ensuing nominations to the Standing Committee, defected from the said Municipal Party i.e. Lok Bharti Party alongwith the Respondent No.7 to 13 and formed an Aghadhi i.e. “Swatantra Aghadi”. On 23.02.2011 the Respondent Nos.6 to 13 wrote letter to Respondent No.1 seeking recognition of the newly formed group i.e. 4 “Swatantra Aghadi”. By the communication dated 11.03.2011 addressed by the 1st Respondent to the Municipal Commissioner of the Corporation, the 1st Respondent has granted recognition to the “Swatantra Aghadhi” group to enable the said group to send the nominees on the Standing Committee on the basis of their relative strength. It is this communication which is the subject matter of the present petition. 6. Mr.P.K.Dhakephalkar, learned senior counsel submitted that the impugned communication is in the teeth of the 2nd proviso to Section 31A (2) of the B.P.M.C.Act. He submitted that the appointment of the councillors to (a) the Standing Committee, (b) the Transport Committee, (c) any special Committee appointed u/s.30 and (d) any Ad-hoc Committee appointed u/s.31 of the B.P.M.C. Act, is on the basis of relative strength of the recognized parties or groups and the Corporation has to 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 the opposition and the Leader of each such party or group. He further submitted that for the purpose of deciding the relative strength of the recognized parties or registered parties or groups under the B.P.M.C.Act, the recognized parties or groups or the 5 elected councillors not belonging to any such party or group, may, notwithstanding anything contained in the Act, within a period of one month from the date of the notification of the election results, form the Aghadi or Front and on its registration, the provisions of the Act shall apply to the members of such Aghadi or Front, as if it is a registered pre- poll Aghadi or Front. He therefore submitted that the formation of the Aghadhi or Front has to take place within a period of one month from the date of notification of the election results. In his submission this is only one time after the declaration of the election results. The councillors cannot subsequently form Aghadi or Front. 7. He further invited our attention to the provisions of the Act as also the B.P.M.C.Act. He submitted that the main object of insertion of section 31A of the B.P.M.C.Act was to ensure that all the recognized parties or groups in the Corporation are adequately represented in the Committees in proportion to the strength of the political parties and their groups in the Corporation. Considering the provisions of section 2(a) of the Act which defines “Aghadi or Front”, section 2(i) which defines “Municipal Party”, section 2(j) which defines the “original political party” and section 3(1) (a) & (2), he submitted that under the provisions of the Act an elected councilor or the member belonging to the political party or Aghadi or 6 Front by which he was set up as a candidate for election as such councilor or member, he will be disqualified for being a councilor or member, if he joins any political party or Aghadi or Front after such election. Similarly, a councilor who was elected as an independent candidate shall also be disqualified, if after such election he joins any political party or Aghadi or Front. 8. He further contended that if the provisions of the Act and Section 31A(2) of the B.P.M.C. Act are read together without taking into consideration the second proviso to Section 31A, the result would be - “Any person who is elected as an independent candidate would not be entitled to join any registered or recognized political party or group or front after the election. Similarly, any person who is elected as a candidate of any political party or group or front, would not be entitled to join any other political party, aghadi or front after the election. If after election, he (independent as well as member belonging to any political party, group or front) joins any group or front or political party, he may incur disqualification in view of Section 3 of Disqualification Act and as a result of this he may be deprived of an opportunity of representation or appointment on the Committees.” 7 9. According to him the Legislature in its wisdom, to provide equal opportunity to all members including the independents and members of smaller parties, incorporated the second proviso to sub-section (2) of Section 31A of the B.P.M.C.Act. Therefore, if the provisions of the Act and section 31A(2) of the B.P.M.C.Act are read by taking into consideration the second proviso to Section 31A of the B.P.M.C.Act the result would be - “If within one month after election results are notified, the recognized or registered parties or groups or elected councilors not belonging to any such party or group may form the aghadi or front then such front or aghadi will also be considered for the purpose of deciding the relative strength of the recognized parties or registered parties or groups for the purpose of section 31A. After the period of one month from the date election results are notified, if any member joins any aghadi, front or political party he would be subjected to the provisions of the Disqualification Act and would not get any representation on the Committees mentioned in Section 31A.” 10.He therefore submitted that following would be the result/consequences viz.: 8 (i) Since each of the Respondents have joined an aghadi or front, after the period of one month from the date of election results, they are liable to be disqualified under the provisions of Section 3 of the Act; (ii) Since each of the Respondents have constituted/formed an aghadi or front, after period of one month from the date of election results, they are not entitled to any representation on the Committees mentioned in Section 31A of the B.P.M.C.Act. (iii) The so-called change recognized by Divisional Commissioner for the purpose of section 31A is without sanction of law and hence liable to be struck down. 11.On the other hand Mr.Kumbhakoni, learned counsel for the Respondent No.6 submitted that the petitioners have already adopted appropriate proceedings before the Commissioner, Konkan Bhavan declaring Respondent Nos.6 to 13 disqualified in view of the provisions of the Act. In the present case, the petitioners have challenged the order dated 11.03.2011 whereby the Respondent No.1 recognized “Swatantra Aghadi” formed by Respondent Nos.6 to 13. He therefore submitted that the question whether the Respondent Nos.6 to 13 have incurred any disqualification under the provisions of the Act, may not be gone into by this Court. On merits he submitted that Rule 3 of the Rules requires that 9 the leader of each municipal party in relation to the councilor has to within 30 days from the date of commencement of the rules or where such party is formed after such date, within 30 days from the date of its formation, or in either case within such further period as the Commissioner, in the case of councilor of the municipal Corporation may for sufficient reason allow, furnish information viz.the statement in writing containing the names of members of such party together with all the relevant particulars regarding such members as prescribed in Form-I among other things. Rule 3(4) provides that whenever any change takes place in the information furnished by the leader of the Municipal Party, under sub-rule (1) or under sub-rule (2), he has to as soon as may be thereafter and in any case not later than 30 days from the date on which such change has taken place or within such further period as the Commissioner may for sufficient reason allow, furnish in writing the information with respect to such change to the Commissioner. He therefore submitted that the submissions advanced on behalf of the petitioners that the formation of the Aghadi or Front has to take place within a period of one month from the date of notification of the election result, which is only one time after the declaration of the election results, is wholly misconceived. If the interpretation suggested by the petitioners 10 is accepted, Rule 3(4) of the Rules will be rendered otiose. Such interpretation is against the canons of interpretation. 12.We have considered the submissions made by the learned counsel for the parties. Section 31A of the B.P.M.C.Act reads as under:- Section 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 Councilor to any Committee shall be by virtue of his holding any office, appointment of Councilors to these Committees, whether in regular or casual vacancies, shall be made by the Corporation by nominating Councilors 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 section 31. (2) In nominating the Councilors on the Committe, 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 the 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 councilors 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 11 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) If any question arises as regards the number of Councilors to be nominated on behalf of such party or group, the decisions of the Corporation shall be final.” 13.Section 31A of the B.P.M.C.Act provides for appointment of the Councilor to (a) the standing committee, (b) the transport committee, (c) any special committee appointed u/s.30 and (d) any ad-hoc committee appointed u/s.31of the B.P.M.C.Act. The appointment is to be made on the basis of relevant strength of the recognized parties or groups. The Corporation while nominating, has to take into account the relative strength of the recognized parties or groups and nominate the 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, leader of the opposition and the leader of each such party or group. Second proviso to section 31A(2) of the B.P.M.C.Act lays down that for the purpose of deciding the relative strength of the recognized parties or registered parties or groups under the B.P.M.C.Act, the recognized party or group or elected councilors not belonging to any such party or group may, notwithstanding anything contained in the Act, within a period of one month from the date of notification of elections results, form Aghadi 12 or Front and on its registration, the provision of that Act shall apply to the members of such Aghadi or Front, as if it is a registered pre-poll Aghadi or Front. 14.Section 2(a) defines expression “aghadi” or “front”, Section 2(i) defines expression “municipal party” and Section 2(j) defines expression “original political party”, which read as under:- “2. In this Act, unless the context otherwise requires, - (a) “aghadi” or “front means a group of persons who have formed themselves into party for the purpose of setting up candidates for election to a local authority. (i) “municipal party” in relation to the Councilor belonging to any political party or aghadi or front in accordance with the Explanation to Section 3, means- (i) In the case of a Councilor of a Municipal Corporation, the group consisting of all Councilors of the Municipal Corporation for the time being belonging to that political party or aghadi or front in accordance with the said Explanation; (ii) In the case of a Councilor of a Municipal Council, the group consisting of all the Councilors of the Municipal Council for the time being belonging to that political party or aghadi or front in accordance with the said Explanation. (j) “original political party” in relation to a Councilor or a member, means the political party to which he belongs for the purposes of sub- section (1) of Section 3.” 15.We have noted that there is no provision under the B.P.M.C.Act for 13 formation of either pre-poll or post-election aghadi. The concept of aghadi or front or municipal party, original political party is borrowed from the provisions of the Act and the Rules. As noted earlier, the Act provides for formation of pre-poll aghadi or front. Second proviso to Section 31A (2) of the B.P.M.C.Act therefore lays down that for the purpose of deciding the relative strength of the recognized parties or registered parties or groups under the B.P.M.C.Act, the recognized parties or groups or elected councilors not belonging to any such party or group may, notwithstanding anything contained in the Act, within a period of one month from the date of notification of the election results, form an aghadi or front and on its registration the provisions of that Act shall apply to the members of such aghadi or front, as if it is registered pre-poll aghadi or front. Thus, if aghadi or front is formed within a period of one month from the date of notification of the election results, the provisions of the Act shall apply to the members of such aghadi or front as if it is registered pre-poll aghadi or front. Once the provisions of the Act apply to such aghadi or front, the provisions of the Rules will also equally apply to such aghadi or front. 16.Apart from this, Section 20 of the B.P.M.C.Act provides for constitution of the standing committee. Section 20(2) thereof provides that the 14 Corporation shall at its first meeting after the general elections, appoint 16 persons out of its own body to the members of the standing committee. Section 20(3) thereof provides that ½ of the members of the standing committee shall retire every succeeding year at noon on the first date of the month in which the first meeting of the Corporation mentioned under sub-section (2) was held. Section 20(4) provides that the members who retire under sub-section (3), one year after their election under sub- section (2) shall be selected by a lot at such time previous to the date for retirement specified in sub-section (3) and in such manner as the Chairman of the Standing Committee may determine and in succeeding years the members who shall retire under this section shall be those who have been longest in office. Section 20(5) provides that the Corporation shall at its meeting held in the month preceding the date of retirement specified in sub-section (3) appoint fresh members of the standing committee to fill the offices of those who are due to retire on the said date. Lastly section 20(6) lays down that any councilor who ceases to be a member of the standing committee shall be eligible for reappointment. It is clear from the scheme of section 20 of the B.P.M.C.Act that the appointment of the standing committee is not one time affair, having regard to the duration of the Corporation. Section 6 of the B.P.M.C. Act 15 provides that every Corporation unless sooner dissolved, shall continue for a period of five years from the date appointed for its first meeting and not longer and the term of the office of the councilors is co-terminus with the duration of the Corporation. 17.Likewise section 25(1) of the B.P.M.C.Act provides for appointment of Transport Committee consisting of 13 members for the purpose of conducting the transport undertaking. Section 25(5) thereof provides that ½ of the members of the Transport Committee appointed by the Corporation shall retire in every 2nd year on the first date of the month in which the meeting referred to under sub-section (2) was held. Sub- section (6) thereof further provides that the members who shall retire two years after their appointment under sub-section (2) shall be selected by a lot at such time previous to the first date of the month immediately preceding the date of their retirement and in such manner as the Chairman of the Transport Committee shall determine, thereafter, the members of the Transport Committee who shall retire, shall be the members who were longest in office. 18.Section 30 of the B.P.M.C.Act provides for appointment of the Special Committees of the Corporation. It lays down that the Corporation may, from time to time appoint out of its body, the special Committees....... 16 Section 31 of the B.P.M.C.Act provides for appointment of the ad-hoc Committees. It lays down that the Corporation may from time to time appoint out of its own body such ad-hoc Committees......... Thus perusal of sections 20, 25, 30 and 31 clearly indicates that appointment to these bodies does not take place only once during the tenure of the Corporation. On the other hand, appointment to these bodies takes place atleast more than once. In view of insertion of section 31A, the mode of appointment on these bodies is now on the basis of relative strength of the recognized parties or registered parties or groups and not as per Sections 20, 25, 30 and 31. 19.Once it is held that the appointment to the various Committees contemplated under Section 31A of the B.P.M.C.Act takes place more than once, the relative strength of the recognized parties or registered parties or groups at the time of their appointment would be relevant. In other words, the relative strength of the parties that was at the time of registration within a period of one month from the date of notification of the election results, would be relevant only on the first occasion after the general elections are held. In this behalf Rule 3(4) of the Rules is material and it reads as under:- “Whenever any change takes place in the information furnished by the leader of a municipal party or a Zilla Parishad party, in relation to a 17 Councilor and by the leader of a Panchayat Samiti party, in relation to a member under sub-rule (1) or by a member under sub-rule (2), he shall as soon as may be thereafter and in any case not later than thirty days from the date on which such change has taken place or within such further period as the Commissioner, or, as the case may be, Collector may for sufficient reasons allow, furnish in writing the information with respect to such change to the Commissioner or, as the case may be, Collector.” 20.Mr.Dhakephalkar strenuously submitted that Respondent Nos.6 to 13 have incurred disqualification on account of formation of “Swatantra Aghadi”. We need not go into this aspect and express no opinion on that issue, as admittedly, the petitioners have adopted remedy for such reliefs. If the interpretation suggested by the petitioners is accepted, in our opinion, Rule 3(4) of the Rules would be rendered otiose. We have already held that the provisions of the Act and Rules are required to be taken into account while interpreting the provisions of Section 31A of the B.P.M.C.Act. In view thereof, we are clearly of the opinioin that the appointment of various Committees under Section 31A of the B.P.M.C.Act not being one time affair, the relative strength of the recognized parties or registered parties or groups, subject to any change, if any, will have to be taken in to account at the time of appointment of councilors to these committees. 21.We therefore do not find any substance in the submissions advanced on 18 behalf of the petitioners. In the result, petition fails. Rule is discharged. In the circumstances of the case, there shall be no order as to costs. (R.G.KETKAR, J.) (SMT.RANJANA DESAI, J.)