- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.6389/2008 Shrikant Laxmanrao Gaikwad, age 45 yrs., occu.business and Corporator, Nanded Waghala Municipal Corporation, Nanded, Resident of HIG colony, Nanded. ...Petitioner.. Versus 1] The State of Maharashtra. 2] The Secretary, Urban Development Department, Mantralaya, Mumbai-400 032. 3] The Nanded Waghala Municipal Corporation, Nanded. Through its Commissioner. ...Respondents... ..... Smt.Asfia N. Ansari, Advocate for petitioner. Shri K.G. Patil, AGP for respondent nos.1 & 2. Shri S.V. Kurundkar, Advocate for respondent no.3. ..... - 2 - CORAM: MOHIT S. SHAH, CJ & S.V. GANGAPURWALA, J. DATE: 25.08.2010 ORAL JUDGMENT (Per Chief Justice): 1] Heard counsel for the parties. 2] The petitioner, who is a Councilor of the Nanded Waghala Municipal Corporation, has challenged the Constitutional validity of Rules 3 & 5 of the Maharashtra Municipal Corporations (Qualification and Appointment of Nominated Councilors) Amendment Rules, 2007, as amended by the amendment Rules of 2007 as contained in the notification dated 21.4.2007. Section 5 of the Bombay Provincial Municipal Corporations Act, 1949, provides for constitution of the Municipal Corporations as consisting of elected and nominated councilors. The provision regarding nomination of councilors is to be found in clause (b) of Sub- section (2) of Section 5, which reads as under: “(b) such number of nominated councillors not exceeding five, having special knowledge or experience in Municipal Administration, to be nominated by the Corporation in such manner as may be prescribed.” 3] In exercise of the powers conferred by the said provision, the State - 3 - Government had framed the Maharashtra Municipal Corporations (Qualification and Appointment of Nominated Councilors) Amendment Rules, 2007, which were first published through the notification dated 21.2.2007. Rule 5 of the said Rules conferred power on the Mayor to nominate the members after taking into account the relative strength of recognized parties and after consulting the leader of the House, leader of Opposition and leader of each recognised or registered party or group in the Corporation. By the impugned notification dated 21.4.2007, the State Government amended the said Rules and substituted Rule 5 by the following Rule: “5. Nomination of Councillors - [1] For the purpose of nomination of Councillors, the Commissioner shall, after consulting the leader of the House, leader of Opposition and leader of each recognised or registered party or group in the Corporation, and after taking into account the relative strength of such parties and groups and recommend the names of suitable persons to the Corporation for being appointed as a nominated Councillor. The names of such persons recommended shall not exceed the number of Councillors to be nominated in accordance with rule 3. [2] The Corporation shall, after considering the recommendation by the Commissioner, nominate the Councillors : Provided that, if the Corporation decides not to accept the recommendation of the Commissioner with respect to a person so recommended, it shall record the reasons therefor.” - 4 - 4] Mrs.A.N. Ansari, the learned counsel for the petitioner, has challenged the above amendment on the ground that the Commissioner, who is an officer and not an elected representative of the people, has been vested with the power to make recommendations for nominated members, which runs counter to the democratic principles. Prior to the amendment, the Mayor was required to make such nominations. It is submitted that the Councillors are entitled to nominate the members u/s 5(2)(b) and that, therefore, the impugned amendment is contrary to law and the Constitutional provisions. 5] The learned Government Pleader opposes the petition and submits that the Commissioner is authorised merely to make recommendations of the names of suitable persons after consulting the leader of the House, leader of Opposition and leader of each recognised or registered party or group in the Corporation, and after taking into account the relative strength of such parties and groups, but it is the Corporation, which is to nominate the Councillors. It is further submitted that in the case of Gajanan V/s State of Maharashtra reported at 2008 (3) Maharashtra Law Journal, 225, this Court had an occasion to consider similar controversy and the Court set down the provision conferring such power to nominate on the Collector while Section 9(1)(b) of the Act conferred the power on the Council. In that context, while resolving such a controversy, this Court made the following observations in para 9 of the judgment: - 5 - “9. In fact in respect of nominations to Municipal Corporation which are governed by similar provision in the relevant enactments, the State Government had introduced similar rules divesting Corporations, and clothing Mayors with the power to nominate. After the rules were challenged, the State Government amended the rules further providing the recommendations of Commissioner for nominations being considered by the Corporation. We do not see as to why similar amendment was not carried out in the impugned rules applicable to Municipal Councils. The impugned Rule 3 is clearly contrary to the mandate of section 9(1)(b). Rule 5 travels far beyond the power to make rules prescribing the manner of making nominations. These Rules 3 and 5 have, therefore, to be quashed.” It is, therefore, submitted by the learned Government Pleader that the amended provision brings the nomination rules in line with the provisions contained in the Municipal Corporations Act. 6] Having heard the learned counsel for the parties, we find considerable substance in the submissions made by the learned Government Pleader that when Section 5(2)(b) of the Act confers the powers on the Corporation to nominate the Councillors and the Rules, as amended by the impugned notification, also confer the final power on the Corporation, no fault could be found with the provision only because it is the Commissioner, who makes the recommendations after consulting - 6 - the leader of the House, leader of Opposition and leader of each recognised or registered party or group in the Corporation. In fact, the rules as originally made and contained in the notification dated 21.2.2007 conferred the power of nomination on the Mayor. Such a provision was vulnerable as Section 5(2)(b) conferred the power on the Corporation, which the rules conferred on the Mayor. The impugned amendment as contained in the notification dated 21.4.2007 brings the rules into harmony with the Section 5(2)(b) of the Act and, therefore, also we do not see any merit in the challenge to the amended notification. The writ petition is, therefore, dismissed. No order as to costs. CHIEF JUSTICE (S.V. GANGAPURWALA, J.) ndk/c258106