Bombay High Court
Gajanan Bhaurao Waghmare And Madhukar ... vs State Of Maharashtra Through The ... on 2 April, 2008
Author: R.C. Chavan
Bench: K.J. Rohee, R.C. Chavan
JUDGMENT R.C. Chavan, J.
1. Rule in W.P. No. 234/2007. Returnable forthwith. Heard finally at this stage with the group of connected petitions.
2. By these petitions, the petitioners question the validity of amended Rules 3 and 5 of the Maharashtra Municipal Council and Nagar Panchayats (Qualifications and Appointments of Nominated Councilors) Rules,2006 (hereinafter referred to as the Rules.) which was notified on 20.12.2006.
3. Section 9(1)(b) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Township Act,1965 (hereinafter referred to as the Act.) providing for nomination of councillors by Municipal Council reads as under:
9.(1) Every Council shall consist of
(a) ...
(b) such number of Councillors, not exceeding ten percent of the total number of elected Councillors or five, whichever is less, having special knowledge or experience in municipal administration, to be nominated by the Council in such manner as may be prescribed.
4. Rules in force prior to impugned notification dated 20.10.2006 provided for actual election of such nominated Councillors by all the Municipal Councillors. The impugned rules read as under:
3. Determination of number of nominated Councillors-Subject 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 its first meeting after election of the President and Vice-President:
Provided that, while determining the number of nominated Councillors, a fraction of less than one-half be ignored and a fraction of one-half or more shall be reckoned as one.
5. Nomination of Councillors-In nominating the Councillors the Collector shall take into account the relative strength of recognised parties or registered parties or groups, and nominate the members, as nearly as may be, in proportion to the strength of such parties or groups in the Council, after consulting leader of each of such party or group: Provided that, nothing contained in this rule shall be construed as preventing the Collector from nominating any member not belong to any such party or group.
5. According to the petitioners the rules travel beyond the mandate of the section and is thus ultra vires the section. It is further contended that the impugned rule is beyond the power to make rules under Section 321 of the Act since it empowers the State to frame rules to achieve the purpose of the Act. These Rules 3 and 5 are, therefore, liable to be quashed and set aside.
6. According to the respondent No. 1 State, since Section 9(1)(b) prescribes that councillors shall be nominated in the prescribed manner, the State can prescribe the manner of nomination, which it has done by making the impugned rules. The rules are within the rule making power of the State and it is open to the State to prescribe the manner in which nomination shall be made. Therefore, the challenge to the rule must fail.
7. We have heard S/Shri A.S. Chandurkar, F.T. Mirza, A.A. Naik, C.S. Kaptan and Shri S.V. Bhutada, learned advocates for petitioners; Smt. B.H. Dangre, learned Additional Government Pleader and Mr. D.P. Thakre, learned AGP for respondents/ State and S/Shri A. Dhore, S.E. Raghorte, M.I. Dhatrak and Smt. A.P. Shinde learned Advocates for other respondents.
8. Though the learned Additional Government Pleader sought to justify Rules 3 and 5 as complying with the requirement of the Act, we do not see as to how the Collector could be vested with powers of the Council to nominate councillors under Section 9(1)(b) of the Act. Section 2(6) which defines the Council. does not include Collector. Manner of making nomination can undoubtedly be prescribed by the State Government, but in the guise of prescribing procedure, State Government cannot divest the Council of its power to nominate and clothe the Collector with such a power.
9. In fact in respect of nominations to Municipal Corporations which are governed by similar provision in the relevant enactments, the State Government had introduced similar rules divesting Corporations, and clothing Mayors with the power to nominate. After the rules were challenged, the State Government amended the rules further providing the recommendations of Commissioner for nominations being considered by the Corporation. We do not see as to why similar amendment was not carried out in the impugned rules applicable to Municipal Councils. The impugned Rule 3 is clearly contrary to the mandate of Section 9(1)(b). Rule 5 travels far beyond the power to make rules prescribing the manner of making nominations. These Rules 3 & 5 have, therefore, to be quashed.
10. The learned Additional Government Pleader submitted that nominations have been made by Collectors in pursuance of the impugned rule and it may be necessary to join such nominated councillors before the rules could be quashed. Some such councillors have already been joined in some of the petitions and are represented. In our view though such Councillors may be unseated as a sequel of quashing the rules, there can be no question of their being entitled to be heard. It is not the case that the procedure followed in making their nominations is assailed as offending the rules. The rules themselves are challenged. When the rules are quashed, all actions taken in accordance with such rules would also suffer the same fate.
11. Advocate Shri A.A. Naik, for petitioner in W.P. No. 234/2007 raised the question of formation of a group, which, according to him, was entitled to be consulted before making nominations. He submitted that the Collector had refused to recognize the group though it was formed within a month of coming into force of the relevant provision, but beyond one month of notification of results. Since the rules prescribing manner in which nomination could be made are being quashed, and since it cannot be speculated as to whether a provision to consult groups in the Council would be made in such rule as may be eventually framed, the question need not be considered now. We would, therefore, leave the question untouched.
12. Advocate Shri C.S. Kaptan for petitioners in W.P. No. 395/2007 submitted that the petitioners had also challenged the nominations on the ground that respondent No. 6 therein who was nominated as a Councillor was not at all a voter of the Municipal Council and, therefore, could not have been nominated. He assailed the rules also because they fail to specify that only voters of the concerned Municipal Council could be nominated. In the face of provisions of Section 15 of the Act which reads as under, there could be no question of a person who is not a voter becoming a Councillor either upon election or nomination. Section 15 reads as under:
15. Qualification for becoming Councillor: Every person (who is not less than twenty-one years of age on the laste date fixed for making nominations for every general election or by-ection and) whose name is included in the list of voters maintained under Section 11 and who is not disqualified for being elected a Councillor under this Act or any other law for the time being in force, shall be qualified, and every person (who is not of twenty-one years of age as abovesaid and) whose name is not included in the list or whose is so disqualified for being a Councillor, shall not be qualified, to be elected as a Councillor at any election.) (2) Subject to the provisions of Sub-section (1), the list of voters maintained under Section 11 shall be conclusive evidence for the purpose of determining under this section whether a person is qualified or is not qualified to be elected, as the case may be, at any election.
13. In our view, it was not necessary to incorporate the provisions of Section 15 of the Act in the impugned rule. Nominations under the impugned rule (or the rule it replaced or the rule that may replace it) would always be subject to provisions of Section 15 of the Act. If any nomination has been made violating Section 15 of the Act, it must go. The learned Counsel informed us that such a challenge is already raised in proceedings before the District Judge presumably under Section 21 of the Act. In view of this nothing further is required to be said on this aspect of the matter raised by Advocate Shri Kaptan.
14. In view of the foregoing reasons, we quash and set aside Rules 3 & 5 notified on 20.12.2006 and all actions taken in accordance with these rules. Rule is made absolute in the above terms with no order as to cost.