1 Lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2182 OF 2010 Prashant Prabhakar More ] Age 33 years, Occupation – Social Service ] Ward No.39, Councilor, ] Nashik Municipal Corporation, ] Dr.Amedkar Wadi, Nasardi Bridge, ] Nashik Pune Road, Nashik ].... Petitioner versus 1 State of Maharashtra ] Through its Principal Secretary, ] Urban Development Dept., having his ] Office at Mantralaya,Mumbai-400032 ] ] 2 Municipal Corporation of Nashik ] Through the Municipal Commissioner ] Having its office at Rajeev Gandhi ] Bhavan Sharanpur Road, Nashik ] ] 3 The Mayor, ] Municipal Corporation of Nashik ] Having his office at Rajeev Gandhi ] Bhavan Sharanpur Road, Nashik ] ] 4 The Municipal Secretary, ] Municipal Corporation of Nashik ] Having his office at Rajeev Gandhi ] Bhavan Sharanpur Road, Nashik ] ] 2 5 Sachin Ramesh Marathe ] Councilor of Shivsena Party ] Having his address at ] Truptida Hous.Soc. Banglow No.4, ] Behind hotel Dwarka, Nashik ] ] 6 Kavita Balasaheb Kardak ] Councilor of BSP Party ] Having his address at ] Bundrakur, Vaishalingar, Pethroad ] Panchvati, Nashik-422003. ] ] 7 Dilip Dattu Datir ] Councilor of Nashik Municipal ] Councilor Having his address at ] Room No.468, Gopal Park, ] Shrikrishnnagar, Ambad, Nashik ] ] 8 Prashant Ramchandra Avad ] Councilor of BJP Party ] Having his address at ] Ghankar Lane, Ravivar Peth, Nashik ] ] 9 Udhav Baburao Nimse ] Councilor of INC Party ] Having his address at ] Laxmi-Vijay Launce, Aurangabad Road] Nandur, Po.-Madsangvi,Tal.Dist.Nashik] ] 10 Shahu Sahdeo Khaire ] Councilor of INC Party ] Having his address at ] Room No.2130, Nav-Darwaja,Nashik ] ] 11 Maya Ashok Dive ] Councilor of INC Party ] Having his address at 116, ] Bhimshaktinagar, Aagartakli, Nashik-6] 3 ] 12 Samadhan Tukaram Jadhav ] Councilor of NCP Party ] Having his address at ] Jopulkar Chawl, Savtamalinagar, ] Navin Aadgaon Naka,Panchvati,Nashik] ] 13 Sanjay Bagul, ] Chairman Standing Committee ] Municipal Corporation of Nashik ] Having its Office at Rajeev Gandhi ] Bhavan Sharanpur Road, Nashik ].... Respondents. Mr.A V Anturkar with Mr. S S Deshmukh for the Petitioner. Mr. V S Gokhale AGP for Respondent No.1. Mr M L Patil for Respondent Nos. 2 to 4 Mr. Y S Jahagirdar with Mr. Sachin Gite for Respondent Nos.5 & 11. Mr. M S Karnik for Respondent No.13. Mr. T S Ingale for Respondent Nos. 6 to 10 and 12. CORAM : A M KHANWILKAR & R M SAVANT, JJ DATED : 29th March 2010 PER COURT : 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith, by consent. Mr. V S Gokhale AGP waives service for Respondent No.1. Mr M L Patil waives service for Respondent Nos. 2 to 4. Mr. Sachin Gite waives 4 service for Respondent Nos.5 and 11. Mr. M S Karnik waives notice for Respondent No.13. Mr. T S Ingale waives notice for Respondent Nos. 6 to 10 and 12. 3. The principal question raised in this petition is, whether the term of one-half members (eight in numbers) of the present Standing Committee of the Nashik Municipal Corporation has already expired on 1st of March 2010 and as a consequence whereof it would be necessary to take steps to elect new eight members in place of the outgoing members of the Standing Committee. 4. The facts which are relevant to examine this limited controversy can be broadly stated as under :- General Ward Elections of Nashik Municipal Corporation for 108 wards was held on 1st February 2007. The results of the said elections was declared on 2nd February 2007. First meeting after General Elections took place on 15th March 2007. In the said meeting the Mayor and Deputy Mayor were 5 elected. The newly elected Mayor adjourned the meeting to 7th April 2007. On 7th April 2007, General Body nominated 16 members on the Standing Committee as per the provisions of Section 20 and 31(a) of the Bombay Provincial Municipal Corporations Act. 1949. The State Government, however, suspended the execution of the said resolution on 10th April 2007. That decision of the State Government was assailed before this Court by way of Writ Petition No.2622 of 2007. The said Writ Petition was finally allowed on 30th April 2007 when this Court passed the following order :- “In the light of our discussion, all these Petitions are disposed off by issuing the following directions : (1) The action of the State Government suspending the execution of the resolution dated 10.4.2007, is upheld. (2) In view of the fact that the resolution is upheld, the Corporation of City of Nashik is directed to commence the process of nomination to the Standing Committee afresh/denovo, in the light of what we have stated above. Rule is made absolute accordingly. In the circumstances of the case, there shall be no order as to costs.” 6 As a consequence of the above decision, third general body meeting was held on 12th June 2007 when the general body nominated 16 members of its own body to be members of the Standing Committee. Thus, the Standing Committee was constituted in terms of the said resolution. 5. On the basis of these admitted factual position, the Respondents assert that one year term of the Standing Committee would commence from 12th June 2007 and as per subsection (3) of Section 20 of the Act one-half of the members of the Standing Committee shall retire every succeeding year at noon on the first day of June of the succeeding year. 6. According to the Petitioner, although 16 members were nominated in the meeting held on 12th June 2007, keeping in mind the mandate of Section 20 of the Act the term of the Standing Committee will have to be reckoned from the date of first meeting after the general elections which was held on 15th March 2007. It is on that premiss, the Petitioner has approached this 7 Court by invoking writ jurisdiction under Article 226 of the Constitution of India amongst others to quash and set aside the letters dated 4th March 2008 and 30th March 2009 issued by the Respondent No.1 and to further declare that term of 8 members on Standing Committee of Nashik Municipal Corporation expires on 1st March 2010 and to direct the Respondent Nos. 1 to 3 to elect fresh members of the Standing Committee (eight in numbers) to fill such offices as soon as possible after 1st March 2010. In the alternative, it is prayed that it may be declared that term of 8 members on Standing Committee of the Respondent-Corporation expires on 1st April 2010 and direct the Respondent Nos. 1 to 3 to hold a meeting for election of fresh members of the Standing Committee (eight in numbers) to fill such offices as soon as possible after 1st April 2010. To buttress the stand taken by the Petitioner, reliance is placed on the exposition of the Division Bench of our High Court in the case of Nitin Manga Shirsat v/s. State of Maharashtra and ors. Reported in 2006(5) Bom.C R. 698. 8 7. Per contra, the counsel appearing for the Respondents submitted that the expression “first meeting” occurring in Section 20 of the Act will have to be construed liberally. More so, in the fact situation of the present case, it will have to be held that nomination of 16 members on the Standing Committee ought to be reckoned from the date of general body meeting dated 12th June 2007, keeping in mind the decision of our Court dated 30th April 2007 which directed to commence the process of nomination to the Standing Committee afresh/denovo. According to the learned counsel for the Respondents, the interpretation put-forth by the Respondents is re-inforced even from the language of subsection (4) of Section 20 of the Act. It is further submitted that in any case, term will have to be reckoned from 7th April 2007 when the general body convened a meeting as first meeting after general elections to appoint 16 persons out of its own body to be members of the Standing Committee. For, the said meeting was the first meeting was evident from the Agenda as well as Minutes of the said meeting. In that view of the matter, at any rate, the term of one-half of the members of the existing Standing Committee 9 ought to continue till end of March 2010 and election to replace 8 retiring members will have to be held on or after 1st April 2010. 8. Besides resisting the petition on merits, the Respondents have raised preliminary points about maintainability of the petition. According to them, the Petitioner is one of the elected members of the general body of the Respondent- Corporation. He has acquiesced himself to the action of the Respondents in treating term of the Standing Committee as having commenced from 12th June 2007. In that, he has been elected as a member of the Standing Committee to replace one of the retiring member of the Standing Committee in June 2009. It is therefore not open to the Petitioner to raise the grievance which is now brought before this Court. It is then contended that the Petition also suffers from laches. Moreover, the Petitioner is praying for the same relief as was prayed in Writ Petition No.1421 of 2010 and 3657 of 2009 which petitions have been disposed of. Even for this reason, the Petitioner cannot be permitted to ask for the same relief. It is lastly contended that the Petition suffers from non- 10 joinder of necessary parties. Inasmuch as, only 8 outgoing members, whose term is likely to expire, have been impleaded as Respondents whereas other 8 members of the Standing Committee, who would continue in the office, have not been impleaded as party Respondents. Since even the said 8 members are likely to be affected in future, if the stand taken by the Petitioner was to be upheld, therefore, they ought to have been impleaded as party Respondents to the present petition. 9. After considering the rival submissions, we would first examine the preliminary objections regarding maintainability of the petition. The first grievance is regarding acquiescence by the Petitioner. This argument does not commend to us. The mere fact that the Petitioner is one of the elected members of the general body and has been nominated as a member of the Standing Committee in June 2009 does not militate against the Petitioner and in particular from raising a question which goes to the root of the matter. Further, it is well established position that there can be no estoppel against the law. Whereas, if we were to 11 dismiss this petition on the ground of acquiescence of the Petitioner, it would result in a situation where the Petitioner is estopped from seeking relief as per law. 10. In so far as grievance regarding the Petition suffers from laches, even this objection does not commend to us. The question raised by the Petitioner is a recurring one. It is in the nature of continuing cause of action. It is pertaining to the status of the present outgoing 8 members of the Standing Committee. We cannot overlook the fact that if the stand taken by the Petitioner was to be accepted, in future it was going to prejudicially affect the Petitioner himself, who is also the member of the Standing Committee. Thus understood, the argument of the Respondents that the Petitioner should be non-suited on the ground of laches cannot be countenanced. 11. That takes us to the third preliminary objection that, the Petitioner is praying for similar relief which was prayed in two other writ petitions filed in this Court in the past and which have 12 been disposed of. There is no serious dispute about the fact that the Petitioner is claiming almost similar relief to one claimed in Writ Petition 3657 of 2009 and also in Writ Petition No.1421 of 2010. The only distinguishing feature is that the above two Petitions were filed in the context of challenge to the continuation of outgoing members whose term had already expired in March 2009 and 2010 respectively. However, the fact remains that both these petitions were filed by some other members of the Corporation and not by the Petitioner himself. Besides, Writ Petition No.3657 of 2009 was allowed to be withdrawn on 11th June, 2009, as it had become infructuous. Even, Writ Petition No. 1421 of 2010 has been disposed of on 10th March, 2010 without deciding the point in issue. Thus, the institution of the two writ petitions in the past for similar reliefs by some other parties and its withdrawal will not come in the way of the petitioner to pursue his remedy before this Court. 12. Reverting to the last preliminary objection taken by the Respondents regarding non-joinder of necessary parties, even this 13 objection will have to be stated to be rejected. It is not in dispute that 8 members of the Standing Committee, who are likely to be immediately affected by the outcome of this petition, have already been made party Respondents in this Petition. The fact that other 8 members, whose term will expire in future, have not been made party Respondents in this Petition, will make no difference. In strict sense, those 8 members are not necessary parties. The fact that they are likely to be affected by the decision in future does not mean that they will have to be treated as proper parties. If that logic is to be accepted, then impleadment of all the 108 members of the general body would become necessary. Since, at some point of time, the said members, if they were aspiring to be nominated as members of the Standing Committee to replace the outgoing members, would be affected by such interpretation. Suffice it to observe that non-impleadment of the remaining 8 members of the Standing Committee, whose term is yet to expire, will not militate against the Petitioner. For the aforesaid reasons, it is not possible to accede to the argument of the Respondents that the petition should be thrown out at the threshold. 14 13. That takes us to the principal question to be decided by us. Before we proceed further, we think it apposite to reproduce Section 20 of the Act, which has direct bearing on the point in issue. Section 20 reads thus :- “20. Constitution of Standing Committee.--(1) The Standing Committee shall consist of [sixteen] councillors. (2) The Corporation shall at its first meeting after general elections appoints [sixteen] persons out of its own body to be members of the Standing Committee. (3) One-half of the members of the Standing Committee shall retire every succeeding year at noon on the first day of the month in which the first meeting of the Corporation mentioned in sub-section (2) was held: Provided that all the members of the Standing Committee in office when general elections are held shall retire from office on the election of a new Committee under sub- section (2) (4) The members who shall retire under sub- section (3) one year after their election under sub-section (2) shall be selected by 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: Provided that, in the case of a member 15 who has been re-appointed, the term of his office for the purposes of this sub-section shall be computed from the date of his re- appointment. (5) 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. (6) Any councillor who ceases to be a member of the Standing Committee shall be eligible for re-appointment.” We have the advantage of the decision of our High Court in case of Nitin Manga Shirsat (Supra) which had occasion to examine the purport of Section 20. It will be useful to reproduce the relevant discussion in this decision which has considered the purport of Section 20, in the context of point in issue. The same reads thus :- “So far as election of the Chairman of the new Standing Committee every year, the starting point is the date of retirement of half of the members specified in sub-section (3) of that section. Consequently, the second clause is required to be read with sub-section (3) of section 20. On reference to the said provision, it is evident that the legislation in its wisdom has not left the date of retirement at the option 16 of the member of the Standing Committee. Half of the members of the Standing Committee, at the end of first year, by procedure of drawing lots and at the end of succeeding years, the senior half members of the Standing Committee stand retired on the first day of the month in which the first meeting of the Corporation, as mentioned in sub-section (2) of section 20, was held. Thus, even if the first meeting of the Corporation for election of first Standing Committee was held after expiry of major portion of the calendar month, that will not enable the first Standing Committee to continue to be Standing Committee exactly for a period of one year and up to the date of the same calendar month of the succeeding year on which they were elected immediately after general elections. If they are elected on the first day of the calendar month, the tenure of the members of the first Standing Committee may be exactly 365 days. But if they are elected in the general body meeting of the Corporation held on later date of the month the life of the first Standing Committee shall stand curtailed to that extent from exact period of one year. If they are elected on the last day of the calendar month, their tenure practically would be only 11 months. By sub-section (3) of section 20, legislation has left no option to the members of the Standing Committee and they retire on the first day of the month of the succeeding year in which they were elected at the first meeting of the Corporation under section 20(2).” (Emphasis supplied.) 17 We are in agreement with the above said opinion. The plain language of subsection (2) leaves no manner of doubt that it is mandatory to appoint 16 persons out of its own body to be members of the Standing Committee “at its first meeting” of the Corporation after general elections. In other words, the Corporation has no option but to appoint 16 persons out of its own body to be members of the Standing Committee “at its first meeting after general elections.” That decision cannot be postponed or deferred to some other meeting at all. This is obviously to ensure that the term of the Standing Committee so constituted is co-terminus with the term of the newly elected members of the general body of the Corporation. The term of the general body is circumscribed by the provisions of Constitution of India read with Section 6 of the Act of 1949. That term commences from “the first meeting after general elections.” The first meeting of the general body after general elections has to be convened within a reasonable time and in any case before the maximum term of the outgoing general body expires. Lest, it would result in a void situation. The law circumscribes the 18 maximum term of the outgoing general body. Obviously, therefore, to ensure that the term of the Standing Committee (which is constituted by election of 16 members amongst the general body of the newly elected members of the Corporation) should be co- terminus with the term of the general body which has constituted it, the mandate of sub-section (2) is to elect 16 persons thereon “in its first meeting after general elections.” This is the expectation of law as legislated by the State Legislature. 14. The purport of sub-section (3) mandates that one-half of the members of the Standing Committee shall retire every succeeding year at noon on the first day of the month in which the first meeting of the Corporation mentioned in sub-section (2) was held. Proviso to sub-section (3) stipulates that all the members of the Standing Committee in office when general elections are held shall retire from office on the election of a new Committee under sub-section (2). This sub-section deals with two aspects. Firstly, that one-half of the members of the Standing Committee shall retire at the prescribed time. Secondly, the proviso envisages that 19 all the members of the Standing Committee in office shall retire from the office on the election of the new committee under sub- section (2). From this provision it is amply clear that the term of the Standing Committee has to be co-terminus with the term of the outgoing general body which had constituted the said Standing Committee in its first meeting after the general elections so that the new general body would elect the members out of its own body to be members of the Standing Committee. 15. In so far as sub-section (4) is concerned, that deals with the right of the members who would retire due to expiry of their term specified in sub-section (3). Indeed, it provides that the members would retire “one year after” their election under sub- section (2), to be eligible for being re-appointed and their continuation in the office for specified period. Proviso to sub- section (4) envisages that a person is re-appointed, the term of his office for the purposes of the said sub-section shall be computed from the date of his re-appointment. 20 16. Taking clue from the opening part of sub-section (4), it was argued on behalf of the Respondents that there is guarantee of one year term of the member of the Standing Committee after the election under sub-section (2). Therefore, the sweep of sub- section (2) will have to be harmonised with the said guarantee of one year term as member of the Standing Committee after his election. This submission will have to be stated to be rejected. In the first place the subject dealt with by sub-section (4) is not to guarantee the term of office of the members, but the substance of that provision is that the outgoing member may offer himself to be re-appointed for the specified period. Whereas, sub-section (2) is a substantive provision as to when the term of the member of the Standing Committee would expire. There is hardly any option available to the newly elected general body but to appoint 16 persons out of its own body to be members of the Standing Committee at its first meeting after general elections. The emphasis in sub-section (2) is to appoint persons as members of the Standing Committee at its first meeting after general elections and not at any point of time as general body may like or other 21 fortuitous circumstances resulting in deferring appointment of persons as members of the Standing Committee beyond the date of the first meeting after general elections. 17. To get over this position, it was argued on behalf of the Respondents that in the fact situation of the present case, it will have to be held that the Standing Committee was constituted on 12th June 2007 and the first meeting after election on 15th March 2007 will have no bearing to reckon the term of members of the sub Committee, inasmuch as the election of the members was as per the directions issued by this Court in Writ Petition No. 2564 of 2007 decided on April 30, 2007. It is not possible