Bombay High Court
Sau. Sujata Wife Of Deorao Ahir vs The Akola Municipal Corporation on 21 November, 2009
Author: A.H. Joshi
Bench: A.H. Joshi, A.R. Joshi
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Writ Petition No.22 of 2009
Sau. Sujata wife of Deorao Ahir,
aged about 38 years,
occupation Corporator,
resident of Ward No.44, Krishinagar,
Akola, Tq. & Distt. Akola. .... Petitioner.
ig Versus
1. The Akola Municipal Corporation,
Akola, through its Commissioner.
2. The Divisional Commissioner,
Amravati Division,
Amravati.
3. Mahadeo son of Bhaiyyalal Bundele,
aged about adult,
occupation Member of Akola
Municipal Corporation, Akola,
resident of Ward No.43,
Vrindavannagar, Akola,
Tq. & Distt. Akola.
4. Bharip Bahujan Mahasangh,
Akola,
Distt. Unit, through
its Distt. President -
Shri Haridas Bhade,
resident of Dwarkanagari,
Jawahar Nagar,
Akola, Tq. & Distt.
Akola.
5. Bharip Bahujan Mahasangh,
Municipal Party in Akola,
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Municipal Corporation through
its Leader Shri Sunil
Tukaramji Meshram,
R/o Ward No.14, Siddarthnagar,
Akola, Tq. & Distt. Akola. .... Respondents.
*****
Mr. A.M. Gordey, Adv., for the petitioner.
Mr. Anup Dhore, Adv., for Respondent No.1.
Mr. M.A. Vaishnav, Adv., for respondent no.3 [absent].
Mr. G.G. Mishra, Adv., for respondent nos. 4 and 5
[absent]. ig *****
CORAM : A.H. JOSHI AND
A.R. JOSHI, JJ.
Date : 21st November,2009.
ORAL JUDGMENT [Per A.H. Joshi, J]:
1. Rule. Rule is made returnable forthwith. Heard finally by consent.
2. Facts can be briefly described as follows:-
[a] Petitioner is one amongst the group of Councilors belonging to respondent no.5, who is a section of Respondent no.4 Bharip Bahujan Mahasangh, Akola.::: Downloaded on - 09/06/2013 15:20:08 ::: 3
[b] Admittedly, the respondent no.3 is the Group Leader of the Political Party in Corporation respondent no.5.
[c] It is seen that the Party Leader of the Respondent No.4 a political party - directed the respondent no.3 by letter dated 25th February, 2008 [Annex.IV], to nominate the petitioner as a Member of Standing Committee.
[d] This letter [Annex.IV] is regarded by the petitioner to be a whip as noted therein.
[e] Respondent No.3, who is a Group
Leader, has nominated himself by
letter dated 26th Feb., 2008
[Annex.V] in disregard of whip
[Annex.IV].
[f] Based on the nomination done through
Annexure-V, the respondent no.3 has been nominated on the Standing Committee by the respondent nos. 1 and 2.
3. The petitioner has challenged Annexure-V own ::: Downloaded on - 09/06/2013 15:20:08 ::: 4 nomination by Respondent No.3 in this petition and as a result, has prayed for the relief, which reads as follows:-
(a) by an appropriate writ, order and/or direction, direct the respondent no.
1-Akola Municipal Corporation, Akola, and the respondent no.2- Divisional Commissioner, Amravati Division, Amravati, to delete the name of the respondent no.3 as a Member of the Standing Committee of the respondent no.1 Akola Municipal Corporation, Akola, and accept the name of the petitioner as a Member of the Standing Committee of the respondent no.1- Akola Municipal Corporation, Akola, in pursuance of the communication dtd. 26/2/2008 (Annexure-VIII).
[Quoted from page 20 of the Writ Petition paper-book].
4. Foundation of the prayer is based on petitioner s construction of Sub-section (2) of Section 31A of the Bombay Provincial Municipal Corporations Act, 1949. Section 31A is quoted below for ready reference 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 ::: Downloaded on - 09/06/2013 15:20:08 ::: 5 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
under section 31.
Committee appointed
(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 each such party or group;
Provided............
Provided further...............
(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.
[Note : Provisos to Sub-Section (2) are not quoted, as those are not relevant.]
5. Petitioner s construction of Sub-clause (2) ::: Downloaded on - 09/06/2013 15:20:08 ::: 6 quoted above, is that said Section lays down that the Councillors, who are members of a party or a group, will have to elect or nominate in accordance with the whip.
6. Learned Advocate for the petitioner has further argued that:-
[a] The whip given by the party to the Respondent No.3 was, in fact, given to all members of the respondent no.4. In the result, had the respondent no.4 observed democratic process and would have called the meeting, the party whip was bound to be obeyed and the respondent no.3 was under obligation to nominate the petitioner.
[b] Had the democratic process been followed by the respondent no.3, he would have been devoid of personal power and authority to nominate himself as a candidate other than one who may be elected in accordance with the whip, i.e., the petitioner.
7. Learned Adv., for the petitioner has placed reliance on following reported judgments to support his ::: Downloaded on - 09/06/2013 15:20:08 ::: 7 contention:-
[a] Dattabhau son of Annasaheb Pathrikar Vs. State of Mah. [2007 (3) Mh.L.J. 76], and [b] Narendra Gota Pardesi Vs. Mayor, Dhule Municipal Corporation, Dule & ors. [2007 (6) Mh.L.J. 216].
8. Perusal of Judgments discloses that these cases arose out of the matter of election of the Leader of Opposition. ig As per the law applicable, it was a case of numerical counting, and does not govern the situation as emerging in present case.
9. The language used in Section 31A (2) authorises nomination of Councillor on the Committee in following two stages:-
First - ascertaining proportion or number of members to be nominated, based on the strength of each registered or recognised party or group.
Second - consulting Leader of House,
the Leader of Opposition and
the Leader of each such party
or group to nominate the
councillors on Standing
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Committee.
10. The term each such party or group seen in
first stage indicated in the foregoing para shall have to be construed to be the rule directing the procedure for ascertaining number of nominations available per party or group. This is certainly a numerical job.
11.
Second stage in paragraph no.9 relates to the process of actual nomination.
12. What is seen contemplated for second stage in Section 31A (2) is the consultation as contemplated therein which reads as follows:-
after consulting the Leader of the House, the Leader of Opposition and the leader of each such party or group.
This process of consultation, thus, lays down that the nomination is upon indication of a name to be a member of the Committee nominated/assented by the Leader of the group or party concerned.
13. It is seen from what has emerged from analysis of first stage is that the consultation with Leader of ::: Downloaded on - 09/06/2013 15:20:08 ::: 9 House and Leader of Opposition is bare consultative, and directory in nature. It is not decisive of name of the person to be nominated/deleted.
14. What is seen decisive is consultation with the Leader of a political party or of the group who has power to nominate.
15. Reading of the Sub-section (2) of Section 33A of the said Act does not disclose that it lays down a scheme of nomination to be decided on number of members of group or party. The narration stops at consultation, and that too with leader only and not with the members of the party or group .
Had the terminology employed in Sub-section (2)of Section 31A aforesaid been Party or Group only than the group of words Leader of party or group , in that case, even in absence of description of elective process, the member to be nominated was liable to be elected by democratic process, as consultation was bound to be with members, which may have meant voting. However, elective process is neither expressed or implied.
::: Downloaded on - 09/06/2013 15:20:08 ::: 1016. It is seen that petitioner has impleaded the respondent nos. 4 and 5, however, it appears that the person or persons in the harness of the party do not favour the factual matter and legal propositions on which the petitioner has a very strong thrust and faith.
17. In the present case, admittedly, no.3 is a leader. He has preferred to nominate himself.
respondent Petitioner did not array other councillors from her group as respondents, which may have at least indicated that whether the democracy in her party is on the side of the petitioner.
18. It is, thus, clear that scheme of the Act does not provide for democratic elective process. What is not expressed in statute, cannot be infused by a judicial act.
19. Petitioner s claim is, therefore, without any foundation of a right in the statute, has no merit, and is rejected.
::: Downloaded on - 09/06/2013 15:20:08 ::: 1120. Rule is discharged. In the circumstances, parties shall bear own costs.
JUDGE JUDGE
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