Bombay High Court
Mahanagar Sudhar Samiti vs Akola Municipal Corporation on 8 May, 2012
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari, A.P. Bhangale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 1426 OF 2012
Mahanagar Sudhar Samiti,
Akola Municipal Corporation,
through its Leader Shri Harish
Ratanlal Alimchandani, aged
52 years, occupation - business,
resident of Alshi Plots, Akola. ... PETITIONER
Versus
1. Akola Municipal Corporation,
through Municipal Commissioner,
Akola.
2. The Hon'ble Mayor,
Akola Municipal Corporation,
Akola.
3. The Divisional Commissioner,
Amravati Division, Amravati.
4. Akola Vikas Maha Aghadi,
through its Leader Madan
Bodulal Bhargad, aged adult,
resident of Geeta Nagar bypass,
Akola.
5. Sanjay Babulal Badone,
aged adult, resident of in the
backside of Sarkari Godown,
Khadan, Akola.
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6. Smt. Madhuri Sanjay Badone,
aged adult, resident of in the
backside of Sarkari Godown,
Khadan, Akola. ... RESPONDENTS
Shri A.M. Gordey, Senior Advocate with Mrs. R.D. Raskar,
Advocate for the petitioner.
Shri P.C. Madkholkar, Advocate for respondent No. 1.
Shri S.V. Manohar, Senior Advocate with Shri N. Gaikwad,
Advocate for respondent No. 2.
Shri N.W. Sambre, Government Pleader for respondent No. 3.
Shri G.B. Lohiya, Advocate for respondent No. 4.
Shri A.S. Dhore, Advocate for respondents No. 5 & 6.
.....
CORAM : B.P. DHARMADHIKARI &
A.P. BHANGALE, JJ.
DATE OF RESERVING THE JUDGMENT : APRIL 26, 2012.
DATE OF PRONOUNCING JUDGMENT : MAY 08, 2012.
JUDGMENT :(Per B.P. DHARMADHIKARI, J.) Looking to the nature of controversy and as interim order has been granted by this Court, we have accepted the request of the parties to decide the matter finally at the stage of admission itself. Accordingly, we have heard Shri Gordey, Senior ::: Downloaded on - 09/06/2013 18:35:15 ::: wp1426.12 3 Advocate with Mrs. Raskar, Advocate for the petitioner, Shri Madkholkar, learned counsel for respondent No. 1, Shri Manohar, Senior Advocate with Shri Gaikwad, Advocate for respondent No. 2, Shri Sambre, Government Pleader for respondent No. 3, Shri Lohiya, learned counsel for respondent No. 4, Shri Dhore, learned counsel for respondents No. 5 & 6, by making rule returnable forthwith.
2. The challenge in this petition filed under Article 226 of Constitution of India is to resolution dated 20.03.2012 passed in General Body Meeting of Akola Municipal Corporation, insofar as the determination of respective strength of the members representing the petitioner and Respondent No. 4 on Standing Committee & consequential nominations thereto is concerned.
According to the petitioner, it is entitled to six members and Respondent No. 4 should have been given seven members on Standing Committee which consists of total 16 members.
Respondents No. 1 & 2 have given eight representatives to ::: Downloaded on - 09/06/2013 18:35:15 ::: wp1426.12 4 Respondent No. 4 and five representatives to the present petitioner. The basic facts are not much in dispute.
3. In General elections of respondent No. 1 -
Corporation held on 16.02.2012, total 73 Corporators have been elected. The petitioner - Samiti claims that it has total membership of 26 in the House. Respondent No. 4 is having only 33 members while Shiv Sena has eight Corporators, Akola Shahar Vikas Aghadi has five Corporators and there is one independent. According to the respondents, the petitioner has got 24 Corporators while Respondent No. 4 has got 35 Corporators. There is no dispute about number of Corporators with other three parties / groups above. The petitioner claims that Respondent Nos. 5 & 6 Corporators are from their Samiti while Respondent No. 4 has urged that they belong to their Aghadi. In meeting conducted on 20.03.2012, Respondents No. 1 & 2 have treated Respondents No. 5 & 6 as members of Respondent No. 4 - Aghadi. Respondent Nos. 5 & 6 also ::: Downloaded on - 09/06/2013 18:35:15 ::: wp1426.12 5 disclosed in the meeting that they have opted to join Respondent No. 4 - Aghadi.
4. In this background, Shri Gordey, learned Senior Advocate has pointed out that on 03.03.2012, information as required by Rule 3 of Maharashtra Local Authority Members' Disqualification Rules, 1987 (hereinafter referred to as Disqualification Rules) has been furnished by the petitioner to Respondent No. 3 - Divisional Commissioner, Amravati Division, Amravati. In that they have disclosed 23 Corporators as belonging to the petitioner - Samiti. These 23 consists of 18 Corporators elected on BJP symbol, one elected on Maharashtra Nav Nirman Sena (MNS) symbol and four independents. These four independents included Respondents No. 5 & 6 also. On 04.03.2012, this information was forwarded by the Municipal Commissioner of Respondent No. 1 - Corporation to the Divisional Commissioner. On 13.03.2012, the petitioner submitted a further change pointing out that three Corporators ::: Downloaded on - 09/06/2013 18:35:15 ::: wp1426.12 6 have again joined them and thus their strength increased to 26.
Respondent No. 4 had submitted similar application on 9th March and pointed out its strength to be 33 Corporators. On 16.03.2012, Respondent No. 4 informed Respondent No. 3 -
Divisional Commissioner that Respondents No. 5 & 6 have joined their Aghadi. On 17.03.2012, the petitioner filed its objection to this change before the Divisional Commissioner.
5. Shri Gordey, learned Senior Advocate contends that thus, Respondents No. 1 & 2 ought to have computed total strength of Respondent No. 4 to be 33 and should have allotted them representation of seven members on Standing Committee.
The strength of the petitioner should have been computed at 26 and it should have been awarded six members. He contends that act of respondents No. 1 & 2 in treating Respondents No. 5 & 6 as members of Respondent No. 4 - Aghadi is bad and unsustainable. Our attention has been invited to objections raised in this respect by the petitioner on 20.03.2012 during the ::: Downloaded on - 09/06/2013 18:35:15 ::: wp1426.12 7 meeting and its consideration.
6. The provisions of Rules 3, 4 & 5 of Disqualification Rules are pressed into service to show how information as required to be submitted and its sub-rule (4) of Rule 3 is pointed out to urge that said sub-rule contemplates intimation of further change. This further change has been intimated in relation to Respondents No. 5 & 6 by Respondent No. 4 on 16.03.2012 to Respondent No. 3. The requirement of submitting Form No. I & III is also pressed into service. It is urged that sub-rule (4) obliges every Councillor to submit similar information and that information was also submitted to Respondent No. 3 by Respondents No. 5 & 6, that information was got verified and hence Respondent No. 3 was satisfied that Respondents No. 5 & 6 are belonging to the petitioner - Samiti. Rule 4 sub-rule (3) is read out to show that a summary of information is required to be published in Maharashtra Government Gazette and if any discrepancy therein is pointed out to the satisfaction of ::: Downloaded on - 09/06/2013 18:35:15 ::: wp1426.12 8 Respondent No. 3 - Commissioner, he has to issue necessary corrigendum which is required to be published in the Gazette.
Rule 5 requires the Commissioner to maintain in Form No. IV a register of such information which is only an administrative procedure and the learned Senior Advocate argues that it is ministerial act which does not involve any enquiry or adjudication.
7. The affidavit filed by Respondent No. 3 - Divisional Commissioner is read out to this Court to show that he is considering change reported to him by Respondent No. 4 on 16.03.2012 as per rule 3(4) of Disqualification Rules. Till that verification is over, Respondents No. 5 & 6 ought to have been accepted and treated as members of the petitioner.
8. The support is being taken from the judgment of the Division Bench of this Court in the case of Vasant vs. Municipal Corporation of City of Nashik, reported at 2007 (4) Mh. L.J. 871, ::: Downloaded on - 09/06/2013 18:35:15 ::: wp1426.12 9 Full Bench judgment of this Court in the case of Jayram vs. Secretary, U.D.D. Mumbai, reported at 2010 (3) Mh.L.J. 465 and judgment of the Hon'ble Apex Court in the case of Somnath Chintaman Vaskar vs. State of Maharashtra, reported at 2008 (6) ALL MR 897. The learned Senior Advocate has further argued that the exact representation available to each group or party in Standing Committee could not have been worked out till respective party's total strength is assessed by Respondent No. 3.
In this situation, he contends that the proceedings conducted on 20.03.2012 are in violation of provisions of Section 31A of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as Corporation Act) and being unsustainable, the same are liable to be quashed and set aside.
9. Shri Madkholkar, learned counsel for respondent No. 1 - Corporation has relied upon the Minutes of the Meeting dated 20.03.2012 to point out the respective strength. He states that Respondent No. 4 gave necessary information to Respondent ::: Downloaded on - 09/06/2013 18:35:15 ::: wp1426.12 10 No. 3 on 13.03.2012 in respect of its 33 Corporators and on 16.03.2012 sought addition of Respondents No. 5 & 6, thus, raising their strength to 35. He relies upon Section 34 of the Corporation Act to urge that even if Respondents No. 5 & 6 are held to be disqualified, the proceedings are not rendered void or bad. He also relied upon the provisions of Section 451 of the Corporation Act to submit that an alternate and equally efficacious remedy is available to the petitioner and hence this Court should not interfere in writ jurisdiction. The support is being taken from the Division Bench judgment of this Court in the case of Suresh Jagannath Patil vs. State of Maharashtra, reported at 2011 (6) ALL MR 64, for said purpose. He argues that till Respondents No. 5 & 6 are duly adjudicated and found to be disqualified, they continue as Corporator. He further contends that initial strength of the petitioner was 24 and hence there is no change in their representation on Standing Committee in present facts. He invites attention to affidavit filed by the Divisional Commissioner to show that the petitioner is ::: Downloaded on - 09/06/2013 18:35:15 ::: wp1426.12 11 registered with strength of 24 Corporators and hence they cannot make any grievance before this Court. The declaration by the Divisional Commissioner that the cases of Respondents No. 5 & 6 - Corporators are kept in abeyance till verification proceedings are complete and final decision is taken, is also relied upon for this purpose.
10. Shri Manohar, learned Senior Advocate for respondent No. 2 - Mayor has invited attention to prayer clause in the petition to show that the petitioner claims six representatives in Standing Committee. The petitioner pleaded defection by Respondents No. 5 & 6 to Respondent No. 4 and hence petitioner - Samiti can never reach the strength of 26.
Therefore, its quota cannot exceed five. As there is no prayer to bring down the strength of Respondent No. 4 from 35 to 33, the quota of eight given to Respondent No. 4 cannot be reduced. He has further invited attention to minutes as recorded on 20.03.2012 to urge that in open House, Respondents No. 5 & 6 ::: Downloaded on - 09/06/2013 18:35:15 ::: wp1426.12 12 have expressed their support to Respondent No. 4. He then relied upon the provisions of Section 3 of Maharashtra Local Authority Members Disqualification Act, 1986 (hereinafter referred to as Disqualification Act), particularly Section 3(1)(a) to show that the claim of 26 members by petitioner is unsustainable. The petitioner has not pointed out registration of its Samiti as required by Rule 5 of Disqualification Rules and hence the effort to show defection of Respondents No. 5 & 6 is irrelevant. He has also relied upon the provisions of Section 31A of the Corporation Act to urge that second proviso to its sub-
section (2) contemplates a deviation and enables members of registered or recognized parties to join with independents to form new Aghadi. He contends that such Aghadi, if formed, lasts only for the purposes of Section 31A. He has placed reliance upon the judgment of the Hon'ble Apex Court in the case of Jeevan Chandrabhan Idnani vs. Divisional Commissioner, Konkan Bhavan, reported at (2012) 2 SCC 794, for this purpose. To demonstrate when process of registering a party i.e. Samiti or ::: Downloaded on - 09/06/2013 18:35:15 ::: wp1426.12 13 Aghadi is complete, he has placed reliance upon the judgment in the case of Sadashiv H. Patil vs. Vithal D. Teke, reported at (2000) 8 SCC 82.
11. The affidavit of Divisional Commissioner is also pressed into service by him to show that even under Disqualification Act and Rules, said officer has found 24 Corporators with the petitioner and claim for Respondents No. 5 & 6 has been kept in abeyance. Respondents No. 5 & 6 on 20.03.2012 in Open House expressed their support to Respondent No. 4 and hence strength of Respondent No. 4 has been rightly assessed at 35. He contends that Respondents No. 5 & 6 formed a group and that group joined Respondent No. 4 which is in accordance with the provisions of Section 31A(2).
He is taking support from the judgment in the case of Bhagwati vs. Divisional Commissioner, New Bombay, reported at 2010 (1) Mh. L.J. 773.
::: Downloaded on - 09/06/2013 18:35:15 ::: wp1426.12 1412. Shri Sambre, learned Government Pleader has briefly taken stock of the situation as already disclosed above and has pointed out that the Divisional Commissioner is looking into the claim of change qua Respondents No. 5 & 6. According to him, in this situation, the decision taken by Respondent No. 2 in determining the strength of Respondent No. 4 as 35, does not call for any interference.
13. Shri Lohia, learned counsel for respondent No. 4 has invited attention to provisions of Section 31A(3) of the Corporation Act and contended that Corporation is the final authority insofar as determination of respective strength is concerned. In addition, he has pointed out that 16 members nominated to constitute Standing Committee are not parties before this Court and hence writ petition is liable to be dismissed.
14. Shri Dhore, learned counsel on behalf of Respondents ::: Downloaded on - 09/06/2013 18:35:15 ::: wp1426.12 15 No. 5 & 6 has adopted the arguments of Shri Manohar, learned Senior Advocate and Shri Lohiya, learned counsel and he has stated that Respondents No. 5 & 6 have supported Respondent No. 4 and were never part of the petitioner - Samiti.
15. In his reply arguments, Shri Gordey, learned Senior Advocate has urged that if four contingencies envisaged in Section 451 of the Corporation Act are fulfilled, then only power thereunder may be exercised by State Government. He contends that Section 31A(3) gives finality to proceedings conducted on 20.03.2012 and hence Section 451 jurisdiction cannot be exercised by State Government in relation thereto. He has further pointed out that Section 451 does not cast duty or obligation upon the State Government to exercise its power under it and hence it cannot be viewed as a remedy. The petitioner cannot invoke it as of right.
16. The judgment of the Hon'ble Apex Court in the case ::: Downloaded on - 09/06/2013 18:35:15 ::: wp1426.12 16 of Everest Apartments Coop. Housing Society Ltd. vs. State of Maharashtra, reported at AIR 1966 SC 1449, taking similar view on Section 154 of Maharashtra Cooperative Societies Act, 1960, and unreported judgment dated 21.02.2012 delivered in Writ Petition No. 3426 of 2011 (Smt. Sudhabai Manohar Meshram & Ors. vs. Wasudeo Chattumal Jhamnani & Ors.) is relied upon by him for this purpose. He contends that the Divisional Commissioner had called for verification report on 19.03.2012 from the Municipal Commissioner and on that date Respondents No. 5 & 6 were already with the petitioner. The petitioner disclosed their allegiance on 03.03.2012 while Respondent No. 4 sought change on 16.03.2012. There was no dispute about Respondents No. 5 & 6 being members of the petitioner-Samiti till 16.03.2012. He, in this background, reiterates that making entries on separate page in a Register as per Rule 5(1) of Disqualification Rules is not registration of information. He relies upon the affidavit of the Divisional Commissioner to show that the Divisional Commissioner is really inquiring into alleged ::: Downloaded on - 09/06/2013 18:35:16 ::: wp1426.12 17 defection of Respondents No. 5 & 6 and the claim of Respondent No. 4 that they are its members. Attention is invited to Rule 3(4) for this purpose. He contends that till this change is accepted, Respondents No. 5 & 6 remain members of the petitioner.
Hence, Mayor could not have on 20.03.2012, acted upon oral declaration of Respondents No. 5 & 6 and increased strength of Respondent No. 4 from 33 to 35.
17. On the aspect of non-joinder of parties, the learned Senior Advocate states that it is the interest of parties to have more number of representatives on Standing Committee and it is their privilege and there is no corresponding right in individual.
The petitioner has not challenged nomination of any particular individual but has only challenged proportionate representation given to it and Respondent No. 4. Hence, it was not necessary to join all Standing Committee Members.
18. Shri Manohar, learned Senior Advocate with the leave ::: Downloaded on - 09/06/2013 18:35:16 ::: wp1426.12 18 of Court added that defection under Disqualification Rules can be presumed if Respondents No. 5 & 6 are shown to have voluntarily quit petitioner - Samiti and joined Respondent No. 4
- Aghadi, & in the absence of this material, petition has to fail.
He further states that as per second proviso to Section 31A(2) of the Corporation Act, Disqualification Act and Rules apply only after registration of party and till such registration, a Corporator is free to change the side. Shri Gordey, learned Senior Advocate does not accept this contention.
19. The first objection about availability of alternative and equally efficacious remedy raised by Shri Madkholkar, learned counsel needs to be considered. Section 451 of the Corporation Act empowers the State Government to suspend or rescind any resolution or order or then any act about to be done on behalf of the Corporation or any authority, if it is in contravention of or in excess of powers conferred by or under Corporation Act or any other law for the time being in force.
::: Downloaded on - 09/06/2013 18:35:16 ::: wp1426.12 19The said recourse is also open if the impugned step is likely to lead to breach of peace or to cause injury or annoyance to the public or likely to lead to abuse or misuse or waste of Municipal funds against the interest of public. The State Government, in that event by an order in writing, may suspend the execution of such resolution or order or prohibit the doing of any such act for such period or periods as it may specify therein. The Corporation or the Commissioner is given power to make representation to State Government against such direction and then State Government after considering it, may either cancel, modify or confirm the order. If the order or direction is confirmed, the impugned step is deemed to have been quashed or rescinded. This provision, therefore, is not a remedy made available to an independent which can be resorted to as a matter of right. It has got limitations as are apparent from Section 451(1). In present facts, Respondent No. 3 - Divisional Commissioner has come up with an affidavit that he is looking into the claim that Respondents No. 5 & 6 have joined ::: Downloaded on - 09/06/2013 18:35:16 ::: wp1426.12 20 Respondent No. 4 - Aghadi. He has also stated that the petitioner - Samiti has been registered by him only with 24 members. The facts noted by us, raised various questions which need to be gone into by Respondent No. 3 under the provisions of Disqualification Act and Rules framed thereunder. Those questions cannot be gone into by State Government under Section 451 of the Corporation Act.
20. The Division Bench judgment in Suresh Jagannath Patil vs. State of Maharashtra (supra) was required to consider the effect of availing of such remedy. There, the remedy was already invoked. This Court then found that while effecting nominations under Section 31A of the Corporation Act, the act of nomination must manifest itself in the shape of a resolution.
This Court noted absence of such resolution and also contradiction between minutes of General Body meeting and its result, as recorded. Therefore, interference by State under S. 451 was sustained.
::: Downloaded on - 09/06/2013 18:35:16 ::: wp1426.12 2121. Shri Gordey, learned Senior Advocate has invited attention to various judgments delivered under the Maharashtra Cooperative Societies Act, 1960, or Maharashtra Land Revenue Code, 1966, to show that even a statutory remedy of revision is not found to be an alternative and equally efficacious remedy as it cannot be invoked by aggrieved person as of right. The Courts while considering Section 257 of the Maharashtra Land Revenue Code or Section 154 of the Maharashtra Cooperative Societies Act, have noted that the revisional authority was not duty bound to exercise jurisdiction conferred upon it. The Hon'ble Apex Court in Everest Apartments Coop. Housing Society Ltd. vs. State of Maharashtra, (supra) has found that Section 154 of the Maharashtra Cooperative Societies Act possess potential but was not compulsive. In view of our findings reached above, it is not necessary for us to go delve more into these niceties in this case.
We, therefore, find that the preliminary objection of alternative remedy is misconceived in present facts. It is well-settled that such remedy is not an absolute bar & does not prohibit the High ::: Downloaded on - 09/06/2013 18:35:16 ::: wp1426.12 22 Court from exercising its extra-ordinary jurisdiction in appropriate facts and circumstances.
22. General elections of Respondent No. 1 to elect Councillors from all wards have been held on 16.02.2012.
Tenure of Corporation is 5 years as per Section 5 of Corporation Act and it commences on date of first meeting. Tenure of Councilors is also 5 years and co-terminus with Corporation. As per Section 19, Mayor & Deputy Mayor are to be elected in first meeting after general elections & here that first meeting was held on 9.03.2012. Petitioner Samiti furnished information as per Rule 3(1) of Disqualification Rules on 3.3.2012. Respondent No. 4 gave that information on 9.3.2012. Information given by Petitioner contained names of Respondents No. 5 & 6 as their supporters and Respondent No. 4 had not staked any claim to Respondents Nos. 5 & 6 till 16.03.2012. Thus on the date of election of Mayor Petitioner Samiti had 23 members while membership of Respondent No. 4 was 33. Petitioner gave ::: Downloaded on - 09/06/2013 18:35:16 ::: wp1426.12 23 additional information about change on 13.03.2012. They wanted to add three other members as their supporters and raise their strength to 26. Till 16.03.2012, nobody could have disputed that Petitioner had 26 councilors on its side.
23. Respondent No. 4 made claim to support of Respondents No. 5 & 6 on 16.03.2012. It did not & has not disputed change reported by Petitioner on 13.03.2012. Petitioner objected to alleged change in loyalty by Respondents No. 5 & 6 i.e. to change sought by Respondent No. 4 - Aghadi. Hence, alleged inquiry by Respondent 3 Divisional Commissioner could have been about alleged change in loyalty and till he recorded an affirmative finding accepting it, Respondents No. 5 & 6 should have treated as members supporting Petitioner. The Respondents No. 5 & 6 have never affirmed that they did not attend meeting of Petitioner Samiti held on 03.03.2012 or then information supplied by the petitioner or by themselves to Divisional Commissioner is false. They have not disputed before this Court ::: Downloaded on - 09/06/2013 18:35:16 ::: wp1426.12 24 or then in the meeting dated 20.03.2012, their signatures evidencing this or then the declaration made by them in from III of Disqualification Rules. Adverse inference needs to be drawn against them for their calculated silence. Support to Respondent No. 4 expressed by them in meeting dated 20.03.2012 does not derogate from the Petitioner's claim which is much prior and first in point of time. It is made clear impact of Section 3(2) of the Disqualification Act is being looked into little later by us. We have only evaluated stand of Respondents No. 1 to 4 that case of Respondents No. 5 & 6 is being examined by Respondent No. 3 Divisional Commissioner. It can not be accepted that due to inability or failure or omission on part of Respondent No. 3 to make entries in concerned register, Petitioner Samiti or Respondent No. 4 - Aghadi were not in existence on date of first meeting i.e. on 9.03.2012. Judgment of Hon'ble Apex Court In Sadashiv Patil vs. Vithal Teke (Supra) does not lay down law on the point of absence of registration. In facts before it, Hon'ble Apex Court while appreciating argument that rules & regulations ::: Downloaded on - 09/06/2013 18:35:16 ::: wp1426.12 25 were not supplied to Collector by aghadi while furnishing information under Rule 3, concludes that registration must in any case, be complete in the light of gazette notification & entries in register. Gazette notification is under Rule 4 while entries are made in register under Rule 5(1). Both these stages are separate. Opportunity to raise objection & of hearing is after gazette notification. If, while deciding such objection, Commissioner finds it necessary to drop certain names, he does so as he is satisfied about the incorrectness of the information supplied initially. Entries in Register under Rule 5 have to be as per gazette and decision on objections. Parent Act i.e. Disqualification Act does not expressly provide for such registration. In fact, registration is of information supplied by group leader about event of formation of aghadi or front which already has taken place. Aghadi or front or Samiti is therefore not coming into existence from date of such registration. We therefore find no substance in contention that Respondent 5 & 6 had not accepted membership of Petitioner Samiti till ::: Downloaded on - 09/06/2013 18:35:16 ::: wp1426.12 26 16.03.2012 or then, they were/ are not prohibited from & are free to change loyalties till actual entries are made in register as per Rule 4 & 5 of Disqualification Rules. Else, after each gazette publication, there will be objections informing changes and postponing actual registration of front or aghadi. It will be giving a tool to subvert the legislative effort to introduce a discipline in the democratic process. Such an approach will militate with very object behind enacting Disqualification Act and may render it nugatory.
24. Before proceeding further, it is important to note that the provisions of Disqualification Act as such do not contain any requirement of registration of Aghadi or Front. The said concept appears to have been evolved because of language of Rule 5 of Disqualification Rules, 1987. Section 3 of Disqualification Act, particularly its sub-section (1)(a) stipulates that a Councillor or Member belonging to political party or Aghadi or Front is disqualified if he voluntarily gives up his membership thereof.
::: Downloaded on - 09/06/2013 18:35:16 ::: wp1426.12 27This is subject to provisions of Section 5. Section 5 contemplates disqualification on the ground of defection whether such political party or Aghadi or Front merges with another political party Aghadi or Front. We are not concerned with that situation here.
Here Section 3(2) of the Disqualification Act is important & it reads as under :
"An elected councillor, or as the case may be, member who has been elected as such otherwise than as a candidate set up by any political party or aghadi or front shall be disqualified for being a councillor, or as the case may be, a member if he joins any political party or aghadi or front after such election."
25. Independent councilors have to continue as independents & they can not join a political party in view of S. 3(2) of the Disqualification Act as held by Division Benches of this Court in 2003 (2) Mh.L.J. 902 (para 15)-Abdul Rashid Abdul Sattar & anr. Vs. Vikas Ratanlal Jain & ors. & 1997 2 Mh.L.J. 759=1997(4) LJ 560 (para 14 & 15)- Pandurang Dagadu ::: Downloaded on - 09/06/2013 18:35:16 ::: wp1426.12 28 Parte Vs. Ramchandra Baburao Hirve & ors. Under the Maharashtra Local Authority Members Disqualification Act, 1987,prior to the election forming of a party, aghadi or front is permissible, however, after the elections the same is not permissible and more so for the candidates elected as an independent candidates. In 1998 (2) Mh.L.J. 532 - Dattatraya Maruti Bawalekar and others Vs. Pandurang Dagadu Parte and Ors., the Hon'ble Apex Court has considered the facts and law in case of Mahabaleshwar Municipal Council, wherein 17 Councillors were elected to represent various wards in the Council and each of them had contested the election as an independent candidate. Nine of them formed an Aghadi which came to be registered under the Disqualification Rules, 1987. In the meeting held on 31.12.1996, one of the Councillors representing this Aghadi was elected as the President. An application under Section 7 of the Disqualification Act, 1986, was filed for declaration that these nine Councillors forming Aghadi were disqualified. The Hon'ble Apex Court held that ::: Downloaded on - 09/06/2013 18:35:16 ::: wp1426.12 29 when they formed a new party the person elected as an independent ceased to be an independent and became a member of a political party or a front. His status as an independent came to an end on becoming a member of a front or a group. These Councillors who could act independently prior to the election or immediately on the election subjected themselves to discipline of the aghadi on becoming members thereof. The legislation imposes a condition that a person elected as an independent has to continue as such without compromising his independence.
The Division Bench of this Court had in same matter earlier held that Sub Section (2) of Section 3 of the Disqualification Act seeks to place an independent candidate in the same position as candidates belonging to a political party, Aghadi or front. Just as a candidate who ceases to be a member of his original political party, incurs a disqualification for being a councillor, similarly, an independent candidate, who has been elected as such, incurs a similar disqualification, if he ceases to be an independent councillor and joins a political party or Aghadi or front. The Hon. ::: Downloaded on - 09/06/2013 18:35:16 ::: wp1426.12 30 Apex Court in the case of G.Viswanathan v. Speaker, T.N. Legislative Assembly reported in (1996) 2 SCC 353 has held that in view of the Explanation to para 2(1) of the Tenth Schedule even if a member is thrown out or expelled from the party, for the purposes of the Tenth Schedule he will not cease to be a member of the political party that had set him up as a candidate for the election. He will continue to belong to that political party even if he is treated as "unattached". Thus , it is clear that the independent Councillors are expected to continue as independents till their term is over and they cannot form any party, aghadi or front after the election. Otherwise he/she incurs disqualification.
26 Therefore, Respondents No. 5 & 6 could not have joined petitioner on 03.03.2012 or then shifted to Respondent No. 4 on 16.03.2012. They have to continue as independents only. They could have filed affidavits in this Court justifying their support to Respondent No. 4 on 20.03.2012 & relied upon second proviso to Section 31-A(2) of Corporation Act but then ::: Downloaded on - 09/06/2013 18:35:16 ::: wp1426.12 31 that is not their plea or effort at all. On the contrary they orally accept to have joined a political party i.e. Respondent No. 4 on 16.03.2012. Thus they have compromised their independent status and breached Section 3(2) of the Disqualification Act.
Whether this status was also breached by them earlier i.e. on 03.03.2012 is not therefore, very relevant. On 20.03.2012, they were not entitled to participate as independents as they already had given up that status either on 03.03.2012 or 16.03.2012. If their act of joining Respondent No. 4 - aghadi - a political party is to be held valid, then facts here show that before joining Respondent No. 4, they joined Petitioner Samiti. They have not disputed their participation in meeting 03.03.2012 held by Petitioner to form Samiti or their signatures on from III sent to Respondent No. 3 Commissioner. Petitioner forwarded their names as members of the Samiti in Form I as per Rule 3(1)(a) of Disqualification Rules on 03.03.2012. Respondent No. 4 moved that application on 16.03.2012 and has mentioned that on 09.03.2012, it had submitted proposal to register Aghadi with 33 ::: Downloaded on - 09/06/2013 18:35:16 ::: wp1426.12 32 members but thereafter it received support of 2 more councillors i.e. present Respondents No. 5 & 6, and hence, its strength increased to 35. They have mentioned that this aghadi of 35 councilors would participate in all affairs of Corporation including various elections/decisions & day to day business. Thus formation of Petitioner Samiti or Respondent No. 4 - Aghadi is not only for the purposes of second proviso to Section 31-A(2) of Corporation Act. Respondents No. 5 & 6 joined Petitioner prior to first meeting held on 09.03.2012. Hence, they could not have claimed privilege as independent councilors thereafter and on 20.03.2012, could not have expressed solidarity with Respondent No. 4. Moreover, second proviso to S.31A(2) comes into play only after "registration" and none of the Respondents have pointed out any such registration of Respondent No. 4 Aghadi for said purposes. They have accepted the stand of Respondent No. 3 that inquiry in relation to status of Respondents No. 5 & 6 is still pending.
::: Downloaded on - 09/06/2013 18:35:16 ::: wp1426.12 3327. It is also essential to look into various judgments on which the learned Senior Advocate for the petitioner or learned Senior Advocate for respondent No. 2 - Mayor have placed reliance. In Vasant vs. Municipal Corporation of City of Nashik, (supra), the mechanism of finding out the exact strength or proportion of representation available to the parties in Standing Committee has been explained. The Full Bench judgment Jayram vs. Secretary, U.D.D. Mumbai, (supra) reiterates that position. However, representation given to respective parties is not in dispute before us & controversy has arisen because of application of wrong equation. The effort is to demonstrate error in calculating correct strength of the respective political parties i.e. the petitioner - Samiti and Respondent No. 4 -
Aghadi. The provisions of Section 31A(2) which provided for an exception and state that provisions of Disqualification Act and Rules are not applicable, are looked into in para 12 by Full Bench of this Court. However, recent judgment of the Hon'ble Apex Court in the case of Jeevan Chandrabhan Idnani vs. Divisional ::: Downloaded on - 09/06/2013 18:35:16 ::: wp1426.12 34 Commissioner, Konkan Bhavan, (supra) also considers the very same provision and hence we do not find it necessary to refer to Full Bench judgment. The Hon'ble Apex Court has found that the political parties or Aghadi or Front are formed by various possible combinations of Councillors belonging to two or more registered parties or recognized parties or independent Councillors. Aghadi or Front as defined under Disqualification Act, can clearly only be the combination of group of persons forming themselves into a party prior to elections for setting up candidate at an election to local authority. It is in this background that in para 27, the said second proviso to Section 31A(2) of Corporation Act, has been interpreted. Relevant observations are :--
"26. The second proviso to sub-section (2) of Section 31-A enables the formation of an aghadi or front within a period of one month from the date of notification of the election results. Such an aghadi or front can be formed by various possible combinations of Councillors belonging to either two or more registered parties or recognised parties or independent ::: Downloaded on - 09/06/2013 18:35:16 ::: wp1426.12 35 Councillors. The proviso categorically stipulates that such a formation of an "aghadi" or "front" is possible notwithstanding anything contained in the Disqualification Act. Because an "aghadi" or "front", as defined under the Disqualification Act, clearly, can only be the combination of a group of persons forming themselves into a party prior to the election for setting up candidates at an election to a local authority but not a combination of political parties or political parties and individuals.
27. Therefore, the second proviso to Section 31-A(2) of the Municipal Corporations Act which is a later expression of the will of the sovereign, in contrast to the stipulation as contained under Sections 2(a) and 3(2) of the Disqualification Act, would enable the formation of post-electoral aghadis or fronts. However, such a formation is only meant for a limited purpose of enabling such aghadis to secure better representation in the various categories of the Committees specified under Section 31-A. The component parties or individual independent Councillors, as the case may be, in the case of a given front/aghadi do not lose their political identity and merge into the aghadi/front or bring into existence a ::: Downloaded on - 09/06/2013 18:35:16 ::: wp1426.12 36 new political party. There is no merger such as the one contemplated under Section 5 of the Disqualification Act. It is further apparent from the language of the second proviso that on the formation of such an aghadi or front, the same is required to be registered.
The procedure for such registration is contained in the Maharashtra Local Authority Members' Disqualification Rules, 1987.
28. Once such an aghadi is registered by a legal fiction created under the proviso, such an aghadi is treated as if it were a pre-poll aghadi or front. The proviso further declares that once such a registration is made, the provisions of the Disqualification Act apply to the members of such post-poll aghadi. We do not propose to examine the legal consequences of such a declaration as it appears from the record that a complaint has already been lodged against Respondents 6 to 13 herein under the provisions of the Disqualification Act. The limited question before us is whether the first respondent was legally right in registering an aghadi or front formed after the lapse of one month from the date of the notification of the election results."
We find that said proviso does not contemplate a split ::: Downloaded on - 09/06/2013 18:35:16 ::: wp1426.12 37 in agahdi or front already formed and it only enables merger of politically independent entities for securing desired representation in Standing Committee. Hence, even otherwise in present facts immunity under second proviso to Section 31-A(2) of Corporation Act is/was not available to Respondents No. 5 & 6 or to Respondent No. 4 on 20.03.2012 . Not only this but due to Section 3(2) of the Disqualification Act, they may have incurred disqualification & might not be councilors of Respondent No. 1 Municipal Corporation after 03.03.2012 or 16.03.2012 due to Section 3(2) of the Disqualification Act. Whether they have incurred such disqualification or not, can be & needs to be inquired into by Respondent No. 3 - Divisional Commissioner as part of pending inquiry before him.
28. Objection of Senior Advocate on absence of necessary prayer clauses in Writ Petition now needs brief consideration.
Prayer "(a)" in writ petition is to quash and set aside the resolution of General Body dated 20.03.2012 and prayer "(b)" is ::: Downloaded on - 09/06/2013 18:35:16 ::: wp1426.12 38 to increase representation of Petitioner to "6" from 5. Last prayer clause "(e)" is residuary one i.e. to grant any other relief to which Petitioner may be found entitled to. Prayer clauses "(c &
d)" are interim prayers to stay election of Chairman of Standing Committee and operation effect of impugned resolution dated 20.03.2012. Though there is no express prayer to bring down the representation of Respondent No. 4 in Standing Committee to 7 from existing 8, as number of total members in Standing Committee is statutorily fixed to 16, the grant of increased reduction to Petitioner automatically results in consequential loss to Respondent No. 4. In facts as pleaded and representation as worked out, there is no difficulty in holding that Petitioner is seeking one more representative on Standing Committee and reduction of one for Respondent No. 4. Other groups to whom representation is allowed are not at all affected because of this dispute inter-se between Petitioner & Respondent No. 4. Hence, technical objection raised in this connection by Shri Manohar, learned Senior Advocate is liable to be rejected.
::: Downloaded on - 09/06/2013 18:35:16 ::: wp1426.12 3929. Shri Lohiya has urged non-joinder of the necessary parties. The representatives of Respondent No. 4 in Standing Committee have to be in prescribed proportion and their selection is an internal matter for it. If Respondent 4 is entitled to only 7 representatives, it can not select its 8 members for nomination. Who should be those 7 nominees is again for it to determine. Here, this Court is not concerned with identity of these 7 or 8 representatives but with only determination of numerical strength of respective representatives on Standing Committee. An individual member of either Petitioner or Respondent 4 has no role to play at this stage and his collective interest is being taken care of by his political party. It is for Respondent No. 4 to find out its member not entitled to birth on Standing Committee. Objection that necessary parties are not before the Court is misconceived as Respondent No. 4 is protecting the interest of all its such representatives.
30. This discussion leads to conclusion that Respondent ::: Downloaded on - 09/06/2013 18:35:16 ::: wp1426.12 40 Nos. 5 & 6 could not have been treated as members either of Respondent No. 4 or then of the petitioner. The proportionate representation of the Petitioner & Respondent No. 4 on Standing Committee needed to be worked out by ignoring them. The Petitioner therefore, is rightly given 5 members. But then there has to be proportionate reduction in representation allotted to Respondent 4. Strength of Respondent No. 4 in general body of 73 is 33. It therefore gets 7.23 seats in Standing Committee i.e. 7 seats. One seat remains vacant and decision about it can not be taken as Respondent No. 3 - Divisional Commissioner has still not completed his exercise of verification. First proviso to Section 31-A(2) does not prohibit Corporation from filling in such vacancy by nominating on the Committee any member not belonging to any such party or group. If no such member is available, Respondent Nos. 1 to 4 as also Petitioner have to start working with Standing Committee of 15 members only & continue till the Respondent No. 3 decides on the validity of change or then status of Respondents No. 5 & 6. It is settled ::: Downloaded on - 09/06/2013 18:35:16 ::: wp1426.12 41 position that law does not expect compliance with the impossibilities. Holding of a General Body Meeting for this limited purpose is essential. If Respondent 3 finds Respondents No. 5 & 6 not disqualified, Corporation can thereafter, proceed to fill in the sixteenth vacancy.
31. Accordingly, Respondent No. 4 - Aghadi as also Respondents No. 1 & 2 are directed to bring down representation of Respondent No. 4 on Standing Committee from 8 to 7.
Proceedings and meeting conducted on 20.03.2012 are quashed & set aside to that extent. Respondents No. 1,2 & 4 to hold a general body meeting to bring down the strength of representatives of Respondent Nos. 4 from 8 to 7. Respondent 1 Corporation is free to fill in resulting vacancy by nominating on the Standing Committee a Councillor as per first proviso to Section 31-A(2) of the Corporation Act in this meeting. Said general body meeting be held within period of three weeks from today. If 16th seat in Standing Committee can not be filled in, the ::: Downloaded on - 09/06/2013 18:35:16 ::: wp1426.12 42 Respondents No. 1 to 4 shall function with Standing Committee of 15 members only. Petition is thus partly allowed. Rule is made absolute in above terms. However, there shall be no order as to costs.
JUDGE JUDGE At this stage, Shri Madkholkar, learned counsel prays for stay of the judgment. Mrs. Raskar, learned counsel for the petitioner is opposing the prayer. Shri Madkholkar, learned counsel appears for Respondent No. 1 - Municipal Corporation and it is at the instance of the Municipal Corporation that the matter has been heard expeditiously, hence, we reject the request.
JUDGE JUDGE
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*GS/dragon.
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