Bombay High Court
Rajaram Appa Patil And Another vs The State Of Maharashtra And Others on 27 April, 2018
Equivalent citations: AIRONLINE 2018 BOM 1071
Author: S.V.Gangapurwala
Bench: S.V.Gangapurwala, A.M. Dhavale
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REPORTED
IN THE HIGH COURT OF JUDICATURE
AT BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.246 OF 2017
WITH
CIVIL APPLICATION NO.15377 OF 2017.
IN
WRIT PETITION NO.246 OF 2017
1. Rajaram Appa Patil,
Age 48 years, Occ.Agril.,
R/o Jagmohandas Nagar,
Parola, Tq. Parla,
Dist.Jalgaon.
2. Mangesh Sudhakar Tambe,
Age 45 years, Occ.Service,
R/o Mahadeo Square, Parola,
Tq.Parola, Dist.Jalgaon. ... Petitioners.
Versus
The State of Maharashtra
through Principal Secretary,
Urban Development Department,
Mantralaya, Mumbai-32.
2. District Collector,
Dist.Jalgaon.
3. President,
Municipal Council, Parola,
Tq. Parola, Dist.Jalgaon.
4. Bapu Tukaram Mahajan,
Age 42 years, Occ.Business,
R/o Vyanktesh Nagar,
Parola, Tq. Parola,
Dist.Jalgaon. ... Respondents.
...
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Mr.M.S.Deshmukh, advocate for the petitioners.
Mr.A.V.Deshmukh, A.G.P. for the State.
Mr.B.R.Warma, advocate for Respondent No.3.
Mr.S.P.Shah, advocate for Respondent No.4.
...
CORAM : S.V.GANGAPURWALA AND
A.M. DHAVALE,JJ.
Reserved on : 18.04.2018.
Pronounced on: 27.04.2018.
JUDGMENT (Per S.V.Gangapurwala,J.)
1. Rule. Rule returnable forthwith. With the consent of the learned counsel for parties, the petition is taken up for final hearing.
2. Mr.Deshmukh, learned counsel for the petitioners submits that the petitioner No.2 is elected as councillor of Municipal Council, Parola, in the General Elections held on 28.11.2016 as candidates of Shivsena party. The petitioner No.1 is the leader of the Municipal party/Aaghadi. Five councillors are elected of Shivsena party and the Shivsena party is registered in the Municipal Council, Parola as per Section 63(2B) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965.
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3. Two councillors are required to be nominated as nominated councillors in the Municipal Council, Parola as per Section 51B of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 and Rules 2003. Considering the strength of parties Shahar Vikas Aaghadi with one independent councillor as well as Bhartiya Janata Party are entitled to submit nominations of one qualified person to be appointed as nominated councillor before 24 hours of scheduled programme through its leader of party. The BJP did not recommend name of any person for appointment as a nominated councillor for the election to be held in Special Meeting dated 30.12.2016. Shahar Vikas Aaghadi, nominated one Mr.Nitin Dattatraya Sonar. Shivsena party nominated petitioner No.1 for appointment as nominated councillor within the stipulated period.
Mr.Deshmukh, learned counsel further submits that the petitioner No.1 is qualified to be appointed as a nominated councillor, however, under the impugned order dated 29.12.2016, the ::: Uploaded on - 02/05/2018 ::: Downloaded on - 04/05/2018 00:53:09 ::: 4 District Collector, refused to recommend name of petitioner No.1 for appointment as a nominated councillor by endorsing as ineligible/disqualified. However, no reasons were provided. The learned counsel submits that the Respondents are contending that Shivsena political party has only five elected councillors in the house, as such is not entitled to recommend name of any person for the post of nominated councillor. This view is contrary to the provisions of Section 9(1)(b) and Section 63(2B) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 and Rule 5 of the Maharashtra Municipal Councils and Nagar Panchayats (Qualifications and Procedure For Appointment of Nominated Councillors) Rules, 2010. According to the learned counsel, two posts for nominated councillors are to be filled in the Special Meeting dated 30.12.2016. In respect of these posts, the present petitioner No.1 and one Mr.Nitin Sonar submitted their nominations recommended by Shivsena party and Shahar Vikas Aaghadi respectively. Besides these two ::: Uploaded on - 02/05/2018 ::: Downloaded on - 04/05/2018 00:53:09 ::: 5 nominations, no other nomination form was submitted. None of the parties raised any objection to the nomination of the petitioner No.1, still, only the nomination of Mr.Nitin Sonar was accepted and the second seat remained vacant. The learned counsel submits that though BJP had a greater strength of councillors in the house, the said party did not nominate any person nor raised objection to the nomination of the petitioner. It choose not to nominate any person. In such a case, there was no impediment for nominating the present petitioner No.1. It is within the powers of the Collector to nominate any person. The order being illegal deserves to be set aside.
4. Learned A.G.P. submits that the Collector has taken into account the relative strength of recognised parties or registered parties and has to nominate members as nearly as may be, in proportion to the strength of such parties or groups in the Council. Only two posts for nominated councillors are available. Shahar Vikas Aaghadi was the one party which could have ::: Uploaded on - 02/05/2018 ::: Downloaded on - 04/05/2018 00:53:09 ::: 6 nominated as per its strength and the other party eligibility to nominate is BJP. Shivsena party could not have nominated the councillor. The Collector has correctly passed the order.
5. Mr.Shah, learned counsel for Respondent No.4 submits that BJP only has a right to nominate the councillor. The nomination of petitioner No.1 is rightly rejected. Now in the ensuing meeting BJP can nominate one councillor. If the nomination of the petitioner is rejected, he can file a dispute U/s 21 of the Act. The Respondent No.4 is a valid voter, can challenge the nomination of the petitioner No.1. The learned counsel relies on the judgment of the Division Bench of this Court in the case of "Sharanbasappa Rachappa Khambad Vs. State of Maharashtra and others" reported in 2014 (4) Mh.L.J. 293 and the judgment of the Division Bench of this Court in the case of "Vinod S/o Gopichand Rathod Vs. State of Maharashtra and others" reported in 2013 (3) Mh.L.J. 833 and upon the judgment in the case of "Kiran Ramchandra Suryavanshi Vs. State of Maharashtra and others" ::: Uploaded on - 02/05/2018 ::: Downloaded on - 04/05/2018 00:53:09 ::: 7
reported in 2013 (2) Mh.L.J.433.
6. Mr.Deshmukh, learned counsel for the petitioners also relied on the judgment in the case of "Vinod Gopichand Rathod Vs. State of Maharashtra and others" referred to supra.
7. It appears from the record that Shivsena party has five councillors. Two councillors can be nominated as per relative strength. The Municipal Council consist of total 21 councillors. It would be relevant to refer to Section 63 (2B) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965. The same reads thus :
"63. x x x x (2B) In nominating the Councilors,the Collector shall take into account the relative strength of recognised parties or registered parties or registered parties or groups and nominate members, as nearly as may be, in proportion to ::: Uploaded on - 02/05/2018 ::: Downloaded on - 04/05/2018 00:53:09 ::: 8 the strength of such parties or groups in the Council after consulting the leader of each such party or group :
Provided that, the relative strength of the recognised parties or registered parties or groups or aghadi or front shall be calculated by first dividing the total number of Councillors by the total strength of members of the Committee. The number of Councillors of the recognised parties or registered parties or groups or aghadi or front shall be further divided by the quotient of this division. The figures so arrived at shall be the relative strength of the respective recognised parties or registered parties or groups or aghadi or front. The seats shall be allotted to the recognised parties or registered parties or groups or aghadi or front by first considering the whole number of their ::: Uploaded on - 02/05/2018 ::: Downloaded on - 04/05/2018 00:53:10 ::: 9 respective relative strength so ascertained. After alloting the seats in this manner, if one or more seats remain to be allotted, the same shall be allotted one each to the recognised parties or registered parties or groups or aghadi or front in the descending order of the fraction number in the respective relative strength starting from the highest fraction number in the relative strength, till all the seats are allotted.
Provided further that, for the purpose of deciding the relative strength of the recognised parties or registered parties or groups, under this sub-section, the recognised parties or registered parties or groups, or elected Councillor not belonging to any such party or group may, notwithstanding anything contained, in the Maharashtra Local Authority Members' Disqualification ::: Uploaded on - 02/05/2018 ::: Downloaded on - 04/05/2018 00:53:10 ::: 10 Act, 1966 (Mah.XX of 1987), within a period of not more than 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 pre-poll aghadi or front."
8. As per the relative strength of the parties Shahar Vikas Aghadi and BJP could have nominated the persons of their choice fulfilling the qualification as prescribed under the Maharashtra Municipal Councils and Nagar Panchayats (Qualifications and Procedure For Appointment of Nominated Councillors) Rules, 2010. Rule 4 gives the list of various persons who can be nominated councillors. Rules 3 and 4 of Rules 2010, are relevant. The same are reproduced thus :
"3. Determination of number of nominated Councillors. - Subject ::: Uploaded on - 02/05/2018 ::: Downloaded on - 04/05/2018 00:53:10 ::: 11 to the provisions of Rule 4, the Collector shall nominate such number of Councillors, not exceeding ten per cent of the total number of elected councillors or five, whichever is less, at the first meeting of the Council after the election of the President and Vice-president.
Provided that, while
determining the number of nominated
Councillors, a fraction of less than one-half shall be ignored and a fraction of one-half or more shall be reckoned as one.
4. Qualification for nomination. - A person shall be eligible for being nominated as a candidate for the office of the nominated Councillors if he has special knowledge or experience in municipal administration and he, -
(a) has been a recognised
and registered medical practitioner
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in the State for a minimum period of five years, or
(b) has been an educationist including retired Professor, Lecturer, Principal, Head-
master, etc. of a recognised school or college for a minimum period of five years, or
(c) has been a Chartered Accountant or Cost Accountant for a minimum period of five years, or
(d) possesses a degree in enginering from a recognised University and has professional experience for a minimum period of five years, or
(e) has been an Advocate for a minimum period of five years or is a person possessing degree in Law from a recognised University with an experience in the legal field in the State for a minimum period of five years, or
(f) has experience of ::: Uploaded on - 02/05/2018 ::: Downloaded on - 04/05/2018 00:53:10 ::: 13 working for not less than five years as the Chief Officer of a Municipal Council or as Assistant Commissioner or the Deputy Commissioner or experience of not loess than two years as the Commissioner of a Municipal Corporation, and has retired from service, or
(g) has experience of not less than five years as an office bearer of a Non-Government Organisation registered under the Bombay Public Trusts Act, 1950 engaged in Social Welfare activities, working within the area of a Municipal Corporation or a Council."
9. It can not a matter of debate that in nominating the councillors, the Collector shall take into account the relative strength of recognised parties or registered parties and nominate members, as nearly as may be in proportion to the strength of such parties. As observed supra two councillors could be ::: Uploaded on - 02/05/2018 ::: Downloaded on - 04/05/2018 00:53:10 ::: 14 nominated. Considering the relative strength of the recognised parties, one candidate each could be nominated by Shahar Vikas Aghadi and BJP but the BJP choose not to nominate any candidate.
10. The BJP on its own volition did not nominate any councillor. Shivsena party tendered nomination of petitioner No.1 for nominated councillor. Reading Section 63(2B) and Rule 5 of the Maharashtra Municipal Councils and Nagar Panchayats (Qualifications and Procedure For Appointment Of Nominated Councillors) Rules, 2010, it is explicit that in nominating the councillors, the Collector has to take into account the relative strength of recognised parties or registered parties or groups or nominated members as nearly as may be in proportion to the strength of such parties or groups in the Council. First proviso to Rule 5 of Rules 2010, further states that nothing contained in Rule 5 shall be construed as preventing the Collector from nominating any member not belonging to any such party or group. ::: Uploaded on - 02/05/2018 ::: Downloaded on - 04/05/2018 00:53:10 ::: 15
11. Section 63(2B) and Rule 5 read in juxta position, it does not envisage a situation where a party having a better relative strength of councillors do not forward the name of a person to be nominated as a councillor. The provision in the statute and the Rule is silent in this regard. In such a situation, the party whose strength of councillors is less is not prohibited from putting forth its candidate for nomination, of-course, the said candidate should be qualified as prescribed in Rule 4 of Rules 2010. There is no embargo either in the statute or the Rules for a party which has less strength of councillors from proposing a nominated councillor. If there are only two posts for nominated councillors and a party having a higher strength of councillors does not recommend name of any person for a nominated councillor and a party possessing less strength has proposed the name of a candidate for the post of nominated councillor, the same can not be rejected on the ground that the said party recommending him has less strength of councillors. The seat of nominated councillors need not go vacant and the same is not the ::: Uploaded on - 02/05/2018 ::: Downloaded on - 04/05/2018 00:53:10 ::: 16 purport of Section 63(2B) of the Act and Rule 5 of the Rules 2010.
12. While construing the provision in the statute, we will have to consider the object and purpose of the statute and the provision. Statute can not be construed as theorems of euclid. The provision will have to be construed in the light of the general purpose of the statute. The dominant purpose that it may express. The provisions of the statute and the Rules will have to be given an interpretation that would make the provision workable. Section 63(2B) empowers the Collector to take into account the relative strength of recognised parties and nominate members as nearly as may be in proportionate to the strength of such parties or groups in the Council. The said provision can not be read in a manner that if the party possessing higher strength of Councillors does not nominate any candidate then still the party with a lesser strength should not nominate or the candidate nominated by such party should not be considered. No canons of interpretation lead us ::: Uploaded on - 02/05/2018 ::: Downloaded on - 04/05/2018 00:53:10 ::: 17 to such conclusion.
13. In light of the above, the impugned communication is quashed and set aside. The Collector shall consider the nomination of petitioner No.1 recommended by the Shivsena party as per the position existing on 30.11.2016 i.e. the date of special meeting for selection/election of nominated Councillors on its own merits as required under Rule 4 of the Maharashtra Municipal Councils and Nagar Panchayats (Qualifications and Procedure For Appointment of Nominated Councillors) Rules, 2010.
14. Rule made absolute in above terms. No costs.
15. The Civil Application also stands disposed of.
Sd/- Sd/-
(A.M.DHAVALE,J.) (S.V.GANGAPURWALA,J.)
asp/office/wp246.2017
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