1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CRIMINAL JURISDICTION WRIT PETITION NO.: 2611 OF 2007 Cyril S/o Larence Peters, Age: 37 years, Occ.: Business and social work, R/o Bhusaval, Tq. Bhusawal, District: Jalgaon. ... PETITIONER VERSUS 1. The State of Maharashtra, Through the Secretary, of the Ministry of Urban Development, Government of Maharashtra, Mantralaya, Mumbai-32. 2. The Collector, Jalgaon, Dist. Jalgaon. 3. The Bhusawal Municipal Council, Bhusawal, Dist. Jalgaon, Through it's Chief Officer. 4. The State Election Commission, State of Maharashtra, Through it's Commissioner, Road. Madama Kama Road, New Administrative Building Opposite Mantralaya, Mumbai-32. 5. Shaikh Sarif Hasan, Age: 35 years, Occ.: Business, R/o: Near B.Z.Urdu High School, Khadka Road, Bhusawal, Dist. Jalgaon. 2 6. Ramesh S/o Gurunamal Nagrani, Age: 50 years, Occu.: Business, R/o House No.447, Shindhi Colony, Bhusawal, Dist. Jalgaon. 7. Sunil S/o Madhukar Neve, Age: 36 years, Occu.: Lecturer, R/o: "Atal" Gangaram Plot, Bhusawal, Tq. Bhusawal, Dist. Jalgaon. 8. Rajendra S/o Vasant Barhate, Age: 39 years, Occu.: Business, R/o Ramdaswadi, Khadka Road, Bhusawal, Tq. Bhusawal, Dist. Jalgaon. 9. Manohar S/o Mulchand Barse, Age: 45 years, Occu.: Service, R/o Walmiknagar, Jamner Road, Bhusawal, Tq. Bhusawal, District: Jalgaon. ... RESPONDENTS *** Mr. S. G. Bhalerao, Advocate for the Petitioner. Mr. K. B. Chaudhary, Additional Government Pleader for Respondent Nos.1 and 2. Mr. A. G. Wani, Advocate for Respondent No.3 absent. Respondent No.4 served - absent. Mr. V. P. Latange, Advocate for Respondent No.5. Mr. A. K. Tiwari, Advocate for Respondent No.6. Mr. S. P. Shah, Advocate for Respondent Nos.7 to 9. *** CORAM: S. B. DESHMUKH & S. P. DAVARE, JJ. DATED:- 30th NOVEMBER, 2009. ORAL ORDER : [Per Deshmukh, J.] 1. We have heard learned counsel for the respective parties. 3 2. By this petition, petitioner seeks following relief as principal prayer i.e. para 15 (B): "B) By issue writ of certiorari or any other writ or direction in the nature of certiorari, call for the record from respondent no.2 Collector, Jalgaon of the special meeting held on 2.1.2007 for the nomination of respondent nos.6 to 9, after examining and verifying the same, the nomination of respondent No.5 to 9 which was held in meeting dtd. 02.01.2007 may be quashed and set aside. Para 15 (C) and (D) pertains to interim relief, during the pendency of the writ petition. 3. This petition was filed on 9th April, 2007. On behalf of Respondent/ State reply affidavit is filed which is sworn in by one Mr. Dhananjay Sukadeo Nikam, working as Sub Divisional Officer, Bhusawal, at the relevant time. 4. Advocate appearing on behalf of the Petitioner took us to Maharashtra Municipal Councils, Nagar Panchayats (Qualifications and appointments of nominated Councilors) Rules, 2006 [the Rules of 2006, for short]. Copy of these rules is annexed with the petition (page 21). Advocate for the Petitioner points out Rule 3, which provides that subject 4 to the provisions of rule 4, the Collector shall nominate such number of Councilors, not exceeding ten percent, of the total number of elected Councilors or five, whichever is less at its first meeting after election of the President and Vice-President: There is a proviso appended to this Rule 3 which says that, provided that, while determining the number of nominated Councilors, a fraction of less than one-half shall be ignored and a fraction of one-half or more shall be reckoned as one. Advocate for the Petitioner took us to the qualification for nomination of the persons to be nominated as Councilor of the Municipal Council concerned. He also points out rule 5 laying down that while nominating the councilors, the Collector shall take into account the relative strength of recognised parties or registered parties or groups, and nominate the members, as nearly as may be, in proportion to the strength of such parties or groups in the council, after consulting leader of each of such party or group. To this rule 5 also, there is a proviso which says that, nothing contained in this rule shall be construed as preventing the Collector from nominating any member not belonging to any such party or group. 5. Advocate for the petitioner submitted that Collector 5 has no power and jurisdiction, in case of nomination of the councilors to the municipal council. According to him, councilor is defined under section 2 (6) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 [the Act of 1965, for short]. He submits that the Collector cannot be said to be council. He also took us to section 9 (1) (b) of the Act of 1965. According to him, section 9 (1) (b) provides composition of council and more specifically number of councilors not exceeding ten percent of the total number of elected councilors or five, whichever is less, having special knowledge or experience in municipal administration, to be nominated by the Council in such manner as may be prescribed. According to him, nomination of any person as a councilor is vested with the "council" and not with the Collector. Such nomination shall be in such a manner as may be prescribed obviously under the Act of 1965. He further submits that section 9 nowhere recognises any role to be played by District Collector. He further submits that the District Collector may enter the scenario at the most by virtue of the Rules of 2006. This Court, in the matter of "Gajanan Bhaurao Waghmare and another V/s State of 6 Maharashtra and others" reported in 2008 (4) ALL MR 349, after hearing the parties, quashed and set aside Rules 3 and 5 notified on 20th December, 2006. Learned counsel appearing for the Petitioner points out para 10 and more specifically observation made by the learned Division Bench of this Court which, we are reproducing herein below: "10. ... ... ... "The rules themselves are challenged. When the rules are quashed, all actions taken in accordance with such rules would also suffer the same fate." Advocate for the Petitioner, emphasising these observations of this Court, submits that entire action done by the Collector nominating Respondent Nos.5 to 9 is thus vitiated. With the assistance of counsel for the Petitioner, we have gone through the judgment of learned Division Bench of this Court in the matter of Gajanan (supra). The petitioners, there, in that case, had questioned validity of amended Rules 3 and 5 of the Rules of 2006 which was notified on 20th of December, 2006. There, in that matter, learned Division Bench of this Court, in para 9 observed that "... ... ... the impugned Rule 3 is clearly contrary to the mandate of S.9(1)(b). Rule 5 travels far beyond the power 7 to make rules prescribing the manner of making nominations." The Court further observed that these Rules 3 & 5 have, therefore, to be quashed". 6. Precedential value of the judgment of this Court and Honourable Supreme Court requires to be taken into consideration in its proper perspective. Full Bench of this Court in the matter of "Shikshan Prasarak Mandal V/s State of Maharashtra and others" reported in 2009 (6) Bom. C.R. 1 has held that for a precedent to be binding, there has to be a reference to facts, controversy in issue, discussion on statutory provisions, reasoning for coming to a conclusion and clear statement of law and principles settled or answered by judgment. We are in respectful agreement with the view taken by Full Bench of this Court. 7. Advocate for the Petitioner points out para 11 & 12 to us. We have read paragraphs 11 and 12 carefully. In para 11 facts which are mentioned, are not available in the case on hand. Para 12 also we have considered. In our view, the judgment of learned Division Bench of this Court in the matter of Gajanan (supra) has quahsed and set aside Rule 3 and 5. Importantly, present petitioner is not challenging Rule 3 and 5. His principal prayer para 15 (B), we have 8 reproduced herein above. In this view of the matter, in our view, judgment of learned Division Bench of this Court in the matter of Gajanan (supra), in the facts and circumstances available in the case on hand, is not helpful to the petitioner. 8. Counsel for the petitioner submits that he is placing reliance on the judgment of this Court in the matter of Gajanan (supra) only for the purpose that rules have been quashed and set aside by this Court. Therefore, according to him, the nomination of Respondent Nos.5 to 9, in the case on hand, initiated and completed by the District Collector, in view of Rule 3 and 5, can be quashed and set aside. 9. We have heard learned counsel Mr. Latange for Respondent No.5. He submitted that petitioner has no locus. We are not in agreement with the learned counsel Mr. Latange for the simple reason that the Petitioner has made a statement in para 1 that he is citizen of India and this petition is under Article 226 and 227 of the Constitution. Apart from that, we have considered the submission of Mr. Latange for the Respondent No.5 and we have considered section 21 of the Act of 1965. Section 21 9 makes available forum i.e. the District Court for the disputes in respect of election, nomination of councilors. It is pertinent to note that earlier instead of "nomination" word "cooption" was there in section 21. The Act of 1965 since beginning has recognised the status of a person as a councilor, acquired by election in view of the provisions of the Act of 1965. It appears that the Legislature in its wisdom, amended section 21 and instead of the word "cooption", the word "nomination" was brought in. In other words, word "cooption" was deleted and word "nomination of councilor" was brought in. Thus, remedy to call in question election or nomination of a councilor is made available only by petition presented to the District Court, that too by a candidate at the election or by any person entitled to vote at the election within ten days from the date of publication of the names of the councilors in the official gazette under section 19 or 20, as the case may be. Subsection (1) of section 21 starts from the words "no election or nomination". In our view, alternate remedy was available with limitation of ten days from the date of publication of the name of nominated councilors in official gazetted. Forum is also made available. The date of 10 meeting or nomination, in the case on hand, is indisputably 2nd January, 2007. Petition was filed on 9th April, 2007. This Court issued notice before admission on 30th April, 2007. No interim relief was granted. 10. In the facts and circumstances of the present case, we do not see any case for exercise of extra ordinary jurisdiction under Articles 226 and 227 of the Constitution of India. Petition stands dismissed. No costs. [SHRIHARI P. DAVARE, J.] [S.B.DESHMUKH, J.] Dated:30/11/2009. ans/2611