IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5133 of 2007. WRIT PETITION NO.5133 of 2007. WRIT PETITION NO.5133 of 2007. Sharad K. Koshire & Others ..Petitioners versus State of Maharshtra & Others ..Respondents Mr.S.S.Deshmukh for the Petitioner Mr.C.R.Sonawane AGP for the Respondent Nos.1 and 2 Mr.V.A.Gangal for the Respondent No.3 Mr.Sandeep Shinde for the intervenor (in CA 1940/07) CORAM : D.K.DESHMUKH & CORAM : D.K.DESHMUKH & CORAM : D.K.DESHMUKH & R.Y.GANOO, JJ. R.Y.GANOO, JJ. R.Y.GANOO, JJ. DATED : 10th June, 2008. DATED : 10th June, 2008. DATED : 10th June, 2008. P.C. 1. Rule returnable forthwith. 2. Heard finally by consent of both parties. 3. Following are the admitted facts: . Petitioner are elected Councillors of respondent No.3 Corporation. They were elected as independent Councillor in the sense that they were not members of any party or Agadhi. The result of -2- the election was declared on 2.2.2007. An ordinance was issued , which the Government of Maharashtra, published in the official gazette dated 27.2.2007. By the said ordinance Section 31A was introduced into the Bombay Provincial Municipal Corporation Act, 1949. Section 31A introduced into the act, reads as under: 31A. 31A. 31A. (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 Councillor to any Committee shall be by virtue of his holding any office, appointment of Councillors to these Committees, whether in regular or casual vacancies, shall be made by the Corporation by nominating Councillors 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 Councillors on the Committee, 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 Opposition and the leader of -3- 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 recognized parties or groups under this Act the recognized parties or registered parties or groups, or elected Councillors 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 month from the date of the notification of the election results, form the Agadhi or front and, on its registration, the provisions of the said Act shall apply to the members of such agadhi or front, as if it is a registered pre poll aghadi or front. (emphasis supplied) . One of the requirement which was introduced in the Act by this amended provision was that those Councillors who were elected as independent Councillor were to form an Agadhi or front and were to get themselves registered and they were to do it within a period of one month from the date of notification of the Election results. The election results were notified in the present case on 8.2.2007. The ordinance came subsequently on 27.2.2007. It is also an admitted position that the ordinance does not specify the authority with -4- whom the agadhi of the councillor is to be registered. That designation was made by the State Government by issuing notification dated 2.3.2007. That notification reads as under: By the aforesaid Ordinance the provision is made by amending all the three Municipal Corporation Acts for appointment on different Committees the Councillors of Recognised Parties or Registered Parties or Group. Further to form agadhi or front the time limit of one month from the date of publishing of notification of result. The proposal was pending with the State Government as to with which officer such registration of aghadi or group is to be made. It is hereby informed that such registration under the said provisions regarding the formation of such group or agadhi be made with concerned Divisional Commissioner. Also the details of formation of such agadhi or Front. . Thus concerned Divisional Commissioner was designated as an authority before whom the application for registration could be made and this was done for the first time on 2.3.2007. On 9.3.2007 the petitioner made an application for registration of their agadhi as required by Section 31A. Their application has been rejected by the Divisional Commissioner who was the designated Authority by the Order dated 14.3.2007 and the only reason given for rejecting the application is that -5- the application for registration has not been made within a period of one month from the date of declaration of the result i.e. 8.2.2007. It is this order which is challenged in this petition. 4. The learned counsel appearing for the petitioner submits that first Section 31A was inserted into the Act by amendment which came into force on 27.2.2007. The result of the elections were notified on 8.2.2007 and therefore the provisions in the ordinance for formation of agadhi within a period of one month from the declaration of result may not apply in case of the present applicants because on the date on which the results were notified, namely 8.2.2007 Section 31A itself was not in force. Then he submits that in any case even if it is assumed that an application was to be made within one month from 8.2.2007, on 27.2.2007 the ordinance came into force, no authority was designated before whom the application could be made for registration. That designation was made for the first time on 2.3.2007 and application was made on 9.3.2007. The learned Counsel submits that in this situation therefore it cannot be said that the application was not made within one month or -6- that the requirement of making an application is not satisfied. 5. We have heard the learned counsel appearing for the respondent also. We have quoted the provisions of the ordinance above. Perusal of that provision shows that what was necessary to be done within a period of one month from the date of notification of the result was that the agadhi or the front should be formed. The period of one month was applicable in relation to the formation of the front or agadhi. There appears to be no limitation provided for making the application for registration. However, we need not decide this question in this petition because we find that even assuming that the application for registration of the agadhi was also to be made within a period of one month from the date of declaration, the application in this case was made within time. It is to be seen that the results were declared on 8.2.2007. Even assuming that the application was to be made within a period of one month from the date of the notification of the result, then also the application made by the petitioner on 9.3.2007 was within the period of limitation. Section 10 of -7- the Bombay General Cases Act reads as under: Section 10. Section 10. Section 10. In any Bombay Act (or Maharashtra Act) made after the commencement of this Act it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word "from" and, for the purpose, of including the last in a series of days or any other period of time, to use the word "to" In view of this provision 8th February, 2007 which was the date of the declaration of the result will have to be excluded for counting the period of one month, and the month will have to be counted from 9th February, 2007 and therefore the period of one month will be over on 9th of the next month i.e. 9th March, 2007. Admittedly, the application is made on 9.3.2007. Therefore, the application was made by the petitioner within a period of one month from the date of declaration of the result. Therefore, it is clear that the Order made by the Commissioner rejecting the application made by the petitioner for registration of their front on the ground that it is not made within a period of one month from the date of declaration of the result is erroneous and is liable to be set aside. rejected. In the result, therefore, the petition succeeds and is allowed. -8- . The Order dated 14.3.2007 made by the Commissioner, which is impugned in the present petition is set aside. The application is remitted back to the Divisional Commissioner for decision in accordance with law. For that purpose the petitioner shall appear before the Divisional Commissioner on 13.6.2008. The Commissioner shall decide the application within a period of one week from 12.6.2008. Rule made absolute accordingly. . No order as to costs. . Till the application of the petitioner, as directed above is decided by the Commissioner, the Corporation shall not go ahead with the process of nomination of the Committee under Section 31A. (D.K.Deshmukh, J.) (D.K.Deshmukh, J.) (D.K.Deshmukh, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)