- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3349 OF 2007 ... 1.Somnath Chintaman Vaskar 2.Shivram Parshuram Patil ...Petitioners v/s. State of Maharashtra and ors. ...Respondents ... Mr.M.M.Vashi for the Petitioners. Mr.P.M.Patil, AGP for State. Mr.R.S.Apte with Mr.A.A.Garge for Respondent No.2. Mr.D.H.Mehta for Respondent No.3. Mr.N.V.Walawalkar for Respondent No.4. Mr.Y.S.Jahagirdar, Sr.Counsel with Mr.Amit Borkar for Respondents Nos. 1 & 2. Mr.G.S.Godbole with Mr.Pankaj J. Das for Respondents Nos. 9 & 10. ... CORAM: D.K.DESHMUKH & J.P.DEVADHAR, JJ. DATED: 23rd October, 2008 ORAL ORDER: (PER D.K.DESHMUKH, J.) 1. The Petitioners who are elected Corporators of the Navi-Mumbai Municipal Corporation- Respondent No.2, by this petition challenge the nomination of Respondents Nos. 5 1o 12 who are also Corporators and members of the standing committee of the Respondent No.2-Corporation. - 2 - 2. At the hearing of the petition, however, the learned Counsel appearing for the Petitioners stated that he restricts his challenge in this petition to the nomination of only Respondents Nos. 9 & 10 as members of the Standing committee of the Respondent No.2-corporation. It is an admitted position that the General Election to the Respondent No.2 corporation was held on 10-4-2005. Result of the election was declared on 11-4-2005. The total strength of the elected Corporators in the Respondent No.2-Corporation is 90. At the election, 48 candidates belonging to the Nationalist Congress Party (NCP) were elected as Corporators, 16 candidates belonging to Congress (I) were elected as Corporators, 14 candidates belonging to Shivsena Party were elected as Corporators, 1 candidate belonging to Bharatiya Janta Party (BJP) was elected as Corporator and 11 candidates who had contested election as independents were also elected. 3. According to the Petitioners, 14 members of the Shivsena party formed Aghadi with 1 Corporator of BJP & 6 Corporators who were elected as independents, which is registered under Rule 3(1)(a) of the Maharashtra Local Authority Disqualification Rules, - 3 - 1987. On 23-2-2007, the Maharashtra Ordinance No.II/2007 called "Maharashtra Municipal Corporations (Amendment) Ordinance 2007 was promulgated by the Governor of Maharashtra. By that ordinance section 31-A was added to the Bombay Provincial Municipal Corporation Act, 1949. It is common ground that the Respondent No.2-Corporation is constituted under the Bombay Provincial Municipal Corporation Act, 1949 (hereinafter referred to as the "Act" for the sake of brevity). Subsequently, the said Ordinance has been passed by the Legislature and Section 31-A has become part of the Act. It appears that in March, 2007, 8 Corporators who were members of the Standing Committee retired because of the rotation policy and therefore those 8 vacancies were to be filled in. On 26-3-2007, the Secretary of the Respondent No.2-Corporation issued a notice convening a General Body Meeting of the Corporation on 13-4-2007 at 11 a.m. In the agenda one of the subject before the meeting was filling in 8 vacancies on the Standing Committee. By letter dated 9-4-2007, the Municipal Secretary informed the Mayor of the Respondent No.2 that in accordance with the provisions of Section 31-A of the Act, 8 vacancies of the Standing Committee are to be filled in by nominations of four Corporators of NCP, two Corporators of Congress (I) & - 4 - two Corporators belonging to Shivsena Aghadi ( which consists of 14 corporators of Shivsena Party, 1 corporator of BJP & 6 corporators who have been elected independently). It appears that the leader of each Political group was intimated by the Municipal Secretary about the number of nominations to be made by each political group. According to the Petitioners, in response to the letter, the leader of the Shivsena group informed the Mayor that the Petitioners are to be nominated as members of the Standing Committee in the quota allotted to Shivsena Aghadi. According to the Petitioners, in the General Body Meeting of the Corporation, however, which was held on 13-4-2007 a strange procedure was followed whereby the nomination of the Petitioners as members of the Standing Committee was rejected and in their place Respondents Nos. 9 & 10 were elected as members of the Standing Committee. According to the Petitioners, appointment of the Respondents Nos. 9 & 10 as members of the Standing Committee by the Resolution of the General Body dated 13th April, 2007 is contrary to law and therefore, is liable to be set aside. 4. In this petition, affidavit has been filed on behalf of the Respondents Nos. 9 & 10. The - 5 - Municipal Secretary who has been joined as Respondent has also filed an affidavit. According to the Respondents Nos. 9 & 10, their appointment as members of the Standing Committee is in accordance with law. It appears that the Respondent No.4, who is the Deputy Mayor of the Corporation, who had presided over the meeting held on 13-4-2007 has also filed an affidavit. It appears from the record that the Respondents Nos. 9 & 10 along with six other Corporators of the Respondent No.2 had addressed a letter to the Mayor of the Respondent No.2 dated 3-7-2006 stating therein that eight signatories to this letter including the Respondents Nos. 9 & 10 were elected as candidate belonging to Shivsena political party. It was further stated that there were total 14 members of the Shivsena party elected as Corporators. It was stated that there was difference of opinion amongst the Corporators of Shivsena Party and therefore in the meeting held on 2-7-2006, eight Corporators who are signatories to this letter had decided to constitute a separate group. By letter dated 28th March, 2007, the same eight Corporators, including Respondents Nos. 9 & 10, addressed a letter to the Mayor stating that they have left Shivsena party and they have formed an independent group and therefore they should be given - 6 - a separate place to sit in the meeting hall. It further appears that by letter dated 12-4-2007, which is signed by eight Corporators, including Respondents Nos. 9 & 10, the Mayor was informed that by an independent group consisting of 8 Corporators, who were elected as members of Shivsena party, Respondents Nos. 9 and 10 are nominated as members of the Standing Committee. Though, in the letters referred to above, the Respondents Nos. 9 & 10 have stated that they have separated from Shivsena and they are forming a separate group, in the affidavit filed by Smt.Satvashila Mohan Karne-Respondent No.10, on behalf of Respondents Nos. 9 & 10, they claim that they have never given up their membership of original Shivsena political party. At the same time, they accept that they had written letter dated 3-7-2006 informing the Mayor that they have formed a separate group. They also claim that they were entitled to be nominated as members of the Standing Committee, because their names were nominated by majority of the members belonging to Shivsena Party. 5. We have heard the learned Counsel for both sides. They have also filed their written submissions. From the material on record, there appears to be no dispute that the Respondents Nos.9 & 10 were elected - 7 - as Corporators as candidates belonging to Shivsena party; that 14 candidates belonging to Shivsena party were elected as Corporators. It further appears that those persons who were elected as independent joined 14 members of Shivsena party and formed a Aghadi, which consisted of 20 members and that Aghadi was registered with the Divisional Commissioner as required by the provisions of the Maharashtra Local Authority Disqualification Rules, 1987. It also appears to be an admitted position that the Shivsena political party becomes entitled to nominate two members on the Standing Committee, only because six independents have joined them. It also appears to be obvious position on record that if the case of the Respondents Nos. 9 & 10 that they separated from the Shivsena Municipal Corporation Party is accepted, then original Shivsena Municipal Corporation party will have six members, whereas independent group will have eight members, and therefore both these groups on their own are not entitled to nominate two members. It is obvious from the resolution passed by the Corporation that Respondents Nos.9 & 10 have been appointed as members of the Standing Committee on the assumption that Shivsena Aghadi i.e. 14 members of Shivsena and 6 independents become entitled to nomination of two - 8 - Corporators. Even, the Respondent No.4-Deputy Mayor, who appears to have created the whole mess, has accepted this position in paragraph 12 of his affidavit, wherein he has stated, "....I say that as per the relative strength of the respective parties/ group and independents, for 8 vacancies, 4 persons from Rashtrawadi Party, 2 persons from Congress and independents & 2 persons from Shivsena & independents or their group, could have been taken." But he says that because the Shivsena and independents nominated 4 corporators in stead of 2, he held election. In our opinion, it is obvious from the record and if the case of the Respondents Nos.9 & 10 that they had separated from the original Shivsena party is accepted, then also the appointment of Respondents Nos.9 & 10 as members of the Standing Committee has to be set aside, because group of eight corporators will not be entitled to nominate 2 members on the Standing Committee. 6. It was not disputed before us that the provisions of sub-sections (1) & (2) of Section 31A are - 9 - applicable to the appointment of Councillors on the Standing Committee. The learned Counsel appearing for the Respondents Nos. 9 & 10 tried to contend that second proviso to sub-section (2) of Section 31A is not applicable. In our opinion, even ignoring that proviso and accepting the stand of the Respondents Nos.9 & 10 and Respondent No.4, the appointment of Respondents Nos.9 & 10 as members of the Standing Committee has to be set aside. 7. Perusal of the provisions of Section 31-A shows that appointment of members of the Standing Committee is to be made by nomination and not by election. In the statement of object accompanying the Ordinance by which Section 31-A was incorporated in the Act, it is clearly stated that the present practice of appointment of members of the Standing Committee by election is not satisfactory and therefore Section 31-A is introduced to provide for the nomination of members of the Committee in proportion to the strength of the political party or group in the Corporation. On perusal of the proceedings of the General Body meeting dated 13-4-2007 shows that the Respondent No.4 had adopted a strange procedure. Firstly, he put four nominations recommended by the NCP for voting before the meeting. On the - 10 - Corporation accepting those names, those four Corporators were declared as elected as members of the Standing Committee. Then, two names recommended by Congress (I) party were put to vote. They were accepted. Therefore, those two Corporators were declared elected as members of the Standing Committee. Then name of one Madhavi Shinde was put to vote. That was not accepted. When it came to Shivsena, the names of the Petitioners were placed before the House for voting. The House rejected those names and they were declared defeated and then names of the Respondents Nos.9 & 10 were placed before the House and it was declared that the House has accepted those two names and therefore they were declared as elected. The procedure that is followed by the Respondent No.4 in the meeting is obviously in total violation of the provisions of Section 31-A. In our opinion, it was for the Presiding Officer to decide whether the alleged formation of separate group by 8 Corporators of Shivsena, including Respondents Nos.9 & 10, is to be accepted or not? If it is to be accepted, what would be the representation to be given to each group, it is only thereafter nominations from Shivsena and independents, who have allied with Shivsena, could have been decided. - 11 - 8. Taking overall view of the matter, therefore, in our opinion, following order would meet the ends of justice. O R D E R (i) Appointment of Respondents Nos.9 & 10 as members of the Standing Committee of the Respondent No.2-Corporation brought about by the General Body Resolution dated 17-4-2007 is set aside; (ii) The Respondent No.2-Corporation is directed to decide the question of proportionate representation to be given to the Shivsena and independents, who are said to be forming Aghadi with Shivsena, considering the claim of the eight Corporators, including Respondents Nos.9 & 10, and thereafter hold a fresh meeting of the General Body for the purpose of nominations in the two seats on the Standing Committee; (iii) Rule made absolute with no order as to - 12 - costs; 9. At the request of the learned Counsel appearing for the Respondents Nos.9 & 10, it is directed that the Corporation-Respondent No.2 shall hold its General Body Meeting as directed above only after an expiry of period of four weeks from today. (D.K.DESHMUKH, J.) (J.P.DEVADHAR, J.)