Bombay High Court
Shri. Jayram Tolaji Shinde vs The Secretary on 1 April, 2010
Author: Ferdino I. Rebello
Bench: F.I. Rebello, D.G. Karnik, J.H. Bhatia
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IN THE HIGH COURT OF JUDICUATURE AT MUMBAI
CIVIL APPELLATE SIDE
WRIT PETITION NO. 5287 OF 2008
1. Shri. Jayram Tolaji Shinde,
Age 54 yersk, Occ. Agriculture,
R/o. Behind Gramin Police Headquarter,
Adgaon, Tal. & Dist. Nashik.
2. Sau. Kavita B. Kardak,
Age 37 years, Occupation : Nil,
R/o. Budhankur, Vaishali Nagar,
Peth Road, Nashik ... Petitioners
Versus
1. The Secretary,
Urban Development Department,
Maharashtra State, Mantralaya,
Mumbai.
2. The Commissioner,
Nashik Municipal Corporation,
Rajiv Gandhi Bhavan, Nashik.
3. The State of Maharashtra,
4. Sanjay Uttamrao Chavan,
Aged about 46 years, Occ. Agriculturist,
and Business, R/o. At 4119, Patil Galli,
Budhwar Peth, Nashik 1 . ... Respondents
ALONGWITH
WRIT PETITION NO. 5857 OF 2008
Shri. Jayram Tolaji Shinde,
Age 54 years, Occ. Agriculture,
R/o. Behind Gramin Police Headquarter,
Adgaon, Tal. & Dist. Nashik. ... Petitioners
Versus
1. The Secretary,
Urban Development Department,
Maharashtra State, Mantralaya,
Mumbai.
2. The Commissioner,
Nashik Municipal Corporation,
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Rajiv Gandhi Bhavan, Nashik.
3. The State of Maharashtra,
4. Sanjay Uttamrao Chavan,
Aged about 46 years, Occ. Agriculturist,
and Business, R/o. At 4119, Patil Galli,
Budhwar Peth, Nashik 1 . ... Respondents
ALONGWITH
WRIT PETITION NO. 7935 OF 2008
Ateeq Ahmed Kamal Ahmed ... Petitioner
Versus
Malegaon Municipal Corporation and Ors. ... Respondents
ALONGWITH
WRIT PETITON NO. 8094 OF 2008
Abdul Malik Mohammed Yunus
ig ... Petitioner
Versus
State of Maharashtra and Ors. ... Respondents
ALONGWITH
WRIT PETITON NO. 2675 OF 2009
Nandkumar Digambar Dhule and Ors. ... Petitioners
Versus
Kalyan Dombivali Municipal Corporation and Ors ... Respondents
ALONGWITH
WRIT PETITION NO. 4964 OF 2009
Sayyad Mushir Muniroddin ... Petitioner
Versus
State of Maharashtra and Ors. .. Respondents
Mr. N.R. Bubna with Manisha Salekar for Petitioner (W.P. No. 7935 of 2008).
Mr. M.M. Vashi i/by Mr. M.P. Vashi for R. No. 6 (W.P. No. 7935 of 2008).
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Mr. Rahul Kate for R. Nos. 1, 2 and 4 (W.P. No. 7935 of 2008) .
Mr. R.P. Behere, Addl. G.P. For R. No. 5 (W.P. No. 7935 of 2008).
Mr. N.R. Bubna with Manisha Salekar for Petitioner (W.P. No. 7935 of 2008).
Mr. P.K. Dhakephalkar, Sr. Counsel along with Mr.M.S. Kunthekar for R. Nos. 6 and
7 (W.P. No. 7935 of 2008).
Mr. A.S. Rao for R. Nos. 1 and 2 (W.P. No. 7935 of 2008).
Mr. R.P. Behere, Addl. G.P. For R. No. 5 (W.P. No. 7935 of 2008).
Mr. A.V. Anturkar i/by Mr. S.S. Deshmukh for Petitioner (W.P. No. 4964 of 2009).
Mr. M.L. Patil for R. Nos. 3 to 5 (W.P. No. 4964 of 2009).
Mr. T.S. Ingale for R. Nos. 6 and 7 (W.P. No. 4964 of 2009).
Mr. R.P. Behere, Addl. G.P. For R. Nos. 1 and 2 (W.P. No. 4964 of 2009).
Smt. Deepa S. Matwankar for Petitioner (W.P. No. 4964 of 2009).
Mr. J.N. Pawar for R. No. 2 (W.P. No. 4964 of 2009).
Mr. R.P. Behere, Addl. G.P. for R. Nos. 1 and 3 (W.P. No. 4964 of 2009).
Mr. R. M. Pethe i/by Mr. R.S. Khadapkar for R. No. 2 (W.P. No. 4964 of 2009).
Mr. V.A. Gangal along with Ashok Gade and Vindu Pandey for R. No. 4 .(W.P. No.
4964 of 2009)
Mrs. Deepa S. Matwankar for Petitioner (W.P. No. 5857 of 2008).
Mr.J.N. Pawar for R. No. 3(W.P. No. 5857 of 2008) .
Mr. R.P. Behere, Addl. G.P. For R. Nos. 1 to 3 (W.P. No. 5857 of 2008).
Mr. R. M. Pethe i/by Mr. R.S. Khadapkar for R. No. 2 .(W.P. No. 5857 of 2008)
Mr. V.A. Gangal along with Mr. Ashok Gade and Mr. Vindu Pande for R. No. 4(W.P.
No. 5857 of 2008) .
Mr. M.P. Vashi for Petitioner (W.P. No. 8094 of 2008).
Mr. R.P. Behere, Addl. G.P. For R. No. 1 (W.P. No. 8094 of 2008).
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CORAM : F.I. REBELLO ,
D.G. KARNIK &
J.H. BHATIA, JJJ.
DATED : APRIL 01, 2010
ORAL JUDGMENT (Per FERDINO I. REBELLO,J.):
A Division Bench of this court, by its order in the case of Vasant Gite and Another Versus Municipal Corporation of City of Nashik and others in Writ Petition No. 2564 of 2007 along with several other petitions decided on April 30, 2007 had occasion to consider the provisions of section 31A of the Maharashtra Municipal Corporation Amendment Ordinance 2007 which subsequent thereto was substituted by the Maharashtra Municipal Corporation (Amendment) Act, 2007 which hereinafter shall be referred to as Amendment Act. The learned Division Bench there had first considered the issue as to how to arrive at the relative quotient for being represented for the purpose of section 31A(2). Taking an illustration, it was noted that if the strength of general assembly is 108 it will have to be divided by 16 which is the strength of the standing committee. This will work out to a quotient of 6.75. Then take the quotient of 6.75 and divide by the number of elected councilors to get the relative number of seats for representation on the standing committee. If it be a fraction, then the fraction of 0.50 or more be considered as one. The fraction of 0.49 and less was to be ignored. The court then proceeded to answer the second question of the proper construction of sub section (2) of Section and the proviso. The Division Bench noted that firstly members have to be nominated from amongst the registered parties or Aghadi or front which have the necessary quotient based on the relative strength of their membership of the 4 ::: Downloaded on - 09/06/2013 15:47:44 ::: general assembly. It was then observed that while so nominating it will be open by virtue of the proviso for a political party as long as the provisions of the Maharashtra Local Authorities Members Disqualification Act, 1976 are not attracted to nominate an elected councilor not belonging to the recognized or registered or group to the standing committee as set out in sub section (2). The court then proceeded to hold that after this exercise has been completed, if there be any balance seats those would be filled in by nomination by the Corporation from the parties or groups or independents not already represented. SLPs being No(s) 16368-1639/2007 and SLP No. 15661 of 2007 had been preferred by the Petitioners in those petitions which were dismissed as withdrawn on 10.07.2009/
2. Another Division Bench in Writ Petition No. 5857 of 2008 along with W.P. No. 5287 of 2008, on the issue as to whether the party can nominate a person not its member, was of the view that the view taken in Vasant Gite and another (supra) was not correct and accordingly formulated the following question to be considered by the larger Bench; :
"The question which will have to be considered by the Full Bench is :
(1) Whether, in the light of Section 31A(2) of the Bombay Provincial Municipal Corporations Act, a party which is entitled to a quota can nominate to the committee member who does not belong to it?"
The learned Division Bench in making this reference was pleased to observe that if such a mode is accepted, it would defeat the provisions of the Maharashtra 5 ::: Downloaded on - 09/06/2013 15:47:44 ::: Local Authority Members' Disqualification Rules, 1987 and if a party is in need of more members it can always offer membership of the committee to the members who are not part of such a recognized party, which the Bench felt would not be appropriate.
3. The issue of representation of the standing committee, it appears came up for consideration once again in Writ Petition No. 7938 of 2008. After noting the judgment in Vasant Gite (supra) the learned Bench was pleased to formulate the following questions to be considered by the Larger Bench. We have renumbered the questions for the purpose of answering the questions in both references :
(2) Whether the procedure laid down in para 6 of the judgment in the case of Vasant Nivrutti Gite and anr. Vs. The Municipal Corporation of City of Nashik and Ors. (Writ Petition No. 2564 of 2007 decided on 30.4.2007) (supra) for determining the party-wise representation on the Standing Committee is in keeping with the scheme of sub section (2) of section 31A of the Act?
(3) Whether the words "in proportion to the strength of such parties or groups in the Corporation" contemplate inclusion of the number of the independent Councilors or Councilors/members not belonging to any recognized party or registered party or group or front/Aghadi?
(4) Whether the first proviso below sub section (2) of section 31A of the Act is only an enabling/discretionary provision and it does not create any vested right of appointment by nomination in favour of any Councilor/member not belonging to any recognized parties or registered parties or groups or 6 ::: Downloaded on - 09/06/2013 15:47:44 ::: fronts/aghadis?
(5) Whether the appointment by nomination on the Standing Committee is required to be made only from amongst the Councilors/members from/representing the recognized parties or registered parties or groups or fronts/aghadis?"
These questions as formulated along with some other petitions where the questions arise have been placed before this Bench for our consideration and disposal.
4. At the hearing of this petition, on behalf of the Petitioner in Writ Petition No 8094 of 2008 the learned counsel Mr. Vashi contended that the view taken in Vasant Gite and another where the fraction about 0.5 should be considered is one and fraction less than 0.5 should not be considered, would be contrary to the express language of section 31A(2) of the Act. It is pointed out that the expression "as nearly as may be" has received judicial recognition. Our attention was firstly invited to the judgment of the Supreme Court in Jayshekar Prasad Versus State of Bihar and Others (1993) 2 Supreme Court Cases 597, to contend that the expression "as nearly as may be" would suggest that the allotment is not exact but approximate and is meant not to be mandatory but directory. Our attention was also invited to the judgment in R.C. Poudyal Versus Union of India and Others 1994 Supp (1) Supreme Court Cases 324 to contend that the Supreme Court while referring to Clause 3 of Article 332 considering the expression "as nearly as may be", held that it will be permissible to have deviation to some extent from the requirement. In other words 7 ::: Downloaded on - 09/06/2013 15:47:44 ::: the said expression permits latitude or deviation. It was also submitted on behalf of the Petitioners by the learned counsel that this court would have to evolve a principle, that all fractions would have to be considered and the seats allotted in the descending order of fractions. This learned counsel submits would result in correct interpretation of the section 31A(2) of the Act and at the same time, satisfy the requirements of expression "as nearly as may be". It is also submitted that appointment to the standing committee has to be made only from amongst councilor/members representing recognized parties or registered parties or from the groups/fronts/Aghadies. It is submitted that in so far as proviso is concerned, it is an enabling provision and does not confer vested right for appointment by nomination in favour of the councilor not belong to any recognized, registered parties or groups or Aghadies. The learned counsel further submits that for the purpose of determining the representation based on partywise strength, only seats of recognized parties, groups, aghadies or fronts ought to be considered for proportional representation.
5. On the other hand Shri. Anturkar submitted that it will not be possible to evolve by judicial interpretation any universal formula which would take care of all permutations and combinations for the constitution of the Standing Committee and other committees as referred to in section 31A(1). The Standing Committee, consists of 16 members. Although the Standing committee has to be representative in nature, it is possible that there may be a large numbers of members belonging to parties who do not have the necessary numbers to be represented. There may be independents who have not formed into a group. Therefore, it would be impossible, to fix any formula, which would be universally applicable in all situations to come.
8 ::: Downloaded on - 09/06/2013 15:47:44 :::If therefore, the legislature, has provided a formula of making the Committee, representative in character by considering the strength of the General Body that should be followed "as nearly as may be". Even the legislature has not contemplated strict adherence to that rule but contemplates that in some circumstances, it may not be possible to insist on strict adherence to such rule. In respect of such cases, where strict adherence to rule of "as nearly as may be" is not possible/workable, it is submitted that, the legislature has, in its wisdom, given the power to the entire General Body, to nominate any member who may be, either an independent member or belonging to any other political party/Aghadi/Front, which is not already represented on the Committee. A person so elected by the entire house truly represents the General Body and that would be more democratic in nature and will be truly representative and will be in consonance with the object, which is sought to be achieved by section 31A. This interpretation would be in consonance with the purposive interpretation.
Lastly it is submitted that the interpretation, sought to be canvassed by Mr. Vashi that larger the fraction, then to nominate the member from that party, should not be preferred because that does not achieve the object and it ignores, and in fact, substitutes, the remedy, which is such circumstances, has been provided for and intended to be implemented by the legislature. It would amount substituting the statutory remedy by another remedy, which the Honourable Court thinks, to be better, than the one provided by legislature. Such course is clearly inadmissible. The learned counsel submits that the view taken in Vasant Gite's case (supra) represents the correct interpretation.
9 ::: Downloaded on - 09/06/2013 15:47:44 :::Mr. Dhakephalkar submits that there is no bar under section 31A(2) in a political party nominating a person not its member. It is therefore, submitted that the view taken in Vasant Gite's case is the correct view. Considering the first proviso to Section 31A, it is submitted that sub section (2) provides for representation based on the relative strength of the parties, the proviso permits nomination from those nor represented. If nomination is from the parties/fronts/aghadies, already represented, then the proviso would be meaningless. The learned counsel supports the view taken by Vasant Gite's case.
7. Shri. Gangal appearing for the Corporation in Writ Petition No. 5857 and 5217 submits that the powers of nominating councilors of the standing committee are given to the Corporation. The proviso to sub section (2) gives over all powers to General Body to nominate any member not representing any party or group. In nominating the councilor the Corporation shall take into account the relative strength of the recognized parties or registered parties or groups and nominate members as nearly as may be in proportion to the strength of such parties or groups. From this it is submitted, is clear that there are two different sources from which nomination is intended for the recognized/ registered party or group or aghadi:
(1) proportionate representation based on the relative strength of respective parties or groups:
(2) remaining seats to other parties which do not have necessary quotient to nominate in proportionate to their strength and (3) Independents who have not formed groups.10 ::: Downloaded on - 09/06/2013 15:47:44 :::
It is submitted that the judgment of the Division Bench in Gite's case, to that extent represents the correct position in law. It is then submitted the Division Bench judgment states that other smaller parties, which are registered, or groups which are registered and who do not have the quotient, the representation can be given from the quota of the registered parties and group only does not appear to be correct. It is submitted that where there are large number of independents or smaller parties having 2 or 5 Councilors each, but which do not have the required quotient of nominating any Councilor, can be nominated irrespective of the fact whether such Councilor belongs to a smaller party or is an independent Councilor. If this is followed, it will give complete workability to Section 31(A). Any other interpretation will lead to leaving some of the Councilors not getting an opportunity to be nominated and this cannot be the intention of the legislature. The other counsels appearing for other Municipal Corporations supported the view canvassed by Mr. Gangal.
8. With the above background, we may now propose to dispose of the controversy. For that purpose we may gainfully refer to the provisions of Section 31A of the Act which reads as under :
"31A. Appointment by nomination on Committees to be by proportional representation : (1) Notwithstanding anything contained in this Act or the rules or bylaws, made thereunder, in the case of the following Committees, except where it is provided by 11 ::: Downloaded on - 09/06/2013 15:47:44 ::: this Act, that the appointment of a Councilor to any Committee shall be by virtue of his holding any office, appointment of Councilor to these Committees, whether in regular or casual vacancies, shall be made by the Corporation by Nominating Councilors 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 Committee appointed under section 31.
(2) In nominating the Councilors to the Committee, the Corporation shall take into account the relative strength of the recognized 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 that, nothing contained in this sub section be construed as preventing the Corporation from nominating on the Committee any member not belonging to any such party or group.
Provided further that, for the purpose of deciding the relative strength of the recognized parties 12 ::: Downloaded on - 09/06/2013 15:47:44 ::: or registered parties or groups under this Act, the recognized parties or registered parties or groups, or elected Councilors not belonging to any such party or group may, notwithstanding anything contained in the Maharashtra Local Authority Members' Disqualification Act, 1986, within a period of 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 registered pre-poll aghadi or front."
9. This court in the case of Vasant Gite and Others had noted the statement appended to the Ordinance which read as under :
"3. To ensure that all the recognized parties and groups in the Corporation are adequately represented in the Committees constituted under the Corporations Acts, the Government considers it expedient to amend these Acts to provide for the nomination of members of the Committees in proportion to the strength of the political parties of groups in the Corporation. "13 ::: Downloaded on - 09/06/2013 15:47:44 :::
10. The strength of the Standing Committee as provided by Section 20 of the Act, is 16 to be nominated from amongst the councilors. The quotient considering the strength of the General Body of each corporation is bound to vary, depending on the strength of the General Body by the strength of the standing Committee, to arrive at the quotient. The other view canvassed by Mr. Vashi is to exclude the independents who do not constitute a post poll aghadi or front in terms of the proviso to the sub section. If this is followed, the quotient will change depending on how many independent councilors are elected and how many of them do not constitute a group or aghadi. The quotient will change therefore, at every election and also in the course of the term if by-elections are held and independents get elected . If Mr. Vashi's argument is to be accepted then that would amount to re-
writing the Section and the expression "in proportion to the strength of such parties or groups in the Corporation" will have to be ignored by substituting in proportion to the strength of the recognized parties or groups or fronts in the Corporation and excluding the independents who may not constitute themselves into a group or front. Courts only when the literal construction gives rise to an absurdity or defeats the intent of the legislature to give intent to the object of the Legislature may then only do some violence to the language and not otherwise. In the instant case, there is no reason to depart from the literal interpretation.
11. We shall now answer the question referred in Shri. Jayaram Shinde (supra).
The language of the sub section only indicates that in nominating councilors on the committee, the Corporation shall take into account the relative strength of the recognized parties or registered parties or groups and nominate members as nearly 14 ::: Downloaded on - 09/06/2013 15:47:44 ::: as may be in proportion to the strength of such parties or groups in the Corporation.
In other words, what is relevant is nomination of members in proportion to the strength of such parties. Sub section by itself does not provide that they must be members of the same party or group or front or aghadi. Further more, the proviso itself makes it clear that nothing in sub section (2) can be construed as preventing the Corporation from nominating on the committee any member not belonging to any such party or group. In other words, it will be clear that while nominating the members, the recognized political party or group or aghadi or front may also propose to nominate any independent or member of any political party or group as long as by such nomination such member does not incur disqualification. A party, front, group or aghadi proposing to nominate an independent or member of any other party or front necessarily must have the concurrence of such member to propose his name for nomination. In Vasant Gite's case, while dealing with this aspect, the court had noted as under :
"This no doubt would give advantage to the ruling group in the Corporation to fill in the seats from those who support them. In our opinion, this is a part of our democratic process and as such cannot be faulted with."
It is possible that in order to have a working majority a party, front or group may seek support of other groups or Aghadies or independents and in lieu of such support may agree to nominate members, belonging to such groups or aghadies, or fronts or parties or independents to various committees from their quota. A reading of the section does not abhore this interpretation. It is only to the extent that any 15 ::: Downloaded on - 09/06/2013 15:47:44 ::: such nomination may attract the provisions of the Maharashtra Local Authority Members Disqualification Act, 1986, that it will not be possible to make such nomination. Otherwise we find no embargo in the section, preventing such nomination. In the kind of fractured mandates, that is a scene today, a working majority is desirable so that the local body carries out its objectives. Courts while interpreting such provisions, must make our democratic institutions workable. The object of the interpretation in such matters should be to strengthen the democratic process, not to thwart it. This court as a protector of the rule of law and of the Constitutional principles that we are bound to protect and promote must interpret the provisions in favour of stability in our democratic institution and bodies as long as the view is possible. In the light of that, we are of the view that the view taken in Vasant Gite's case represents the correct view.
12. The next question being question Nos. 2 and 3 for our consideration is whether the procedure for determining partywise representation on the standing committee as held in Vasant Gite is in consonance with sub section 2 of section 31 of the Act and should independent members and other members not belonging to any recognized or registered party, group, front or aghadi be excluded while working out the quotient. The question has been addressed in Para 11 of this judgment.
We may consider the second proviso to sub section (2). Notwithstanding the provisions of Disqualification Act, for the purpose of representation, it is possible to form a post poll aghadi but within one month from the date of notification of the election results and such front or aghadi along with registered political party would 16 ::: Downloaded on - 09/06/2013 15:47:44 ::: be entitled to recognition. In other words even independents and others if they form a post poll aghadi or front if they have the quotient can be represented. If such independent councilors have to be counted in such cases to work out the quotient, why have they to be excluded if they do not form a front or aghadi. This by itself must negate the argument advanced by Mr. Vashi for working out the quotient. The language used is "in proportion to the strength of such parties or the groups of such parties in the Corporation". Will this exclude others not a part of such party, group, aghadi or front. Therefore what is relevant is the strength of members in the Corporation. If it be not so construed, then even in the event there may be members like independents who have not formed into a group or aghadi or fronts yet their combined strength would be excluded for the purpose of working out their representation in the Corporation. In such an event the expression the relative strength of such parties in the Corporation will become irrelevant. The second proviso merely contemplates that in working out the representation of the parties a post poll front or aghadi registered within the time frame will also be entitled to proportionate representation. If Mr. Vashi's argument is considered that it is not the relative strength of the Corporation but the strength of members of recognized or registered parties, fronts or aghadies after excluding independents or others who may not form an aghadi or group that has to be counted. Say in a Corporation having 100 members, if there be 20 independents not forming an aghadi or front, such councilors will have to be excluded and the quotient will have to be considered based on 80:16 = 5 whereas considering the view taken in Gite's case, in a house strength of 100, it would 100:16=6.25 which will be considered. The relative strength can only be in respect of the strength of the Corporation. Any other 17 ::: Downloaded on - 09/06/2013 15:47:44 ::: interpretation would cause violence to the interpretation Under Section 31A(2), nomination has to be made by the Corporation while giving representation based on relative strength. Leader of the House and Leader of the opposition and leaders of each party or group have to be consulted. At the same time by virtue of the first proviso, the Corporation can nominate any member not belonging to any such party or group. These provisions will have to be read together. The first proviso cannot affect the representation that each party or group can get based on the quotient. The proviso can only come into play, after the parties or groups are given due representation based on the strength in the corporation and considering the quotient.
12A. Though the right to be represented on the standing committee may be statutory and all members have the right to participate in the procedure for nomination, as the nomination has to be done by the Corporation can independent members or others who are not a party or aghadi or front and may together have the seats which can add to a quotient, be denied representation only because they are not registered under the second proviso. Also an independent elected in bye elections cannot join an existing front or aghadi. Will this not lead to unreasonableness or arbitrariness if the second proviso is construed to give the remaining seats also to registered or recognized parties, fronts or aghadies who may not have the necessary quotient even considering the expression "as nearly as may be". The second proviso will have to be so construed to give stability . as otherwise it will be open to form new fronts or aghadies every time a bye-election is held and results declared. What therefore, has to be taken into consideration is the strength of the Corporation in terms of the provisions of the Act. In our opinion, therefore, the 18 ::: Downloaded on - 09/06/2013 15:47:44 ::: view taken in Vasant Gite's case represents the correct view.
13. Yet another aspect which has to be considered is whether by a statutory provision an elected member can be excluded from being considered for a seat on the standing committee. The first part of section 31A(2) gives representation to a class of parties, aghadies or front who have the necessary quotient, in proportion to their relative strength in the Corporation to be represented on the standing committee. That would mean based on the seats that they have and the total number of seats in the Corporation. Do independent members who may have a different economic or social agenda or elected on specific local issues, be forced to join an aghadi or front after the elections for being considered for nomination purely as an opportunistic measure. Similarly smaller parties with a view to be represented are they to be forced to enter into an aghadi or front notwithstanding the political, social or economic philosophies which they may have from other parties. Once the seats are alloted based on the relative strength of the parties, any seats that remain vacant on account of the combined strength of independents and such other parties, aghadies or fronts who by themselves may not have the necessary quotient but together the seats they hold might add to the necessary quotient will have to be given representation. If the proviso is to be read to mean that such parties or independents can also be nominated by the Corporation, then the plea of arbitrariness or unreasonableness will also not survive. After the first exercise is done in consultation with the Leader of the house, leader of the opposition and leaders of other parties to fill in the seats by nomination based on the relative strength of the parties, the proper construction will be that the remainder of the 19 ::: Downloaded on - 09/06/2013 15:47:44 ::: seats have to be filled by the Corporation by nominating from members who belong to parties, fronts or independents not already represented. It may also be noted that after by elections, independent members or others may be elected who may not belong to the party or aghadi or front already having representation in the Corporation or already registered and not belong to any party cannot join any other front, aghadi considering the second proviso. At the highest, they may form themselves into a new aghadi or front. In our opinion, therefore, sub section (2) along with its proviso will have to be so read. If the parties or aghadies with the quotient less than 0.5 are to be given the balance seats also, that will defeat the principle of relative strength. It may also be noted that the Corporation can only nominate a member to the standing committee but the section does not contemplate forcing any party or group to nominate any independent or from party not represented from their quota on the standing committee.
14. We may consider the issue of fraction. In the State of U.P. And another Versus Pawan Kumar Tiwari and Others, (2005) 2 Supreme Court Case 10, the Supreme Court has considered the issue of rounding off. In that case, the Supreme Curt had rounded up the figure of 46.50. It was rounded from 46.50 to 47. In this context the court observed as under :
"The rule of rounding off based on logic and common sense is, if part is one half or more, its value shall be increased to one and if part is less than half then its value shall be ignored."20 ::: Downloaded on - 09/06/2013 15:47:44 :::
15. It is no doubt possible considering the arguments advanced at the bar and the judgments which uses the expression "as nearly as may be" and that rounding up of the fraction is based on logic, nonetheless from the illustrations cited at the bar that if the fraction 0.5 is considered as one, a situation may arise where representation may go beyond 16. That leads to two interpretations. One to consider 0.5 or more as one considering the expression "as nearly as may be". The other would be having a standing committee of more than 16. It will not be possible to have a construction of a provision which will result in more members of a standing committee which is statutorily fixed. The view which gives rise to one consistent interpretation will have to be preferred. Excluding the fraction say of 0.9 which could have been rounded upto 1, may also result in denying to a party or group or aghadi representation. Legislature having noted that it may not be possible to fill all the seats in proportion to the strength of the parties has used the expression "relative strength" and "necessary as may be".
In that context in our opinion, the judgment in Vasant Gite, will have to be explained. While considering the decimal of 0.5 or more by rounding as one, the representation will have to be worked out in the following manner. Anything less than 0.5 to be excluded. Between less than 1 and 0.5 to first allow representation in the descending order. Say if there are only 2 vacancies and 4 parties or groups or aghadies, having 0.95, 0.80, 0.60, 0.5, then to first give representation to those having 0.90 and 0.80 and not 0.60 and 0.5. Similarly in a situation, if there be 4 vacancies and only 2 parties say having a fraction between 0.99 and 0.5, then after giving representation to these parties or groups, to fill the remaining two vacancies 21 ::: Downloaded on - 09/06/2013 15:47:44 ::: by nomination by the Corporation as from other parties, fronts or aghadies including independents not already represented. The representation therefore would be as nearly as may be based on the seats divided by the quotient and ignoring the fractions as now explained. The view which was sought to be canvassed by Mr. Vashi in our opinion, cannot be accepted on the express language of the sub section to consider the fractions in descending order even to those having below 0.5. In such situation, though a party or group or Aghadi or front may not have the necessary quotient, because it still may have say one member which may work out to 0.1 will still get representation. This cannot be read into the expression "as nearly as may be". In our opinion, sub section (2) would have to be read along with the proviso. The proviso takes into consideration the situations where there still may be vacancies after nomination based on the relative strength of the parties. In such event the Corporation without consulting the leaders of the parties or groups would nominate from such other parties not already represented and from the independents not represented to the vacancies in the Standing Committee.
In the light of our discussion, Question No. 2 is answered in the affirmative.
In so far as Question No. 3 is concerned as held the strength of independent councilors has to be included while working out the quotient for working out the quota based on relative strength of such parties or groups. Questions answered accordingly.
16. We now proceed to answer question Nos. 4 and 5. A proviso, as is well known may serve different purposes;
22 ::: Downloaded on - 09/06/2013 15:47:44 :::(i) qualifying or excepting certain provisions from the main enactment;
(ii) it may entirely change the very concept or the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable;
(iii) it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself, and
(iv) it may be used merely to act as an optional addendum to the enactment with the sole object of explaining the real intendment of the statutory provision.
(See S. Sundaram Pillai Vs. V.R. Pattabiraman, (1985) 1 SCC 591).
The first proviso as earlier construed confers power on the Corporation to nominate members from parties or groups not already represented which will also include independents. If this is considered, then after the parties, groups, fronts or aghadies get their representation based on the quotient the members belonging to recognized party or group or Aghadi or front or independents not already represented and irrespective of the fact whether they have the necessary quotient, it is open to the Corporation to nominate from such members. In this exercise there is no consultation. Such a situation will only arise in the event of a vacancy or vacancies after the registered parties, fronts or groups nominate their members. The question then is how are such vacant seats to be filled in. As rightly pointed out by Mr. Dhakephalkar, if after getting representation based on their relative strength in the Corporation, if the balance seats are also to be filled in from the same parties 23 ::: Downloaded on - 09/06/2013 15:47:44 ::: already represented, that would defeat the very object of the sub section itself. In this manner a party or group or aghadi can corner the balance seats even if they are already represented based on their relative strength in the Corporation to the exclusion of smaller groups or independents. In the interpretation now given though they cannot nominate their own member, they however, will still have a say in nomination but that would be by nominating from independents or parties or aghadi not already represented. To that extent, in our opinion, the view taken in Gite's case namely that the balance seats can be filled in by nomination from amongst the members, groups or fronts or independents not already represented will have to be accepted. The expression "such" in the first proviso attains importance. If this was not the intention of the legislature then the expression "such" would not have been used. In the absence of the expression "such", the seats could have been filled in from any of the parties or groups, fronts or aghadies including those already represented. By use of the expression "such" which is also there in sub section (2) the legislative intent seems to mean that once parties are represented based on their relative strength then the remainder of the vacant seats be filled from amongst those who are not represented. The vacancies in such situation do arise, because though all such groups or independents together. may have the necessary quotient, yet individually they can not get representation because the independents, party, group, front or aghadi do not by themselves have the necessary quotient. The vacancy arises because of such a situation. In our opinion, in that context we are in agreement with the view taken in Gite's case. Once there is power in the House to nominate any Councilor, it is because, the Legislature has contemplated such a situation. The proviso in the instant case, considering the law declared in S. 24 ::: Downloaded on - 09/06/2013 15:47:44 ::: Sunderam Pillai (supra) becomes an integral part of the sub section itself. So read the proviso confer power on the corporation to make nomination from parties, or groups, fronts or aghadies not already represented and to the extent give a vested right to such other members to be considered for nomination. Question No. 4 answered accordingly.
17. Considering the discussions, apart from recognized or registered parties, or groups, or aghadies or fronts, nominations can also be made from members who may be independent or others whether belonging to recognized or registered party, group or aghadi or not but not already represented. Question No. 5 answered accordingly.
18. Considering the above discussions, the questions formulated are answered in the following terms:
1. Whether, in the light of Section 31A(2) of the Affirmative Bombay Provincial Municipal Corporations Act, a party which is entitled to a quota can nominate to the committee a member who does not belong to it?"
2. Whether the procedure laid down in para 6 of the The view taken in judgment in the case of Vasant Nivrutti Gite and Vasant Gite's case as now explained 25 ::: Downloaded on - 09/06/2013 15:47:44 ::: anr. Vs. The Municipal Corporation of City of represents the correct view.
Nashik and Ors. (Writ Petition No. 2564 of 2007 decided on 30.4.2007) (supra) for determining the party-wise representation on the Standing Committee is in keeping with the scheme of sub section (2) of section 31A of the Act?
3. Whether the words "in proportion to the strength In view of the language, in proportion to the of such parties or groups in the Corporation" strength of such parties or groups in the contemplate inclusion of the number of the Corporation includes ig independent councilors.
independent Councilors or Councilors/members not belonging to any recognized party or registered party or group or front/Aghadi?
4. Whether the first proviso below sub section (2) of First Proviso does give section 31A of the Act is only an vested right to such other members enabling/discretionary provision and it does not belonging to parties, grops, fronts or create any vested right of appointment by aghadies and independents not nomination in favour of any Councilor/member already represented to be nominated.
not belonging to any recognized parties or registered parties or groups or fronts/aghadis?26 ::: Downloaded on - 09/06/2013 15:47:44 :::
5.Whether the appointment by nomination on the In view of the answers to the other questions, Standing Committee is required to be made only from in our opinion, after representation is given amongst the Councilors/members from/representing the to registered parties or groups or aghadies or recognized parties or registered parties or groups or fronts, the remaining seats should be filled fronts/aghadis?" by nomination from other recognised parties, or registered parties or fronts or aghadies or independents not already represented.
The reference is accordingly answered in terms of the majority view.
(D.G. KARNIK,J.) (F.I. REBELLO,J.)
JUDGMENT: (PER J.H.BHATIA, J.)
19. I had the benefit of going through the Judgment written by Mr.Justice F.I. Rebello. However, I regret that I could not persuade myself to agree with conclusions and the reasons therefor in respect of some of the questions.
As the dispute, the questions before the Full Bench and the 27 ::: Downloaded on - 09/06/2013 15:47:44 ::: arguments advanced by the learned Counsel are noted in the said Judgment, I will not repeat the same.
20. For proper interpretation of the provisions of Section 31A, it will be necessary to consider the language of the said Section along with objects for which Section 31A was introduced. Section 31A reads as follows :-
"31A. Appointment by nomination on Committee 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 Councillor to any Committee shall be by virtue of his holding any office,appointment of Councllors 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 Committee appointed under
section 31.
(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 28 ::: Downloaded on - 09/06/2013 15:47:44 ::: consulting the Leader of the House, the Leader of Opposition and the leader of each such party or group;
Provided that, nothing contained in this sub-section be construed as preventing the Corporation from nominating on the Committee any member not belonging to any such party or group;
Provided further that, for the purpose of deciding the relative strength of the recognised parties or registered parties or groups under this act, the recognised parties or registered parties or groups, or elected Councillors not belonging to any such party or group may, notwithstanding anything contained in the Maharashtra Local Authority Members' Disqualification Act,1986 within a period of 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 registered pre-poll aghadi or front.
(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."
Relevant parts of the Statement of Objects and Reasons read as follows :-
"The Mumbai Municipal Corporation Act, the Bombay Provincial Municipal Corporations Act, 1949 and the City of Nagpur Corporation Act, 1948, provide for the constitution of the Standing Committee and the Subjects Committees. The members of these Committees were appointed by election by the Corporations.29 ::: Downloaded on - 09/06/2013 15:47:44 :::
3. To ensure that all the recognised parties and groups in the Corporation are adequately represented in the Committees constituted under the Corporations Acts, the Government considered it expedient to amend these Acts to provide for the nomination of members of the Committees in proportion to the strength of the political parties or groups in the Corporation."
21. On perusal of the Statement of Objects and Reasons, it becomes clear that the main object of insertion of section 31A in the Act was to ensure that all the recognised parties and groups in the Corporation are adequately represented in the committees in proportion to the strength of the political parties and their groups in the Corporation. Sub-Section (1) of section 31A provides that appointment of a councillor to any committee shall be made by the Corporation by nominating councillors in accordance with the provisions of sub-section (2) on the different committees, including the Standing Committee. In the present matter, the dispute is only about the appointment to the Standing Committee. Sub-section (2) provides that in nominating the councillor on the Committee the Corporation shall -
(a) take into account the relative strength of the recognised parties or registered parties or groups,
(b) nominate members as nearly as may be, in proportion to the strength of such parties or groups in the Corporation,
(c) after consulting the Leader of the House, the Leader of Opposition and the leader of each such party or group.
30 ::: Downloaded on - 09/06/2013 15:47:44 :::The first proviso to sub- section (2) enables the Corporation to nominate on the Committee any member who may not be belonging to any such party or group.
22. It will be useful to refer certain provisions of the Maharashtra Local Authority Members' Disqualification Act, 1986 (hereinafter referred to as "the Disqualification Act"). Section 2(a) of the Disqualification Act defines "aghadi" or "front" as a group of persons who have formed themselves into party for the purpose of setting up candidates for election to a local authority. As per Section 2(i) "municipal party", in relation to the Councillor belonging to any political party or aghadi or front in accordance with the Explanation to section 3, means -
(i) in the case of a Councillor of a Municipal Corporation, the group consisting of all Councillors of the Municipal Corporation for the time being belonging to that political party or aghadi or front in accordance with the said Explanation;
(ii) in the case of a Councillor of a Municipal Council, the group consisting of all the Councillors of the Municipal Council for the time being belonging to that political party or aghadi or front in accordance with the said Explanation;"
As per Section 2(j) "original political party" in relation to a Councillor or a member, means the political party to which he belongs for the purposes of sub-section (1) of section 3;"31 ::: Downloaded on - 09/06/2013 15:47:44 :::
Section 3 provides the circumstances in which a Councillor or a member belonging to any political party or aghadi or front shall be disqualified for being a councillor or a member. Section 3(2) is relevant. It reads as follows :-
"3. Disqualification on ground of defection.
(1) ......
(2) An elected Councllor, 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."
From these provisions, it becomes clear that under the provisions of the Disqualification Act, a councillor or member belongs to the political party or aghadi or front by which he was set up as a candidate for election as such councillor or member and under sub-section (2), he will be disqualified for being a councillor or member if he joins any political party or aghadi or front after such election. Similarly, a member, who was elected as an independent candidate, shall also be disqualified, if after such election he joins any political party or aghadi or front.
23. Under section 31A(2), for nominating councillors to the Committee, the relative strength of the recognized parties or registered parties 32 ::: Downloaded on - 09/06/2013 15:47:44 ::: or groups has to be taken into account and members are to be nominated to the Committee in proportion to strength of such parties or groups in the Corporation. If the provisions of the Disqualification Act and Section 31A(2) of the Corporation Act are read together without second proviso to Section 31A, the result would be that any person who is elected as an independent candidate would not be entitled to join any registered or recognised political party or group or front after the election. Similarly, any person who is elected as a candidate of any political party or aghadi or front, would not be entitled to join any other political party, aghadi or front after the election. If after election he joins any group or front or political party, he may incur disqualification in view of the provisions of section 3(2) of the Disqualification Act and, as a result of this, he may be deprived of opportunity of representation or appointment on the Committees. However, the Legislature in its wisdom, to provide equal opportunity to all members, including the independents and members of smaller parties, incorporated second proviso to sub-section (2) of Section 31A. Thereby within one month after the election results are notified, the recognised or registered parties or groups or elected councillors not belonging to any such party or group may form the aghadi or front without incurring disqualification under the Disqualification Act and if they form such aghadi or front within one month after the election results are notified, the strength of such aghadi or front formed after the election, but within one month is also to be considered for the purpose of deciding the relative strength of the recognised parties or registered parties or groups. Thus, the second proviso to sub-section (2) of 33 ::: Downloaded on - 09/06/2013 15:47:44 ::: Section 31A provides protection to the members of the recognised or registered parties or groups as well as the independent members if they want to form a new aghadi or front even after the election. In absence of the second proviso, they would not be entitled to form any such aghadi or front after the election as they would incur disqualification under the provisions of Section 3(2) of the Disqualification Act. While the smaller parties or groups in the Corporation may have bleak chances or opportunities of getting representation on the Committees by virtue of their relative strength, the independent members would not be entitled to any representation, because in view of the language of Section 31A(2), the proportionate representation can be given only on the basis of the relative strength of the registered or recognised parties, groups or fronts. Thus the members of the smaller parties and the independent members, who want to get the right of proportionate representation on Committee, are given an opportunity to form an aghadi or a front within one month after the results of the elections are notified. Thus, the legislature has given clear opportunity to the independent members to form the aghadi or front for the purpose of taking he benefit of proportionate representation on the Committees of the Corporation. On registration of such aghadi or front, provisions of Disqualification Act shall apply to members of such aghadi or front, as if it is pre-poll aghadi or front.
Thus the independent members, who form such aghadi or front, take the benefits of representation on the Committees on the basis of strength of such front or aghadi, with liability of being subject to the Disqualification Act.
Thus legislature has given the benefits with certain responsibilities in the 34 ::: Downloaded on - 09/06/2013 15:47:44 ::: larger interest of democratic institutions. The benefit of the second proviso to sub-section (2) can also be taken by the members who may be elected during by-elections and may also form a group or front or may join any existing group or front within one month after the notification of their elections.
However, if independent members do not want to avail the opportunity provided by the second proviso, they cannot make a grievance that they are deprived of representation on the Committees.
24. In view of the language of sub-section (2), only the relative strength of recognised parties or registered parties or groups has to be taken into account. The word "relative" clearly indicates the strength of each of such parties or groups in relation to each other. For the purpose of deciding relative strength of recognized or registered parties or groups, the number of independent members or councillors cannot be taken into consideration because their number does not relate to or represent any party or group. For example, the Municipal Corporation Nashik, has the strength of 108 members and 10 political parties or groups have the total strength of 98 while 10 members are independent. The Standing Committee has strength of 16.
For nomination on the Committee, the relative strength of only the registered or recognised political parties or groups has to be taken into consideration.
Each independent will have the strength of only 1/108. Because they have not formed any aghadi or front or group within the period of one month as provided by the second proviso to sub-section (2) of section 31A, the strength of those 10 members cannot be taken together as a group. If the strength of 35 ::: Downloaded on - 09/06/2013 15:47:44 ::: the 10 independent members is taken together, to provide proportionate representation to them on the Committee, it will be violation of the provisions of section 31A(2) and particularly the proviso which permits the independent members to form a group or front within one month only after the results of election. Therefore, such independent members cannot make a grievance that they do not get the right of representation on the Committee.
In view of the language of first proviso to sub-section (2), it is clear that it is only an enabling provision whereby the Corporation may nominate on the Committee any member not belonging to any such party or group. That does not give the legal right of representation or nomination on the Committee to any such independent member. It is possible that any registered or recognised party or group may nominate any independent person from its own quota decided on the basis of its relative strength.
25. In view of the clear provisions of section 31A as analysed above, there can be no doubt that the independent members cannot be taken into account for the purpose of deciding the relative strength of registered or recognized parties or groups in the Corporation. If the words "in proportion to the strength of such parties or groups in the Corporation are read in isolation, one may argue that the strength of any political party or group has to be considered in relation to the total strength in the Corporation. For example, in Nashik Municipal Corporation having strength of 108, the largest political party is Shiv Sena with 26 members. If the above referred words are read without taking into consideration the earlier part of sub-section (2), one 36 ::: Downloaded on - 09/06/2013 15:47:44 ::: may say that the strength of the Shiv Sena in the House is 26 : 108. However, if "the relative strength of the recognized party or registered parties or groups" is to be taken into account for the purpose of nomination, the number of independent members cannot be taken into consideration and the relative strength of Shiv Sena will have to be considered in relation to the strength of remaining registered or recognized parties or groups in the Corporation. As pointed out earlier, in the Nashik Municipal Corporation, out of 108 seats,98 seats are shares by 10 registered or recognized parties or groups. Therefore, to determine the relative strength of any of them in the House, their strength vis-a-vis the remaining registered or recognized parties or groups will have to be considered and that can be done only if the number of the independent members is kept out and only the number of seats shared by such parties or groups alone is taken into account. In that case, the relative strength of Shiv Sena would be 26:98 and not 26:108.
26. From the language of the sub-section (2), the intention of the legislature becomes clear that only registered or recognized parties or groups in the Corporation will have the right of proportionate representation in the Committees on the basis of their relative strength and that no such representation will be available to independents who do not avail benefit of second proviso to sub-section (2). Even though there may be large number of independent members, each of them will stand alone and independent, and they cannot be taken together for the purpose of giving proportionate representation to them on the Committees. By no stretch of imagination it 37 ::: Downloaded on - 09/06/2013 15:47:44 ::: can be inferred that the legislature wanted to give benefit of representation on the Committees to the independent members on the basis of their total number in the House, but might have forgotten to make specific provision for that. Any attempt to give them such a representation by judicial interpretation would amount to violation to the language of Section 31A.
27. In Shiv Shakti Co-op. Housing Society, Nagpur vs. Swaraj Developers and others (2003) 6 SCC 659, the Supreme Court observed as follows:-
"19. It is well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the Legislature. The Language employed in a statute is the determinative factor of legislative intent.
Words and phrases are symbols that stipulate mental references to reference. The object of interpreting a statute is to ascertain the intention of the Legislature enacting it. (See Institute of Chartered Accountants of India v. Price Waterhouse and Anr., MANU/SC/1233/1997 :
(1997)6SCC312 ) The intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support addition or substitution of words or which results in rejection of words as meaningless has to be 38 ::: Downloaded on - 09/06/2013 15:47:44 ::: avoided."
"23. Two principles of construction - one relating to casus omissus and the other in regard to reading the statute as a whole - appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature. "An intention to produce an unreasonable result", said Danackwerts, L.J. in Artemiou v. Procopiou , "is not to be imputed to a statute if there is some other construction available". Where to apply words literally would "defeat the obvious intention of the legislation and produce a wholly unreasonable result" we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction."
"24. ....
"A casus omissus ought not to be created by interpretation, save in some case of strong necessity. Where, however, a casus omissus does really occur, either through the inadvertence of the legislature, or on the principle quod semel aut bis exist it proetereunt legislatores, the rule is that the particular case, this left unprovided for, must be disposed of according to the 39 ::: Downloaded on - 09/06/2013 15:47:44 ::: law as it existed before such statute".
Same view was expressed by the Supreme Court in Union of India vs. Rajiv Kumar (2003) 6 SCC 516. In Jagjit Singh vs. State of Haryana and others (2006) 11 SCC 1, the Supreme Court referred the observations in P.K.Unni v. Nirmala Industries (1990) 2 SCC 378 observed thus :-
"The court cannot add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result."
28. Recently, in Sri Jayaram Educational Trust & Ors. v.
A.S.Syed Mohideen & Ors. JT 2010 (1) SC 391, Their Lordships reiterated the same principle as follows :-
"6. It is now well settled that a provision of a statute should have to be read as it is, in a natural manner, plain and straight, without adding, substituting or omitting any words.
While doing so, the words used in the provision should be assigned and ascribed their natural, ordinary or popular meaning. Only when such plain and straight reading, or ascribing the natural and normal meaning to the words on such reading, leads to ambiguity, vagueness, uncertainty, or absurdity which were not obviously intended by the Legislature or the Lawmaker, a court should open its interpretation tool kit containing the settled rules of construction and interpretation, to arrive at the true meaning of the provision. While using the tools of interpretation, the 40 ::: Downloaded on - 09/06/2013 15:47:44 ::: court should remember that it is not the author of the Statute who is empowered to amend, substitute or delete, so as to change the structure and contents. A court as an interpreter cannot alter or amend the law. It can only interpret the provision, to make it meaningful and workable so as to achieve the legislative object, when there is vagueness, ambiguity or absurdity. The purpose of interpretation is not to make a provision what the Judge thinks it should be, but to make it what the legislature intended it to be."
29. In view of the settled position of law, a `casus omissus' ought not be created by interpretation, save in some case of strong necessity. In the present case, if the provisions of the Disqualification Act and Section 31A of the Corporation Act, particularly second proviso to sub-section (2) are read together along with the statement of objects and reasons, it becomes clear that the legislature intended to give the proportionate representation on the Committees only to the registered or recognized parties or groups and not to any independent members. However, to form a group or a front or aghadi even after the election they were given such an opportunity by the second proviso to sub-section (2). At the cost of repetition, it needs to be said that if any independent members do not avail the opportunity provided by the second proviso to sub-section (2), they cannot thereafter make a grievance that they are deprived of any right of representation on such Committees. In view of the first proviso to sub-section (2), as pointed out earlier, the Corporation may nominate any councillor who is not member of any registered or recognized political party or group, but that is only an enabling provision 41 ::: Downloaded on - 09/06/2013 15:47:44 ::: which does not give any legal right of representation to the independent members. They may be nominated on the Committees from the quota available to any registered or recognized party or group fixed on the basis of its relative strength in the House. Sub-section (3) provides that 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. Under sub-section (3), the dispute about the quota of any party or group only may be decided by the Corporation. This is another indication that the nomination on the Committee shall be on the basis of the quota of such party or group and therefore there cannot be any scope for representation on the Committee on the basis of strength or number of the independent members taken together and therefore, merely because there may be a large number of independent members, a quota cannot be carved out for them on the basis of the total number of such independents taken together.
30. In view of the legal position discussed above, for the purpose of deciding the relative strength of the registered or recognized parties or groups, the number of independent members will have to be excluded from the total strength of the Corporation. Therefore, in case of Nashik Municipal Corporation, for the purpose of deciding the relative strength of the parties or groups, 10 independent members will have to be excluded and only the strength of 98 will have to be taken into consideration. The strength of Standing Committee is 16 and therefore, the quotient will be 98 - 16 = 6.125.
The strength or number of members of the particular party or group will have 42 ::: Downloaded on - 09/06/2013 15:47:44 ::: to be divided by 6.125. The following position will emerge :-
Parties Strength Seats to be Addl.seatsas Total
allotted as per nearest No. of Seats
per Intiger fraction.
1 2 3 4 5 6
Shiv Sena 26 4.24 4 - 4
Congress 21 3.42 3 1 4
NCP 17 2.77 2 1 3
BJP 14 2.28 2 - 2
MNS 12 1.95 1 1 2
BSP 3 0.48 1 1
RPI 2 0.32
PWP 1 0.16
Lok Jan 1 0.16
Shakti - LJS
SP 1 0.16
12 4 16
On the basis of relative strength of these parties and groups, Shiv Sena, Congress, NCP, BJP and MNS will get the quota of 4, 3, 2, 2 and 1 respectively on basis of intigers. After this, still there will be four vacancies available. They will also have to go to registered or recognised parties or groups on the basis of their strength depicted by the decimal or fraction in descending order. If the fraction 0.50 or more is treated as one and fraction of 0.49 is ignored, NCP and MNS would get one additional seat on the basis of their fractions being .77 and .95. After this, still there will be two more seats. As per the decision in Vasant Gite, these two seats. will have to be filled in by parties or independents, who are not already represented.
43 ::: Downloaded on - 09/06/2013 15:47:44 :::31. Mr. Anturkar, learned Counsel vehemently contended that rule of rounding off is now well recognized and is based upon the logic and common sense. For this he relied upon State of U.P. vs. Pawankumar Tiwari, (2005) 2 SCC 10. In that case, 93 posts of Civil Judges, J.D. were advertised and 50% of the posts were reserved for different categories and 50% were for the general or open category. In view of this percentage 46.50 seats would be available for reserved category and 46.50 for general category. The State Government rounded off the number of posts available for general category at 46 and for the reserved category at 47. The High Court found fault with the process and held that the number of posts available for general category could not be rounded off at 46, but should have been rounded off at 47. The Supreme Court dismissed the appeal of the State Government and held that if the seats for reserved category are fixed at 47, it would cross the limit of 50% and therefore it could not be upheld and as such number of posts available for reserved category could be fixed at 46 and that for general category should have been fixed a 47. Their Lordships observed as follows in para 9 :-
"9. There is yet another reason why the judgment of the high Court has to be maintained. The total number of vacancies was 93. Consequent upon the allocation of reservation and calculation done by the appellants, the number of reserved seats would be 47, leaving only 46 available for general category candidates. Meaning thereby, the reservation would exceed 50% which would be 44 ::: Downloaded on - 09/06/2013 15:47:44 ::: unconstitutional. The total number of reserved seats could not have been more than 46 out of 93."
In fact, in this case, both the groups had 46.5 and if the same formula would be applied, then in each case .50 could have been rounded off to 1 and each of the group would be entitled to 47 seats. In that case, the total number would become 94, while the total vacancies available were only 93. Thus, rounding off is not the ratio or principle on which that case was decided. It was decided mainly on the question as to whether reserved categories may get seats more than 50% quota. Therefore the authority in Pawan Kumar Tiwari's case could not be used in support of the view taken in Vasant Gite.
32. In Jai Shankar Prasad vs. State of Bihar and others (1993) 2 SCC 597, the question was about appointment of members to the Public Service Commission. Clause (1) of Art. 316 of the Constitution provides for appointment of Chairman or other members of Public Service Commission.
The proviso to clause (1) provides that "as nearly as may be one-half of the members" of the Public Service Commission shall be persons who have held office for at least 10 years either under Government of India or under the Government of State. In the Commission comprising eleven members, appointment of seventh non-service member was challenged. The Supreme Court observed in para 9 that the expression "as nearly as may be" itself suggests that the proportion of 50% of the service members is not exact, but approximate and is meant not to be mandatory but directory. In view of this, Mr. Vashi, learned Counsel contended that expression "as nearly as may be"
45 ::: Downloaded on - 09/06/2013 15:47:44 :::in S.31A(2) does not indicate that the fractions must be 0.50 or more, to allot a seat.
33. In R.C.Poudyal vs. Union of India & Ors. 1994 Supp (1) SCC 324, the Supreme Court was required to consider the provisions of Article 332(3) of the Constitution which provides that the number of seats reserved for Scheduled caste or Scheduled Tribe in the Legislative Assembly shall bear "as nearly as may be" the same proportion to the total number of seats in the Assembly as the population of the Scheduled Castes or the Scheduled Tribes in the State may be to the total population of the state.
Their Lordships observed as follows in para 187 :-
"187. In clause (3) of Article 332, the words "as nearly as may be" have been used. These words indicate that even in the matter of reservation of seats for Scheduled Castes and Scheduled Tribes it would be permissible to have deviation to some extent from the requirement that number of seats reserved for Scheduled Castes or the Scheduled Tribes in the Legislative assembly of any State shall bear the same proportion to the total number of seats as the population of the Scheduled Castes or the Scheduled Tribes in the State in respect of which seats are so reserved, bears to the total population of the State. The non-obstante clause in Article 371-F read with clause (f) of the said article enlarges the field of deviation in the matter of reservation of seats from the proportion laid down in Article 332(3). The only limitation on such deviation is that it must not be to such an extent as to 46 ::: Downloaded on - 09/06/2013 15:47:45 ::: result in tilting the balance in favour of the Scheduled Castes or the Scheduled Tribes for whom the seats are reserved and thereby convert a minority into majority. This would adversely affect the democratic functioning of the legislature in the state which is the core of representative Democracy. Clause (a) of sub-section (1-A) of Section 7 of the 1950 Act provides for reservation of twelve seats in an Assembly having thirty-two seats, i.e., to the extent of about 38 per cent seats for Sikkimese of Bhutia-Lepcha origin. The said provision does not, therefore, transgress the limits of the power conferred on Parliament under Article 371-F(f) and it cannot be said that it suffers from the vice of unconstitutionality."
From the above observations, it is clear that when the number of reserved seats is in the ratio of population, "as nearly as may be" it would be permissible to have deviation to some extent from the requirement of the number of seats reserved.
34. To consider the relative strength of the recognised or registered parties or groups and to nominate members "as nearly as may be"
in proportion to the strength of such parties or groups, there is no justification to ignore fraction below 0.5 and all the fractions would have to be considered and the seats will have to be allotted in the descending order of the fractions to the concerned registered or recognised parties or groups. Once this principle is followed, in the case of Nashik Municipal Corporation, noted earlier, remaining two seats would be allotted to BSP and the Congress respectively on the basis of the fraction 0.48 and .42 respectively. As a result, 47 ::: Downloaded on - 09/06/2013 15:47:45 ::: the registered or recognized parties or groups would be entitled to the number of seats indicated in the last column of chart shown above and nothing will remain to be distributed to any other party having lesser fraction or to independents.
35. In view of the first proviso to sub-section (2) of section 31A, it is clear that the Corporation may nominate any member not belonging to any such party or group. As observed above, independent members will not have any legal right to have representation or to be appointed on the Committee but this proviso being enabling proviso, any independent member may also be nominated out of the quota allotted to any recognised or registered parties or groups if such party or group so desires.
36. In view of the above, I would answer the questions as follows :-
Question Nos. 1 & 5 :
While only the recognised parties,registered parties or groups or fronts/aghadi will have right to appointment by nomination on the Standing Committee on the basis of the relative strength of such parties or groups, they may nominate to the Committee any member, who does not belong to it, from its own quota.
Question No.2 :
The procedure laid down in para 6 of Vasant Gite vs. Municipal Corporation of City of Nashik W.P. No.2564/2007 is not correct. All the fractions would have to be considered and seats should be allotted in the 48 ::: Downloaded on - 09/06/2013 15:47:45 ::: descending order of fractions even though the fraction is less than 0.5.
Question No.3 :
The number of independent councillors or members not belonging to any recognised party or registered party or group or front/aghadi cannot be taken into account while deciding the relative strength of such parties or groups in the Corporation.
Question No.4 :
The first proviso below sub-section (2) of Section 31A is only enabling/discretionary provision and does not create any vested right of appointment by nomination in favour of any councillor or member not belonging to any recognised party or registered party or groups or front/aghadi.
(J.H.BHATIA,J.) 49 ::: Downloaded on - 09/06/2013 15:47:45 :::