1 wp3683.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 3683 OF 2011 Abdul Sajed s/o Abdul Sattar, age 48 years, occup. social worker and councilor, Municipal Corporation, Aurangabad, r/of House No.1-22-99, Chelipura, Kachiwada, Aurangabad, District Aurangabad. ... Petitioner versus 1. The State of Maharashtra, through Principal Secretary, Urban Development Department, Mantralaya, Mumbai - 32 2. The Divisional Commissioner, Aurangabad Division, Aurangabad 3. Aurangabad Municipal Corporation, Aurangabad, through Commissioner, Municipal Corporation, Aurangabad. 4. The Mayor, Municipal Corporation, Aurangabad. 5. Rashtriya Lokshahi Agahadi (RLA) through Girjaram Halnor, age 50 years, occup. social worker and Councilor, Municipl Corporation, Aurangabad.(deleted as per court order dated 7.6.2011) 6. Mir Hidyatali s/o Mir Basratali, age major, occupation Councillor, r/of Shaha Bazar, Aurangabad, District Aurangabad. 7. Pramod Pralhad Rathod, age 34 years, occup.social worker, r/of Plot No.126, N-3, Cidco, Aurangabad. .... Respondents ------ Shri P.M. Shah, Senior Counsel, i/b by Shri V.D. Sapkal, Adv. for Petitioner. Shri K. G. Patil, Asstt. Government Pleader for Respondent Nos. 1 and 2. Shri S. N. Pagare, Advocate, for Respondent No.3. Shri P.V. Mandlik, Senior Advocate, instructed by Shri A.M.Karad, Advocate, for Respondent No.4. Shri V.D. Hon, Advocate, for Respondent Nos. 6 and 7. 2 wp3683.11 Coram: Smt. Nishita Mhatre and M.T. Joshi, JJ. Judgment reserved on : 24th June, 2011 Judgment pronounced on : 13th July, 2011 Judgment (Per: Mhatre, J.) 01. The issues involved in the present petition are ; (A) Whether the State Government has any right to direct the Mayor of a Corporation to accept a particular person as the leader of an Aghadi or Front ? (B) Whether a person who is elected as a leader of a Aghadi, or Front in a local authority, can continue to act as such, till his term as a councillor comes to an end ? The facts leading up to the present petition are as follows; 02. The elections to the Aurangabad Municipal Corporation were held on 10.4.2011. The results were declared on the next day and were published in the Government Gazette dated 12.4.2011. Several councillors from different parties formed two post poll Aghadis in the Corporation. The Rashtriya Lokshahi Aghadi is constituted by the councillors who are members of the Bharatiya Janata Party, the Shiv Sena and allied parties. The other front, namely, the Sanyukta Lokshahi Aghadi consists of the councillors from the Indian National Congress and the Nationalist Congress 3 wp3683.11 Party etc. The Sanyukta Lokshahi Aghadi sought to register itself with the Divisional Commissioner, Aurangabad, in consonance with Section 31A of the Bombay Provincial Municipal Corporations Act,1949 (for short the BPMC Act). In stead of registering the Sanyukta Lokshahi Aghadi with 49 members, as sought by the Aghadi, the Divisional Commissioner registered the Aghadi consisting of 46 councillors. Indisputably, the petitioner had submitted the application for registration of the Aghadi to the Divisional Commissioner on behalf of its members. The Rashtriya Lokshahi Aghadi consisting of 16 councillors was registered on 18.5.2010. Respondent No.7, a member of the Sanyukta Lokshahi Aghadi, resigned as a member of the Standing Committee of the Corporation. It appears that in a meeting held on 17.8.2010 the Rashtriya Lokshahi Aghadi nominated one of its members to fill in this vacancy. On 25.4.2011, the Government passed a resolution in exercise of its powers under S.451(3) of the BPMC Act and cancelled that decision and directed the Mayor to fill in the seat in consultation with the leader of the Sanyukta Lokshahi Aghadi, as the member who had resigned from the Standing Committee, was a member of that Aghadi. 03. It appears that an application was submitted by some of the councillors of the Sanyukta Lokshahi Aghadi to the Divisional Commissioner, Aurangabad, for registering the name of one Mir 4 wp3683.11 Hidayat Ali, as the leader of their Aghadi. This application was submitted on 13.12.2010. The Divisional Commissioner intimated the leader of the opposition in the Corporation, who is a member of the Sanyukta Lokshahi Aghadi, that he was empowered only to register the Aghadi under Section 31A(2) of the BPMC Act, and could not register any change in the leadership of the Aghadi. 04. The petitioner received a letter on 28.4.2011 from the Mayor of the Corporation, directing him to be present on the next date for a discussion for nominating members to various committees. On 6.7.2010 a circular had been issued by the Government delineating the procedure to be adopted for nominating persons to various Committees of the Corporation. Being the leader of the aghadi, the petitioner submitted two sealed envelopes to the Mayor of the Corporation i.e. Respondent No.4, in consonance with the provisions of Section 31A of the BPMC Act, and the directions issued by the State Government on 6.7.2010, indicating the nominees of the Sanyukta Lokshahi Aghadi. Simultaneously, Respondent No.7, the leader of the opposition, also submitted two envelopes enclosing the names of his nominees. It appears that the Mayor did not open any of the sealed envelopes. Instead, the Corporation resolved to refer the issue as to which sealed envelope should be taken into account, the one submitted by the petitioner or respondent No.7, to the Principal 5 wp3683.11 Secretary, Urban Development Department. The issue was referred through the Mayor, by a communication dated 30.4.2011. The Mayor informed the Government that the nominations had been received both, from the petitioner, as the leader of the Sanyukta Lokshahi Agahdi, as well as from the leader of the opposition i.e. Respondent No.7. It was also mentioned in the communication that the Sanyukta Lokshahi Aghadi had changed its leader, as per the resolution passed by it on 13.12.2010. The Mayor, therefore, sought the government's advice on "whether she should accept the nominations submitted by the leader of the Aghadi, or the leader of the opposition. 05. Aggrieved by this decision, the petitioner has preferred the present writ petition, on 16.5.2011. During the pendency of this petition, the Government informed the Mayor on 25.5.2011 that in view of the resolution passed by the Sanyukta Lokshahi Aghadi dated 13.12.2010, Mir Hidayat Ali, respondent No.6 should be considered the leader of the Sanyukta Lokshahi Aghadi. The petitioner has, therefore, amended the petition, and challenged this communication of the government, dated 25.5.2011. The petitioner represented to the government on 26.5.2011 that once the leader of the Aghadi had been decided, the government could not prevail upon the Mayor of the Corporation to treat Respondent No.6 as the leader of the Aghadi. The petitioner also contended in 6 wp3683.11 his representation that the Government had been misinformed about the change in leadership of the aghadi. He further stated that he was not informed of any meeting held on 13.12.2010, although he was the leader of the Sanyukta Lokshahi Aghadi. This is the broad compass of the facts involved in the present petition. 06. Mr. Shah, the learned Counsel appearing for the petitioner, essentially raised two propositions, namely, 1. That the Mayor could not seek advice from the government on the question as to who should be treated as the leader of an Aghadi; 2. That the order passed on 25.5.2011 by the Government directing the Mayor to treat Respondent No. 6 as the leader of the Aghadi was illegal, as it was not referable to any statutory provisions of law. 07. Mr. Shah submitted that the so-called resolution of 13.12.2010, by which the members of the Sanyukta Lokshahi Aghadi had resolved to change their leader, was not passed in the presence of the petitioner. He submitted that this resolution was not sent by the Mayor to the government. He pointed out that the Mayor, when informed of this resolution, indicated to the members of the Sanyukta Lokshahi Aghadi that it was their internal affair as 7 wp3683.11 to who should be the leader of their Aghadi. Mr. Shah then pointed out that what was referred to the government for advice was the issue whether the envelope consisting of the petitioner's suggestions of the names of the persons to be appointed to the committees, or the nominees proposed by the leader of the opposition (respondent No.7), should be accepted. According to him, once an Aghadi is formed, the leader of the opposition has no voice and it is only the leader of the Aghadi which may consist of the leader of the opposition, who can nominate members to the Standing Committee or any other committee of the house. Mr. Shah then argued that the leader of the Aghadi, once chosen cannot be changed. He has also submitted that once an Aghadi is formed, it must be considered as the municipal party as defined in the Disqualification Act of 1986. According to him, therefore, the leader of the opposition has no role to play when the Aghadi is formed and it is only the leader of that Aghadi, who has any voice for nominating persons to various committees of the Corporation. He submitted that the very nature of an Aghadi is that its members constitute a body or a group, irrespective of their party affiliation. He pointed out that it is well settled that although the political party may direct its members in the municipal corporation to vote in a particular way on a subject, it is the whip of the Aghadi which matters in the municipal elections, since it is that municipal party. Voting against the whip, in Mr. Shah's submission, would lead to 8 wp3683.11 the disqualification of the councillor, though he may not lose the membership of his political party. Therefore, submitted Mr. Shah, it is only the envelope submitted by the Petitioner which should be opened and the person nominated by him must be appointed to the standing committee. 08. Appointments of councillors to the Standing Committee, Transport Committee, Special Committee, or an Adhoc Committee, are to be made in accordance with Section 31A of the BPMC Act. This section reads as follows:- "31A. Appointment by nomination on committees to be by proportional representation:- (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. 9 wp3683.11 (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 the Opposition and the leader of 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 recognised parties or registered parties or groups under this Act, the recognised 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 notification of election results, form the aghadi or front and, on its registration, the provisions of the said Act shall apply to the members of such aghadi or front, as if it is a registered pre-poll aghadi or front. (3) If any question arises as regards the number of Councillors to be nominated on behalf of such party or group, the decision of the Corporation shall be final. " Section 31A(2) provides that there shall be consultation with the leader of the house, the leader of the opposition and the leader of 10 wp3683.11 each such party, or group. Thus, besides the leader of a group, or Aghadi or a front being consulted, the leader of the house and the leader of the opposition, as also the leader of each party, is to be consulted before appointments are made to the aforesaid committees. However, this consultation does not preclude the Corporation from nominating independent councillors to the Committees. 09. The concept of the leader of Aghadi or group is borrowed from the Maharashtra Local Authority Members Disqualification Act 1986. (For short, "The Disqualification Act"). It provides for a pre- poll Aghadi. However, the second proviso of Section 31-A (2) of the BPMC Act differs to the extent that a post-poll Aghadi is also valid for the purpose of Section 31-A, if it is registered within one month of the general election. According to the rules framed under the Disqualification Act, the Aghadi is to be registered with the Revenue Commissioner. Rule 3(c) provides that the rules and regulations of the Party/Group can also be framed and a copy may be submitted along with other information while registering the Aghadi. In the present case, it is nobody's case that any such rules were framed by the Aghadi which, inter alia, could have provided for removal of the leader of the Aghadi. 11 wp3683.11 10. In the present case, the petitioner claiming to be the leader of the Sanyukta Lokshahi Aghadi submitted the names of his nominees in a sealed envelope, to the Mayor. At the same time, the leader of the opposition also submitted his recommendations ( to which Respondent No. 6 also is a signatory). According to the petitioner, it is only his envelope which can be considered, and not that of the leader of the opposition. 11. The leader of the opposition has been defined in Section 19-IAA of the BPMC Act. It reads as follows; "19-IAA. (1) An elected Councillor who is, for the time being, the Leader of the Party in opposition, having greatest numerical strength and recognized as such by the Mayor, shall be the Leader of the Opposition. Explanation: Where there are two or more parties in the opposition, having the same numerical strength, the Mayor shall, having regard to the status of the party, recognize the leader of any one of such parties as a Leader of the Opposition for the purposes of this Act and such recognition shall be final and conclusive." 12. Indisputably, Respondent No. 7 is the leader of the opposition and has been recognized as such by the Mayor. The Mayor, therefore, need not have sought for advice from the government as the provisions of the BPMC Act do not provide for such a reference to be made by the Mayor. 12 wp3683.11 13. It has been argued by the learned advocates for the respondents that a residuary power is vested in the Government to advise the Mayor as and when such counsel is sought under Section 451 of the BPMC Act . It provides that if the State Government is of the opinion that the execution of any resolution or order passed by the Corporation would lead to any breach of peace or cause any injury or annoyance to the public or is likely to lead to misuse of municipal funds against the interest of the public, the State Government may suspend the execution of such resolution or order or prohibit the Corporation from doing any such act for the period stipulated therein. In such case, on receipt of the order, the Corporation, or the Commissioner, may make a representation to the State Government against the said order of the Government, if necessary. The State Government may thereafter, either cancel, modify or confirm the order passed by it under sub-section (1) of Section 451. It may also take such other action as is expedient in its opinion in respect of the matter. When the State Government passes an order in terms of sub-section (1) of Section 451, the resolution or the order passed by the Corporation is deemed to be rescinded. Any such order made by the State Govt. is expected to be complied by every Councillor and the Corporation. 13 wp3683.11 14. In our opinion, the submission of Mr. Hon, the learned Counsel for Respondent No. 7 and the learned A.G.P. that Section 451 empowers the State Govt. to advise and direct the Corporation, is unsustainable from a mere reading of the aforesaid Section. It does not, in any manner, contemplate any reference being made to the government. In fact, Section 451 confers a power on the State Government to stop the Corporation from acting in contravention of, or in excess of the powers conferred on it under the statute. It does not provide for a reference being made by the Corporation to the government for a decision on any subject, nor does it provide that the Corporation may seek the government's counsel in any matter. Therefore, in our opinion, the Mayor ought not to have sent the matter to the government for advice. The Government has supervisory powers over the Corporation, only with respect to its administrative functions to ensure that there is good governance on the part of the Corporation and that the funds are not frittered away. It cannot decide who should be nominated to the committees of the Corporation. 15. Mr. Hon, the learned counsel for Respondent No. 7, has tried to submit that it is the house and not merely the Mayor, which has referred the issue to the government. He pointed out that the 14 wp3683.11 house had resolved that guidance should be sought from the government as to whether the petitioner or the leader of the opposition should be permitted to nominate persons to the aforesaid committees. In our opinion, even if that be so, it is for the house to take its own decision and not for the government to give guidance. It is only when a resolution is passed by the house which is likely to cause injury or annoyance to the public or lead to the breach of law and order, or lead to the misuse of the municipal funds, that the State government can step in and prevent such action. In the present case, it is not the submission of any counsel who appeared before us that the councillors had passed a resolution which would, lead to a breach of law and order or misuse of municipal funds or cause injury, or annoyance to the public. In our opinion, therefore, the action of the Corporation and its Mayor, of referring the issue to the government for advice, is without jurisdiction and not referable to any statutory provision, as submitted by the learned Counsel Mr. Shah. 16. Mr. Mandlik, the learned Counsel appearing for Respondent No.4 submitted that the present petition has been filed prematurely. According to him, the Mayor sought the guidance of the State only because she had received two envelopes from both, the leader of the Aghadi, as well as the leader of the opposition. He submitted further that a piquant 15 wp3683.11 situation had arisen, because the Mayor had received two envelopes containing two sets of the nominees for the standing committee, as the petitioner was not accepted as the leader of the Aghadi by the rest of the members of the Aghadi. All of them considered Respondent no. 6 to be their leader. It is in these circumstances that it was necessary for the Mayor to seek the advice of the State Government, according to the learned counsel. He submitted that the Mayor has yet to decide whose nominees should be accepted, whether the nominees of the petitioner, or those of Respondent No.7. The learned counsel, therefore, urged that the petition should be dismissed. 17. We have concluded that the Corporation could not have sent the matter for advice to the government. The latter had no power to direct the Mayor to treat Respondent No.6 as the leader of the Aghadi, in stead of the petitioner. The Corporation is expected to take its own decision having regard to the provisions of law. Besides, the government, while directing that Respondent No.6 should be treated as the leader of the Aghadi, in stead of the petitioner, has issued directions which were not sought for. All that the Corporation through its Mayor had referred for advice, was whether the envelope submitted by the leader of the Aghadi i.e. the Petitioner, or the one submitted by the leader of the opposition, i.e. respondent No. 7, should be taken into 16 wp3683.11 consideration while nominating persons to the aforesaid various committees. As we have noted earlier, Section 31A(2) of the BPMC Act provides for consultation with the leader of the house, the leader of the opposition and the leader of each such party or group for appointing councillors to the various committees. Therefore, there can be no dispute that the leader of the opposition would have to be consulted. However, whether it is the petitioner who should be considered as the leader of the Aghadi, or Respondent No.6, is an issue which cannot be dictated by the government. 18. As regards the dispute as to whether the petitioner is removed or replaced by Respondent No.6, Mr. Shah for the petitioner submitted that the statute which provides for having a leader of Aghadi does not provide for his removal. Therefore, according to him, in the absence of any statutory provisions, the petitioner cannot be removed. 19. Mr. Shah, the learned counsel for the petitioner, has fortified these submissions by relying on certain judgements which we will now advert to. In the case of Reshma Rafiq Desai vs. State of Maharashtra and another, 2007 (1) Mh.L.J. 135, the Division Bench held that when there was no inherent power in Maharashtra Nursing Council to pass a motion of no 17 wp3683.11 confidence against the President, he could not be removed in that manner. The aggrieved members were required to move the State Govt. for his removal. 20. In the case of Hindurao Balwant Patil and another vs. Krishnarao Parshuram Patil and others AIR 1982 Bombay 216, the Division Bench held that in the absence of a rule, or a bye-law, the Managing Committee of a cooperative society had no inherent or implied power to remove the chairman or vice chairman of the society, by a vote of no confidence. The Division Bench observed that by importing the doctrine of implied and inherent power or right to recall, the elected members could not be permitted to do indirectly what they are not permitted to do directly under the provisions of law. 21. The Full Bench of the Punjab High Court in the case of Jagdev Singh vs. The Registrar, Co-operative Societies, Haryana and ors, AIR 1991 Punjab and Haryana 149, has taken the same view. 22. The judgement of the Division Bench of this Court in the case of Vasant Nivrutti Gite and ors. vs. Municipal Corporation of City of Nashik and ors, 2007 (4) Bom.C.R. 144, which has been relied upon by Mr. Shah for the petitioner, 18 wp3683.11 speaks about how the numerical strength of each party or Aghadi is to be considered while nominating persons to various committees of the Corporation. 23. The last judgement cited by Mr. Shah, in the case of Dattatraya Maruti Bawalekar and others vs. Pandurang Dagadu Parte and others, (1998) 5 SCC 431, has no relevance to the fact-situation in the present case. 24. The learned counsel for the respondents have relied upon the judgement of the Division Bench of this Court in the case of Dattabhau Pathrikar vs. State of Maharashtra, 2007 BCR (3) 667. The Division Bench was dealing with a situation where the leader of the opposition was changed by the opposition party. The Court held that considering the provisions of Section 19- IAA of the BPMC Act and the provisions