Bombay High Court
Prafulla Son Of Vinodji Gudadhe vs The State Of Maharashtra on 24 July, 2009
Author: B.P.Dharmadhikari
Bench: B.P. Dharmadhikari
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Writ Petition No. 4084 of 2008
Prafulla son of Vinodji Gudadhe,
aged about 33 years,
Nagpur.
occupation Business/Agriculturist,
resident of Jaitala,
.... Petitioner.
Versus
1. The State of Maharashtra,
through the Secretary,
Department of Urban Development,
Mantralaya, Mumbai-400 032.
2. Hon ble Chief Minister,
Mantralaya,
Mumbai-400 032.
3. The City of Nagpur Municipal
Corporation, through
the Municipal Commissioner,
Nagpur.
4. The Mayor,
City of Nagpur Municipal
Corporation, Nagpur.
5. The Divisional Commissioner,
Nagpur Division,
Nagpur.
6. Smt. Sujata Vithalrao
Kombade,
::: Downloaded on - 09/06/2013 14:49:50 :::
2
aged about 45 years,
occupation -
resident of Plot No. 145,
Untkhana, Nagpur. .... Respondents.
*****
Mr. A.S. Jaiswal with Mr. A.S. Chandurkar, Advs., for
the petitioner.
Mrs. B.H. Dangre, Addl. Govt. Pleader for Respondent
Nos. 1,2 and 5.
Mr. S.M. Puranik, Adv., for respondent no.3.
Mr. A.M. Gordey
Mr. S.KI. Mishra, Adv., for respondent no.4.
with Mr. A.M. Ghare, Advs., for
respondent no.6.
*****
CORAM : B.P. DHARMADHIKARI
AND F.M. REIS, JJ.
Date : 24th July, 2009.
ORAL JUDGMENT [Per B.P.Dharmadhikari, J]:
1. The Writ Petition is to be decided finally at admission stage, and accordingly it appears that the same was being fixed at 2-30 p.m., by earlier Benches.
It also appears that it was heard finally, but orders could not be passed.
2. Controversy pertains to Office of Leader of ::: Downloaded on - 09/06/2013 14:49:51 ::: 3 Opposition in Nagpur Municipal Corporation, and considering the nature of controversy, this Court has on 18th September, 2008 directed parties to maintain status quo.
3. It is not in dispute that present petitioner as also respondent no.6 have been elected as Ward Members/Corporators in general elections of Nagpur Municipal Corporation held in February, 2007. In March, 2007, two political factions came together and formed a Municipal Party by name Secular Democratic Front.
The Maharashtra Pradesh Congress Committee authorized Shri Sandeep Sahare to get the said Front registered as per the provisions of the Maharashtra Local Authority Members Disqualification Act, 1986, and accordingly the said Front was registered initially with 38 Corporators. It is not in dispute that at present, and even at the relevant time, the said strength was reduced to 35.
4. Provisions of Section 20-1E of the City of Nagpur Corporation Act, 1948, contemplate a Leader of Opposition, and the Mayor, i.e., respondent no.4 before ::: Downloaded on - 09/06/2013 14:49:51 ::: 4 us, is empowered to recognize the Leader of the Party in Opposition having greatest numerical strength as a Leader of Opposition. On 21st April, 2008, Mayor accordingly recognized respondent no.6 as a Leader of Opposition. Present petitioner then lodged a protest and pointed out that out of total 35 Corporators constituting the Front, 20 were supporting him. He accordingly moved Respondent no.4 Mayor with signatures of those 20 Corporators on 28th April, 2008.
Mayor thereafter has considered that representation and found that as per letter received by him on 28 th April, 2008 and as per notice given to him by 20 Corporators on 26th April, 2008, the respondent no.6 had lost support of majority. Mayor, therefore, recognized present petitioner as a Leader of Opposition.
5. Respondent no.6 then approached respondent no.
1 under Section 407 of the City of Nagpur Corporation Act, 1948 [hereinafter referred to as 1948 Act , for short] challenging said action of Mayor. Her appeal under Section 407 has been considered by Hon ble Chief Minister, i.e., respondent no.2 before us. After hearing the parties and also Mayor, respondent no.2 ::: Downloaded on - 09/06/2013 14:49:51 ::: 5 passed an order on 5th June, 2008 and directed that Mayor should follow the procedure as prescribed under Section 20-1E (1) of the 1948 Act and also abide by principles of natural justice by giving an opportunity to respondent no.6 and petitioner to demonstrate their majority and to nominate the leader elected by majority as Leader of Opposition. The respondent no.2, therefore, quashed and set aside the action taken by respondent no.4 ig Mayor on 28th April, 2008. It appears that thereafter a Writ Petition vide No. 2179 of 2008 was filed before this Court, but the same was withdrawn on 11th June, 2008 by present petitioner.
6. On 13th June, 2008, respondent no.4 Mayor issued separate communications to petitioner and respondent no.6 calling upon them to remain present in the Meeting Hall of Standing Committee on 16th June, 2008 at different times to demonstrate the majority with them. Petitioner was called at 12-00 in the afternoon, while respondent no.6 was called at 3-00 p.m. From the Note, which is appearing below this communication, it appears that Mayor then decided to take a head count of the Corporators supporting either ::: Downloaded on - 09/06/2013 14:49:51 ::: 6 petitioner or respondent no.6. Accordingly on 16th June, 2008, petitioner remained present at a given place and time and he also made available 20 supporters before the respondent no.4 Mayor. Respondent no.6 did not appear, but she objected to the process being followed by Mayor. In proceedings recorded on 16th June, 2008, respondent no.4 Mayor has mentioned that the respondent no.6 or her supporters did not turn up till 4-00 O clock in the evening and hence he himself contacted respondent no.6 on a mobile phone, but she refused to participate in the verification. As respondent no.4 found that petitioner had a support of 20 Corporators, the Mayor, in exercise of his powers under Section 20-1E (1), recognized Petitioner as a Leader of Opposition.
7. Respondent No.6 thereafter again filed an appeal before Respondent No.2, and contended that verification of majority by head count was not legal.
She pointed out that a Front was formed and majority ought to have been verified, as understood by said Front, as per rules of said Front. It was the contention that a person to be eligible to become a ::: Downloaded on - 09/06/2013 14:49:51 ::: 7 Leader of said Front must enjoy support of 75 per cent of Corporators. Respondent No.2 has considered this contention, and has found that as per Rule No.10 of the Rules adopted by Front, the Leader of Front must enjoy support of 75 per cent of Corporators. The action of Mayor of issuing separate letters to Petitioner and Respondent No.6 and of taking a head count is found to be not in consonance with Section 20-1E (1), or the earlier order of respondent no.2 dated 5th June, 2008.
It is observed that respondent no.4-Mayor ought to have sent a letter to Front inquiring as to who out of petitioner or respondent no.6 has been elected as a Leader, by what majority and according to which rules.
Hence the action taken by Mayor on 16th June, 2008 was again set aside and respondent no.2 was asked to send a letter to Front inquiring about the person enjoying majority. This order dated 30th August, 2008 has been questioned in present Writ Petition.
8. We have heard learned Adv. Mr. A.S. Jaiswal with learned Adv. Mr. A.S. Chandurkar for petitioner, learned Addl. Govt. Pleader Mrs. B.H. Dangre for Respondent Nos. 1,2 and 5, learned Adv. Mr. S.M. ::: Downloaded on - 09/06/2013 14:49:51 ::: 8 Puranik for respondent no.3, learned Adv. Mr. S.K. Mishra for respondent no.4 and learned Adv. Mr. A.M. Gordey with Adv. Mr. A.M. Ghare for respondent no.6.
9. Adv. Mr. Jaiswal, after narrating the facts, as mentioned above, has contended that the appeal under Section 407 of the 1948 Act was not maintainable, because that remedy is not contemplated against the Act. He action of Mayor under Section 20-1E (1) of the 1948 contends that Mayor is not an authority subordinate to Corporation, and for said purpose, he has invited our attention to provisions of Section 6 of the 1948 Act. He has further contended that under Section 20-1E (1), Mayor has to evolve his own procedure to discharge obligation cast upon him, and in present matter, after he was directed by respondent no.2 vide his earlier order dated 5th June, 2008, to give opportunity to petitioner and respondent no.6, respondent no.4-Mayor evolved a fair procedure and gave due opportunity to both parties to demonstrate their majority. He contends that the procedure, therefore, could not have been faulted with by respondent no.2 in subsequent order dated 30th August, 2008. He argues ::: Downloaded on - 09/06/2013 14:49:51 ::: 9 that the order dated 5th June, 2008 has been properly implemented and reasons given for interference therewith by respondent no.2 are sustainable. He states that there was no material before respondent no.2 to find out whether there were any Rules regulating the functioning of Front as such and hence reference to Rule 10 of the Rules of Front, or then a direction to follow the procedure as envisaged therein is unsustainable and perverse. According to Mr. Jaiswal, on 27th March, 2008, a meeting of the Political Party, i.e.,Indian National Congress, was only held and it was not the meeting of the Front, i.e., Municipal Party.
He states that respondent no.6 was elected as a Leader of Congress Party and not of Front on 27th March, 2008.
He invites attention to the document on the basis of which the leadership of Front is being claimed by respondent no.6, to urge that on letter addressed to Divisional Commissioner, by applying whitener, the name of Indian National Congress has been scored and in hand writing, the name of Secular Democratic Front has been written on it. He has also invited our attention to relevant provisions of the Rules framed under Maharashtra Local Authority Members Disqualification ::: Downloaded on - 09/06/2013 14:49:51 ::: 10 Act, 1986 [hereinafter referred to as 1986 Act , for brevity], to show that if such intimation is to be given on behalf of Front to Divisional Commissioner, the same must be signed by Leader of Front and the intimation does not bear signature of any person as a Leader of the Front. He has also invited our attention to original record of the Office of Divisional Commissioner which learned Addl. Govt. Pleader has made no available for our perusal. He further argues that there was meeting of Front at any time and hence respondent no.6 was never elected as a Leader of Front.
He has further relied upon Para 5 of the affidavit dated 25th February, 2009 filed on behalf of respondent no.5 by Deputy Commissioner Shri Dilip Chilmulwar to show that the so called set of rules or Bye-laws in which Rule 10 obtains was not received by the Office of Divisional Commissioner at the time of registration of Front, but has been received some time in the year 2008. By inviting our attention to original documents on record, he has attempted to show that there is no endorsement of any receipt on the set of Rules in Marathi i.e. Bye-laws and no date is put anywhere, though on other documents, there are such endorsements ::: Downloaded on - 09/06/2013 14:49:51 ::: 11 and a seal of date appears. He, therefore, argues that the documents submitted by respondent no.6 to respondent no.5 are fabricated and could not have been used for any purpose. In any case, the support of 75 per cent of Corporators constituting the Front to be eligible to become a Leader thereof is not required and a direction to abide by said Rule 10 as contained in the order of respondent no.2 Chief Minister is, therefore, unsustainable. In contentions, he has relied upon certain judgments, to support of his which we will make reference while considering the same.
10. Mr. Jaiswal, therefore, concluded by contending that the respondent no.4 Mayor has diligently implemented the order of respondent no.2- Chief Minister dated 5th June, 2008 and correctly found that when 20 Corporators out of total 35 were with present petitioner, he is having a majority and respondent no.6 had ceased to enjoy it. According to him, therefore, the order dated 30th August, 2008 needs to be quashed and set aside and the proceedings, as conducted by Mayor on 16th June, 2008, need to be ::: Downloaded on - 09/06/2013 14:49:51 ::: 12 restored.
11. Learned Addl. Govt. Pleader Mrs. Dangre has invited our attention to provisions of Section 6 and Section 407 of the 1948 Act, to urge that Mayor is an authority and hence appeal against his order is very much maintainable under Section 407. According to her, the requirement of the subordination contemplated in Sub-section (1) of Section 407 is applicable only to an Officer, and it does not qualify the earlier part, i.e., authority used therein. She further argues that when Mayor recognizes a Leader of Front as a Leader of Opposition for the purposes of Section 20-1E (1), it is an order of recognition which is amenable to appeal under Section 407 (1). She points out that Section 20-1E (1) requires Mayor to apply his mind and to find out existence or absence of certain facts and the process, therefore, is a sort of adjudicatory process, against which an aggrieved party can always make a grievance before Appellate Authority.
12. Mrs. Dangre further states that Front was registered with Respondent No.5 Divisional ::: Downloaded on - 09/06/2013 14:49:51 ::: 13 Commissioner on 20th March, 2007 and thereafter the Office of Divisional Commissioner received a communication dated 28th March, 2008, informing it that respondent no.6 has been elected as a Leader of Front by 33 Corporators. Similar communication was received on 4th April, 2008 also and hence on 4th April, 2008, Divisional Commissioner wrote to respondent no.3 Municipal Commissioner and informed it about election of respondent no.6 this communication, as a Leader of Front.
respondent no.4
Because of
recognized
respondent no.6 as a Leader of Opposition under Section 20-1E (1) and said recognition could not have been withdrawn only because of the protest lodged by petitioner on 28th April, 2008. She points out that holding of a meeting in which the respondent no.6 came to be elected as a Leader is not in dispute, and she further points out that said intimation has been received by Office of Divisional Commissioner with signatures of 31 Corporators, including the petitioner.
According to Mrs. Dangre, therefore, the contention that respondent no.6 was not elected by the Front as its Leader is not supported by record. Our attention is also drawn to Rules or Bye-laws regulating the working ::: Downloaded on - 09/06/2013 14:49:51 ::: 14 of the Front to show that as per Rule 10 (b), unless and until the person enjoys support of 75 per cent of Corporators, he cannot be elected as a Leader of Front.
She argues that such a condition can be legally put by Front and in this matter, because of this condition, the respondent no.2 was required to pass second order on 30th August, 2008. She contends that by first order dated 5th June, 2008, the respondent no.2 had never contemplated physical verification, i.e., head count, and it was incumbent for respondent no.4 to ascertain the majority within party, i.e., by directing Front to hold a meeting and to report who is the Leader of Front. She further argues that because of the requirement of Rule 10 (b), even if it is presumed that petitioner had a support of 20 Corporators out of total 35, as it is less than 75 per cent, the petitioner cannot claim to be the Leader of Opposition. When this requirement and Rule was specifically noticed by respondent no.2, respondent no.2 passed a proper order and directed respondent no.4 to write a letter to Front to convene a meeting and to report the election of Leader of Opposition. She, therefore, contends that the order dated 30th August, 2008 is in accordance with the ::: Downloaded on - 09/06/2013 14:49:51 ::: 15 scheme of Section 20-1E (1) and also as per the Rules which regulate the internal affairs, i.e., working of Front, and cannot be interfered in exercise of writ jurisdiction. According to her, there is no apparent inconsistency in the orders dated 30th August, 2008 and 5th June, 2008, in so far as the aspect of verification of majority is concerned. She also argues that when Mayor has to find out the Leader of Front, he has to take into consideration the Leader as intimated to the Office of Divisional Commissioner by Corporators and hence on earlier occasion, the communication dated 4th April, 2008 sent by Office of Divisional Commissioner to Municipal Commissioner was rightly acted upon and implemented by respondent no.4-Mayor.
13. Learned Adv. Mr. A.M. Gordey for respondent no.6 has contended that Section 20-1E (1) contemplates two ingredients, namely [1] there has to be a Leader of Opposition, and [2] he is to be given recognition by Mayor. According to him, respondent no.4 Mayor controls only the second part of the requirement of Section 20-1E (1), and so far as the first ingredient is concerned, respondent no.4 Mayor has got no role ::: Downloaded on - 09/06/2013 14:49:51 ::: 16 to play. The order dated 5th June, 2008 ought to have been understood by Mayor in that sense and hence he should have given the Front an opportunity to elect its leader or then to report its leader. To point out the importance of the post of Leader of Opposition, he has relied upon the reported Judgment in case of Vishnu Shivram Mehere Vs. City of Akola Municipal Corporation & ors. [2004 (5) Bom. C.R. 847].
14. Mr. Gordey states that the phrase Leader of Opposition , as used in Section 20-1E (1), is not defined in 1948 Act and, therefore, it needs to be interpreted in the light of provisions of a cognate legislation, i.e., Maharashtra Local Authority Members Disqualification Act, 1986. He invites attention to provisions of Section 2 (a), (i) and (j) of the 1986 Act, to point out how the concepts of Original Political Party, Aghadi and Municipal Party are understood. He states that Secular Democratic Front formed herein is a Municipal Party as defined in Section 2 (i) of said 1986 Act. Attention is also invited to 1987 Rules framed thereunder, particularly to definition of Leader in relation to a Municipal ::: Downloaded on - 09/06/2013 14:49:51 ::: 17 Party as contained in Section 2 (d) and (e) (i) and
(i) to urge that such leader has to be chosen by entire political party and in this case, by the Municipal Party. He contends that in view of this provision, it is apparent that such leader of Front has to be elected by Secular Democratic Front only and a stranger, like respondent no.4 Mayor, cannot have any say or role in that process. Provisions of Rule 3 are also pressed into service to show that the Leader of such Municipal Party has to submit certain information within 30 days to Divisional Commissioner, and that information has to contain a statement in writing having names of members of such party. Attention is also invited to Form-I in which said information is required to be furnished and Sub-rule (4) of Rule 3 is also pointed out to us to show that whenever any change in leader takes place, such change is required to be intimated to Divisional Commissioner. He argues that because of this scheme and requirement, the provisions of 1986 Act and Rules framed thereunder have to be read as complementary and the material submitted thereunder must be used by respondent no.4-Mayor while exercising is powers under Section 20-1E (1). To drive home his contention that ::: Downloaded on - 09/06/2013 14:49:51 ::: 18 such election of leader of Front is an internal affair, he has relied upon unreported Judgment of this Court in Writ Petition No. 4664 of 2008 [Mahadeo B. Bundele Vs. State of Mah. & ors.], decided at Nagpur on 1st December, 2008. He, therefore, contends that Mayor does not have any role or any discretion in the matter and he cannot even evolve a procedure for verification of alleged support of majority. He, therefore, states that reliance by petitioner upon the reported Judgment in case of Databhau Annasaheb Patharikar Vs. State of Mah. & ors. [2007 (3) Mh.L.J. 76] for said purpose is unsustainable. In the alternative, he argues that there cannot be any such absolute discretion with Mayor, and Mayor has to be guided by some known principles or guidelines. He has relied upon the Judgments of Hon ble Apex Court in cases of [i] Sant Raj & another Vs. O.P. Singla & another [(1985) 2 SCC 349], and [ii] S.G. Jaisinghani Vs. Union of India & ors. [AIR 1967 SC 1427] [Para 14] in support of his contention.
15. Adv. Shri S.K. Mishra for respondent no.4 Mayor has contended that the Mayor has properly implemented the appellate order dated 5th June, 2008 ::: Downloaded on - 09/06/2013 14:49:51 ::: 19 and proceedings conducted by him on 16th June, 2008 are in accordance with the scheme of Section 20-1E (1).
16. In his brief reply, Adv. Mr. Jaiswal has contended that recognition of Leader of Opposition under Section 20-1E (1) is not an order as understood legally and he has placed reliance upon extracts from Law Lexicon in support of his contention. He has nor Rules further pointed out that provisions of neither 1986 Act framed thereunder are relevant for the purposes of Section 20-1E (1), and in any case, in present facts, as there was no meeting of Secular Front at any point of time, there was no question of any reference to Front or even there is no leader of Front in existence. He points out that the rules on which respondent no.2 has relied for the purpose of passing impugned order are not in existence and hence verification as undertaken by respondent no.4 ought to have been maintained. He further points out that intimations given to Divisional Commissioner are not signed by so called Leader of Front. Hence reliance on those intimations or then upon letter dated 4th April, 2008 written by Office of Divisional Commissioner to ::: Downloaded on - 09/06/2013 14:49:51 ::: 20 Municipal Commissioner is misconceived. He also invited attention to the fact that a similar intimation about election of present petitioner as a Leader of Front has been forwarded by respondent no.5 to respondent no.3.
He further argues that when relevant material has been taken into account by Mayor, the recognition granted by him is held to be final and conclusive by this Court, and as no vacancy can be even imagined in the post of Leader of Opposition, a purposive necessary. When a meeting of the Front has not been interpretation is held and there is no leader of Front, letter cannot be sent to any authorized person to conduct a meeting of Front to choose its leader. In such situation, the only recourse open to Mayor was of undertaking physical verification, and, as that has been honestly done, the same must be upheld and the impugned order should be quashed and set aside.
17. The first question to be decided is whether the appeal as filed by respondent no.6 before respondent no.2 is maintainable or not. It is to be noted that in present facts, there were two such appeals. The first appeal came to be decided by Chief ::: Downloaded on - 09/06/2013 14:49:51 ::: 21 Minister on 5th June, 2008 and thereafter the decision rendered in that appeal was implemented by respondent no.4-Mayor. The process of verification undertaken in pursuance thereof led to present petitioner being recognized as a Leader of Opposition on 16th June, 2008. This declaration was then again challenged before respondent no.2 by respondent no.6 and this was her second appeal under Section 407. The petitioner was 2, and was satisfied with the first adjudication by respondent no.
also satisfied with its execution by respondent no.4-Mayor. He would not have even canvassed the issue of maintainability of appeal, had the declaration dated 16th June, 2008 continued to hold the field. It is, thus, apparent that after the second order of Chief Minister went against him, an objection to the maintainability of appeal is being raised.
Section 20-1E (1) has got an Explanation and said Explanation states that when there are two parties in opposition, having same numerical strength, Mayor has got discretion to recognize a Leader of one of such parties as a Leader of Opposition for the purposes of 1948 Act. This recognition has been made final and conclusive expressly by the Legislature. It is apparent ::: Downloaded on - 09/06/2013 14:49:51 ::: 22 that the purpose of making it final and conclusive is to bar a challenge to use of this discretion by Mayor.
Adv. Mr. Jaiswal has tried to contend that because it is a discretion conferred upon Mayor, which is required to be exercised in a peculiar situation, it has been expressly made final and conclusive and that Explanation cannot be interpreted to mean that exercise of power under Sub-section (1) of Section 20-1E of the contends that, 1948 Act by Hon ble Mayor is open to challenge.
that exercise is also final
He
and
conclusive. We find the logic unsustainable and also
contrary to express use of words final and conclusive
that too only in Explanation by the Legislature. It is
clear that had the Legislature intended to confer such finality and conclusiveness even in relation to exercise of powers under Sub-section (1) of Section 20-1E, the same would have been mentioned by it in Sub-
section (1) and then the mention thereof again in Explanation will not have been necessary.
18. The second limb of objection by the petitioner is that under Sub-section (1) of Section 407, it is only a resolution or order of Corporation or of any ::: Downloaded on - 09/06/2013 14:49:51 ::: 23 other authority or officer subordinate thereto can be questioned. It is argued that Mayor is not an authority subordinate to Corporation and hence appeal against his order is not maintainable. Section 6 of the 1948 Act mentions Municipal Authorities charged with the duty of execution of 1948 Act. Those authorities are Corporation, Standing Committee, Mayor and Commissioner. It has not been pointed out to us that Authorities apart from these authorities, there are any other functioning under 1948 Act. Section 407 (1), read plainly, permits filing of appeal against a resolution, order or any act of Corporation or of authority or officer subordinate thereto. If the issue of subordination of authority, as sought to be raised, is logically applied to other authorities also, meaning thereby the Standing Committee or the Commissioner are presumed to be not subordinate to Corporation, then no appeal against the order, act or resolution of the authority can be contemplated under Section 407 (1).
The words of any other authority in Section 407 (1) will thereby be rendered superfluous. Such an interpretation, therefore, cannot be accepted. The question whether authority, as contemplated therein, is ::: Downloaded on - 09/06/2013 14:49:51 ::: 24 subordinate to Corporation or not, therefore, is not very relevant, and when viewed in the light of provisions in Section 6 and the provisions of other Sections, which do not contemplate any Authority , it is clear that the words subordinate thereto qualify only earlier word Officer and not the words of any other authority.
19.
challenged
The
on
igmaintainability
the ground that
of appeal
action of
is
Mayor
also
in
granting recognition to Leader of the Party in
opposition is not an order and hence appeal against it cannot be filed under Section 407. The argument overlooks the fact that Sub-section (1) of Section 407 provides for an appeal not only against order, but also against a resolution or against doing of any act, which is about to be done or is being done by and on behalf of the Corporation. In any case, the recognition being granted by Mayor has to be in writing and in the scheme of the Act, such writing becomes the order of the Mayor. Learned Adv., for the petitioner has relied upon the connotations of word order as given in Law Lexicon. We do not find any need to refer to said Law ::: Downloaded on - 09/06/2013 14:49:51 ::: 25 Lexicon in view of the discussion undertaken above.
20. In the circumstances, we hold that appeal against the order of recognition passed by Mayor under Section 20-1E (1) is maintainable under Section 407 of 1948 Act before the Govt..
21. In present petition, no document has been on 21st produced by which before 20th April, 2008, and, i.e., April, 2008, respondent no.4 granted recognition to respondent no.6 as a Leader of Opposition. The said fact is reflected only in order passed by Mayor on 20th April, 2008 while considering the representation made by petitioner and holding that she has lost majority. The said document at Annexure-A with the petition, however, does not show that on 21st April, 2008, respondent no.4-Mayor had received any resolution passed by Front electing Respondent No.6 as its Leader. It also does not show that on 20th April, 2008, there was any resolution of Front before him and it expressly mentions that he had before him a notice issued by 20 Corporators. This notice of 20 Corporators has been looked into to conclude that respondent no.6 ::: Downloaded on - 09/06/2013 14:49:51 ::: 26 has lost majority and petitioner has secured majority.
This application of mind by Respondent No.4 assumes importance, because in his first order dated 5th June, 2008, Hon ble Chief Minister has directed the Mayor to follow the principles of natural justice and procedure prescribed in Section 20-1E (1) and to give opportunity to respondent no.6 and petitioner to demonstrate their majority in the opponent party. While undertaking this exercise, because of the language operative part, respondent no.4-Mayor, perhaps, thought employed in the it proper to call petitioner, as also respondent no.6 separately, and accordingly, he proceeded with his exercise of verification of majority and ultimately again passed order, holding that the petitioner, who has produced 20 corporators and their written support to him, has secured majority and, therefore, is a Leader of Party in Opposition. The judgments cited by parties need to be viewed in this background. In Paragraph 5 of the Order rendered in Writ Petition No. 4554 of 2008 [Mahadeo B. Bundele Vs. State of Mah. & ors.], decided on 1st December, 2008, Division Bench of this Court has found that election of a Party Leader and any dispute therein is purely a matter between the ::: Downloaded on - 09/06/2013 14:49:51 ::: 27 party corporators.
22. The reported Judgment of Division Bench of this Court in case of Vishnu Shivram Mehere Vs. City of Akola Municipal Corporation & ors.[2004 (5) Bom.C.R. 847] is the other precedent on which all parties have placed reliance. In Paragraph 24 of said Judgment, while considering provision of Section 19-1AA ig of the Bombay Provincial Corporation Act, 1949, it has been observed that a Municipal person to be recognized as Leader of Opposition must belong to a party in opposition and numerical strength of his party has to be greatest. In paragraph 44 onwards, the importance of post of Leader of Opposition in a democratic set up with history thereof has been narrated, and in present matter, it is not necessary for us to go into that aspect. However, as pointed out by Adv. Mr. Jaiswal, in para 48, it has been observed that Office of Leader of Opposition cannot be kept vacant. Because of this requirement, the Division Bench has found that purposive interpretation of said Section 19-1AA necessitated that if party having largest numerical strength refuses to nominate its leader as ::: Downloaded on - 09/06/2013 14:49:51 ::: 28 Leader of Opposition, an opportunity needs to be given to party having strength below that party in the House.
In para 58, it has been observed that wisdom of Mayor is beyond judicial review and, therefore, not justiciable. In case of Abdul Latif son of Din Mohammad Khatri Vs. State of Maharashtra & ors. [2006 (1) Mh.L.J. 786], the Division Bench considered validity of communication by State Govt., to Mayor to elect the Leader of Opposition from Indian National Congress.
Paragraph 9, it has been found that it was the job of a In Mayor under Section 19-1AA of the Bombay Provincial Municipal Corporation Act, and State Govt., could not have issued any such directions to the Mayor. In case of Databhai Annasaheb Pathrikar Vs. State of Mah. & ors. [2007 (3) Mh.L.J. 76], very same Section 19-1AA has been considered and thereafter in paragraph 10, it has been noticed that the Leader of Municipal Party is defined under the Maharashtra Local Authority Members Disqualification Rules, 1987, and it has been thereafter mentioned that definition of said Leader of Municipal Party under 1987 Rules is for the purposes of those Rules. In same paragraph, little later, it is also observed that there is no legal bar in recognizing ::: Downloaded on - 09/06/2013 14:49:51 ::: 29 other Corporator as a Leader of Opposition whenever change in numerical strength of Councilors supporting a particular leader takes place. In nutshell, these Judgments show that the job of finding out the Leader of Opposition is not left to Mayor, but Section 20-1E (1) contemplates existence of a party in opposition having greatest numerical strength and also of a Leader of such party. If such a Leader is available, Mayor has to recognize him as a Leader of Opposition.
other words, Mayor cannot decide who is the Leader of In Opposition. The order dated 5th June, 2008 had directed Mayor to ascertain which claimant was enjoying the majority in party. Admittedly, no meeting of party was held thereafter, and no leader of opposition was elected by Party. Proceedings recorded on 16th June, 2008 by Mayor only mention that 20 Corporators submitted their written support to the petitioner, however, again it nowhere reflects that after 5th June, 2008 until 16th June, 2008, any meeting of Front was held and in it, the petitioner was elected as a Leader.
23. In the impugned order dated 30th August, 2008, the respondent no.2-Chief Minister has observed that ::: Downloaded on - 09/06/2013 14:49:51 ::: 30 Mayor has to write a letter to Front and obtain a report from it about its leader, so as to enable him to recognize that person as a Leader of Opposition in terms of Section 20-1E (1). Though we find that this direction issued by respondent no.2 suggests a correct procedure, which needs to be followed by the Front, because of present facts, we are not going into the correctness or otherwise or then propriety of issuing such direction by Appellate Authority to the Mayor.
24. Respondent no.2 has, while passing the impugned order, relied upon the provisions of Rule 10
(b) of the Rules of Front and noticed that a person who enjoys 75 per support of the Corporators in Front can only be stated to be its leader. It is this observation which has been questioned before us along with other contentions that as there is no Leader of Front, letter, even if written by Mayor to said Front, cannot be implemented. The relevant records of registration of Front as Municipal Party under the provisions of Maharashtra Local Authority Members Disqualification Act, 1986 and Rules framed thereunder maintained by respondent no.5-Divisional Commissioner ::: Downloaded on - 09/06/2013 14:49:51 ::: 31 were produced before us. We have perused those records and we go by statement on affidavit made by respondent no.6 that those Rules were received by his Office in 2008. Rule 3 of the Maharashtra Local Authority Members Disqualification Rules, 1987 stipulates that a leader of such Municipal Party has to submit to Divisional Commissioner a statement in writing containing the names of members of his party together with particulars as prescribed in Form-I, copy of Rules and Regulations of such Municipal Party, and if such party has any separate set of rules and regulations, also copy of such Rules and Regulations. This information is required to be furnished within 30 days of the date of formation of Municipal Party. The affidavit produced before us shows that communication about formation of Municipal Party sent by Maharashtra Pradesh Congress Committee was received by Divisional Commissioner s Office on 20th March, 2007 and that communication informed that President of Maharashtra Pradesh Congress Committee nominated one Sandeep Sahare, Corporator, as a Group Leader of Congress Party till further orders. The affidavit further mentions that a set of Bye-laws of Secular Democratic Front was ::: Downloaded on - 09/06/2013 14:49:51 ::: 32 also submitted on 2nd March, 2007 to the Office of Divisional Commissioner. Lastly, it has been mentioned that the Secular Democratic Front, i.e., Municipal Party submitted in the year 2008 a set of Rules/Bye-
laws and Regulations governing the Front. The affidavit, therefore, nowhere states that Form-I, as contemplated by Rule 3 of Maharashtra Local Authority Members Disqualification Rules, 1987, was received by respondents the office of respondent no.6.
have placed
The form on which the
reliance is merely a
communication. At this stage, learned Addl. Govt.
Pleader has pointed out to us that Form-I submitted by Shri Sandeep Sahare is available with her, which is kept in original records of the Office of respondent no.6. It is clear that the Disqualification Rules contemplate submission of Form-I by Leader of Municipal Party, and it is not the case of any of the parties before us that Shri Sandeep Sahare was at any time leader of such Municipal Party. The documents produced on record, on the basis of which the Front is claimed to have been registered, are only intimations to respondent no.6. The first intimation mentions name of Indian National Congress and it states that respondent ::: Downloaded on - 09/06/2013 14:49:51 ::: 33 no.6 is elected as Leader of Indian National Congress.
It is in pursuance of Section 40A (2) if 1948 Act. The second document is its copy, but then the words Secular Democratic Front appear in it. These documents do not form subject-matter of controversy before us in this Writ Petition. We find that in the absence of these documents before him, direction given by Chief Minister by accepting the concept of party majority of 75 per cent is unsustainable. We find that prima facie these documents cannot support the reasons given by respondent no.2-Chief Minister and cannot support the action of importing requirement of 75 per cent majority in Municipal Party, in order to enable a person to become a Leader of Opposition.
25. The various judgments considered by us above clearly show that it is for respondent no.4 Mayor to recognize a Leader of Municipal Party having greatest numerical strength to be the Leader of Opposition. The mode and manner in which it is to be done is left by statute to Mayor himself. Neither present petitioner, nor respondent no.6, at any point of time, placed any material before respondent no.4 to show that they have ::: Downloaded on - 09/06/2013 14:49:51 ::: 34 been elected as Leader of Municipal Party by the Party.
The communication sent by petitioner resulting into the action dated 28th April, 2008 only shows that he was enjoying support of 20 Corporators. The exercise of verification undertaken by respondent no.4 on 16th June, 2008 again shows that he was enjoying support of 20 Corporators. None of these orders demonstrates that he was elected as a Leader of Opposition by Municipal Party.
26. In the circumstances, though we do not find anything wrong with the operative part of the impugned order dated 30th August, 2008, by which the Chief Minister directed Mayor to write a letter to Municipal Party, namely Secular Democratic Front, to obtain its report about its leader, still for reasons recorded above, we quash and set aside the said order. However, in the circumstances, the exercise undertaken by respondent no.4 on 16th June, 2008 also cannot be sustained. The respondent no.4 Mayor has to obtain appropriate report from Secular Democratic Front, i.e., Municipal Party, about its leader and then recognize such leader as Leader of Opposition in terms of Section ::: Downloaded on - 09/06/2013 14:49:51 ::: 35 20-1E (1). Writ Petition is, thus, partly allowed.
However, in the circumstances of the case, there shall be no order as to costs.
JUDGE JUDGE
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