Bombay High Court
Dipak Gangadharrao Sul And Another vs The State Of Maharashtra And Others on 5 September, 2018
Author: Manish Pitale
Bench: Prasanna B. Varale, Manish Pitale
Writ Petition No.6897/2018
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO.6897 OF 2018 WITH
CIVIL APPLICATION NO.9034 OF 2018
1. Dipak s/o Gangadharrao Sul
Age 45 years, Occ. Corporator,
R/o Ambajogai Road,
Beside Amba Hanuman Mandir,
Latur, District Latur.
2. Vijaykumar s/o Hanumantrao Sabde,
Age 60 years, Occ. Business,
R/o Barshi Road, Latur,
Taluka and District Latur. ... PETITIONERS
VERSUS
1. The State of Maharashtra
through the Secretary for
Urban Development Department,
Mantralaya, Mumbai.
2. The Divisional Commissioner,
Aurangabad Division, Aurangabad
3. The Municipal Secretary,
Latur City Municipal Corporation,
Latur.
4. The Collector,
Latur, District Latur.
5. The Latur City Municipal Corporation,
Latur, Main Road, Latur,
District Latur,
through its Commissioner.
6. The Mayor,
The Latur City Municipal Corporation,
Latur, Main Road, Latur,
District Latur.
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Writ Petition No.6897/2018
2
7. Shailesh Prakash Gojamgunde,
Age 41 years, Occ. Advocate/
Chairman of Standing Committee,
Latur Municipal Corporation,
Latur, R/o Teli Galli, Latur
Taluka and District Latur. ... RESPONDENTS
.....
Shri V.D. Hon, Senior Counsel instructed by
Shri P.P. More, Advocate for petitioners
Shri C.S. Kulkarni, A.G.P. for respondents No.1 and 2
Shri N.P. Patil Jamalpurkar, advocate for respondent No.3
Shri S.P. Urgunde, with Shri A.N. Irpatgire, Advocates for
respondent No.5
Ms Pradnya Talekar, Advocate for respondent No.6
Shri B.R. Kedar, Advocate for respondent No.7
.....
WITH
CIVIL APPLICATION NO.9702 OF 2018 IN
WRIT PETITION NO.6897 OF 2018
Puneet s/o Shivraj Patil
Age 34 years, Occu. Business,
R/o Ausa Road, Taluka and
District Latur. ... ... APPLICANT
VERSUS
1. Dipak s/o Gangadharrao Sul
Age 45 years, Occ. Corporator,
R/o Ambajogai Road,
Beside Amba Hanuman Mandir,
Latur, District Latur.
2. Vijaykumar s/o Hanumantrao Sabde,
Age 60 years, Occ. Business,
R/o Barshi Road, Latur,
Taluka and District Latur.
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Writ Petition No.6897/2018
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3. The State of Maharashtra
through the Secretary for
Urban Development Department,
Mantralaya, Mumbai.
4. The Divisional Commissioner,
Aurangabad Division, Aurangabad
5. The Municipal Secretary,
Latur City Municipal Corporation,
Latur.
6. The Collector,
Latur, District Latur.
7. The Latur City Municipal Corporation,
Latur, Main Road, Latur,
District Latur,
through its Commissioner.
8. The Mayor,
The Latur City Municipal Corporation,
Latur, Main Road, Latur,
District Latur.
9. Shailesh Prakash Gojamgunde,
Age 41 years, Occ. Advocate/
Chairman of Standing Committee,
Latur Municipal Corporation,
Latur, R/o Teli Galli, Latur
Taluka and District Latur. ... RESPONDENTS
.....
Mrs. Priyendra G. Sontakke, advocate for applicant
Shri V.D. Hon, Senior Counsel instructed by
Shri P.P. More, Advocate for original writ petitioners
Shri C.S. Kulkarni, A.G.P. for State
Shri N.P. Patil Jamalpurkar, advocate for respondent No.5
Shri S.P. Urgunde, with Shri A.N. Irpatgire, Advocates for
respondent No.7
Ms Pradnya Talekar, Advocate for respondent No.8
Shri B.R. Kedar, Advocate for respondent No.9
.....
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Writ Petition No.6897/2018
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CORAM: PRASANNA B. VARALE AND
MANISH PITALE, JJ.
Date of reserving judgment : 29th August, 2018.
Date of pronouncing judgment : 5th September, 2018.
JUDGMENT (PER MANISH PITALE, J.)
1. Rule. Rule made returnable forthwith and heard finally with the consent of learned counsel for the parties.
2. By this Writ Petition, the petitioners, being elected Corporators of the Latur City Municipal Corporation, have challenged the election of Chairman of Standing Committee of the Corporation, as also appointment of fresh members of the Standing Committee, on the ground that the provisions of the Maharashtra Municipal Corporations Act, 1949 (hereinafter referred to as the 'said Act') were violated and that the election of the Chairman as also appointment of members of the Standing Committee deserves to be quashed and set aside.
3. The facts leading up to filing of the present Writ Petition are that, on 19.4.2017, election was conducted for electing members of the said Municipal Corporation. The first meeting of the elected members of the Corporation was held on 22.5.2017. In this meeting, the Mayor, Deputy Mayor and ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:52 ::: Writ Petition No.6897/2018 5 members of the Standing Committee were elected. Accordingly, the Standing Committee stood constituted on 22.5.2017.
4. As per Section 20(3) of the said Act, 8 members of the Standing Committee, being one half of the total number of 16, were to retire on the first day of the month in which the first meeting of the Corporation took place when the 16 members of the Standing Committee had been elected. In the present case, since the 16 members of the Standing Committee stood elected on 22/5/2017, the period of one year was to expire on 1.5.2018. As per Section 20(4) and (5) of the said Act, 8 members who were due to retire, were to be selected by lot and fresh members were to be appointed in a meeting to be held in the month preceding the date of retirement of the 8 members, which in this case, was 1.5.2018.
5. It is an admitted position that, neither the 8 members who were due to retire were selected by lot nor were fresh members identified for appointment to the Standing Committee prior to 1.5.2018. It is also an admitted position that since 1.5.2018 was a holiday, the appointed day for retirement of the 8 members of the Standing Committee was 2.5.2018. In the present case, interpretation of Sections 20 and 21 would determine whether the challenge raised on behalf of the ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:52 ::: Writ Petition No.6897/2018 6 petitioners should succeed. Reference will be made to the said provisions and interpretation of same hereinafter, but for the present, it would be sufficient to note that the requirements of Section 20 of the said Act were not satisfied insofar as selection of retiring members and appointment of fresh members in the Standing Committee before 2.5.2018 was concerned.
6. It has come on record that, no action was taken as contemplated under Section 20(4) of the said Act for selecting 8 members of the Standing Committee to be retired on 2.5.2018 before the said date and consequently, no action was also taken under Section 20(5) of the said Act for appointment of fresh members on the Standing Committee in any meeting held in the month preceding 2.5.2018. A meeting was held on 2.5.2018 chaired by the Municipal Commissioner of the respondent Municipal Corporation, where 8 members of the Standing Committee were identified for being retired. Minutes of the meeting were recorded. Thereafter, no further action was undertaken for appointment of fresh 8 members on the Standing Committee and it was only on 6.6.2018 that a notice was issued for conducting the process of appointment of fresh members of the Standing Committee on 14.6.2018. A notice dated 12.6.2018 was issued to all elected members of the Corporation to the effect that election would be held on 15.6.2018 for electing ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:52 ::: Writ Petition No.6897/2018 7 Chairman of the Standing Committee under Section 21(5) of the said Act.
7. The petitioners and some other elected members of the Corporation raised objection on 15.6.2018, when the meeting was held for electing Chairman of the Standing Committee under Section 21(5) of the said Act. The petitioners and some other elected members of the Corporation did not participate in the election process and after registering their objection, they refused to participate in the proceedings. In the said meeting, respondent No.7 stood elected as Chairman of the Standing Committee. The petitioners have called into question the aforesaid election of respondent No.7 as Chairman of the Standing Committee and they have also challenged the appointment of 8 fresh members of the Standing Committee on 14.6.2018. It is claimed that, the requirements of Sections 20 and 21 of the said Act were flagrantly violated in the instant case and that the entire process was vitiated, rendering the appointment of fresh members to the Standing Committee on 14.6.2018 and election of the Chairman of the Standing Committee on 15.6.2018, as illegal and wholly unsustainable.
8. Mr. V.D. Hon, learned Senior Counsel, instructed by Mr. P.P. More, learned counsel appearing for the petitioners ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:52 ::: Writ Petition No.6897/2018 8 submitted that, in the present case, the mandate of Section 20 of the said Act stood violated at every stage and that, the retirement of 8 members of the Standing Committee and appointment of fresh members in their place was rendered wholly illegal. It was submitted that, consequently, the recourse taken to Section 21(5) of the said Act, in the facts of the present case, was wholly unjustified and that the manner in which the Chairman of the Standing Committee was elected by the members of the Corporation, was not sustainable in the eyes of law. It was submitted that, when notice dated 12.6.2018 for election of Chairman of Standing Committee was issued, the Standing Committee itself was not in existence because, 8 fresh members in place of retired members had not been appointed and such a truncated Standing Committee was not at all contemplated under the provisions of the said Act. In the absence of a 16 member Standing Committee, as envisaged under Section 20(1) of the said Act, issuance of notice dated 12.6.2018 for election of Chairman of the Standing Committee on 15.6.2018, was void and illegal.
9. It was further submitted that, the mandatory requirement of the Bombay Provincial Municipal Corporation (Conduct of Elections to the post of the Chairman of the Standing Committee, Transport Committee, Wards Committees and other ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:52 ::: Writ Petition No.6897/2018 9 Committees) Rules, 2007 (hereinafter referred to as the 'Rules of 2007') were violated in the present case while conducting special meeting for election of Chairman of the Standing Committee on 15.6.2018. It was pointed out that, while Rule 4 of the said Rules of 2007 mandated that such a special meeting shall be presided over by the concerned Divisional Commissioner or his representative not below the rank of Additional Divisional Commissioner, in the present case, the meeting was presided over by the Mayor, which was illegal. It was further pointed out that, Rule 2(2) of the Rules of 2007 requires notice of 3 clear days for conducting such a special meeting, but in the present case, the notice was dated 12.6.2018 for the meeting to be conducted on 15.6.2018, thereby showing that notice of 3 clear days was not given. On this basis, it was submitted that, the election procedure adopted on 15.6.2018 was vitiated and that, on this ground also the Writ Petition deserved to be allowed. Learned Senior Counsel placed reliance on judgment of this Court in the case of Ashraf Yunus Motiwala & another Vs. The State of Maharashtra & others reported in [2000 (4) Mh.L.J. 13 ].
10. Ms Pradnya Talekar, learned counsel appearing on behalf of respondent No.6 opposed the submissions made on behalf of the petitioners and submitted that, the petitioners ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:52 ::: Writ Petition No.6897/2018 10 ought to have availed alternative remedy under Section 451 of the said Act by approaching the State Government, instead of invoking writ jurisdiction of this Court. On merits, it was submitted by the learned counsel that, in the peculiar facts and circumstances of the present case, there was no alternative but to take recourse to Section 21(5) of the said Act for election of Chairman of the Standing Committee, because if such action was not taken, the Corporation would have been left with absence of Chairman of the Standing Committee throughout the next year of its operation. It was further submitted that, the requirements of Section 20 of the said Act were not fulfilled in the present case because of the actions of the erstwhile Chairman of the Standing Committee as he failed to firstly, take action under Section 20(4) for selecting 8 members of the Standing Committee for retirement and secondly, he failed to hold a meeting under Section 20(5) of the said Act for appointment of fresh members to the Standing Committee in place of the members identified to be retired in the month preceding the date of their retirement. It was due to failure of the erstwhile Chairman of the Standing Committee that such a situation had arisen. According to the learned counsel, in such a situation, there was no alternative but for the Commissioner to have invoked Rule 45 of the Election Rules specified in Schedule 'D' of the said Act for convening a meeting on 2.5.2018 for identifying the retiring 8 members of the ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:52 ::: Writ Petition No.6897/2018 11 Standing Committee. Thereafter, since no further action was taken for appointment of 8 fresh members to the Standing Committee, the notice dated 6.6.2018 was issued for appointment of such 8 members on 14.6.2018 and Section 21(5) of the said Act had to be invoked for conducting a meeting on 15.6.2018 for electing Chairman of the Standing Committee, without which there would have been a vacuum and a legal impasse, which could not be countenanced in the functioning of the Corporation.
11. It was further submitted that, the Rules of 2007 did not apply to the election of Chairman of Standing Committee under Section 21(5) of the said Act, because the said rule applies only when the Standing Committee was electing the Chairman and not the Corporation under Section 21(5) of the said Act. Another submission raised on behalf of respondent No.6, was that, even if it was assumed for the sake of argument that notice of three clear days was not given to members under Rule 2(2) of the Rules of 2007, it was a mere irregularity and no prejudice was caused to members of the Corporation as all of them had received notices and they had indeed attended the special meeting conducted on 15.6.2018 and on this basis, it was submitted that the Writ Petition deserved to be dismissed. The learned counsel placed reliance on judgment of this Court in the ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:52 ::: Writ Petition No.6897/2018 12 case of Nitin s/o Manga Shirsat Vs. State of Maharashtra & others reported in [2006 (3) Mh.L.J. 601]; Narendra Bhaskarrao Patil, etc. Vs. Municipal Secretary, Jalgaon City Municipal Corporation reported in [(2004) 4 Bom.C.R. 953] and judgments of the Hon'ble Supreme Court in the case of K. Narasimhiah Vs. H.C. Singri Gowda & others reported in [AIR 1966 SC 330] and Rajmallaiah & another Vs. Anil Kishore & others reported in [1980 Supp. SCC 81].
12. Mr. N.P. Patil Jamalpurkar, learned counsel appearing on behalf of respondent No.3 submitted that the petitioners ought to have exhausted alternate remedy of approaching the State Government under Section 451 of the said Act. The learned counsel pointed out order dated 23.7.2018 passed by Division Bench of this Court in Writ Petition No.8252/2018, wherein the petitioner had called in question the said special meeting dated 15.6.2018. In the said order, the Division Bench took note of the submission regarding alternate remedy and disposed of the Writ Petition with liberty to the petitioner to avail of such alternate remedy. On this basis, it was submitted that the present Writ Petition ought not to be entertained. Apart from this, the learned counsel made submissions on the same lines as the submissions made on behalf of respondent No.6. ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:52 ::: Writ Petition No.6897/2018 13
13. Mr. B.R. Kedar, learned counsel appearing on behalf of respondent No.7, the person elected as Chairman of Standing Committee in the special meeting dated 15.6.2018, submitted that the Writ Petition deserved to be dismissed because the erstwhile Chairman of the Standing Committee was responsible for the mess created in the present case and that recourse to Section 21(5) of the said Act was the only option available. It was submitted that, when all the members of the Corporation had been put to notice and they had attended the special meeting, no challenge could be raised to the election of the respondent No.7 as the Chairman of the Standing Committee.
14. Mr. S.P. Urgunde and Mr. A.N. Irpatgire, learned counsel appeared for respondent No.5 and Mrs. Priyendra Sontakke, learned counsel appeared for the intervener, who supported the petitioners.
15. Heard learned counsel for the parties. Before dealing with the contentions raised by the parties on merits, it would be appropriate to first deal with the contention raised on behalf of the respondents regarding availability of alternate remedy to the petitioners. It has been contended that, the petitioners should have approached the State Government under Section 451 of the said Act, as had been done by a similarly placed member of the ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:52 ::: Writ Petition No.6897/2018 14 Corporation. In this context, reference was also made to order dated 23.7.2018, passed by another Division Bench of this Court in Writ Petition No.8252/2018. A perusal of the said order shows that, the petitioner therein appears to have conceded to exercising the option of availing the alternate remedy. There was no contest on behalf of the petitioner therein as regards the question of maintainability of the Writ Petition. In contrast, in the present case, the petitioners have pointed out that, Section 451 of the said Act cannot be said to be an alternate remedy when election of Chairman of Standing Committee is called into question. Reliance has been placed on judgment of this Court in case of Ashraf Yunus Motiwala & another Vs. The State of Maharashtra & others (supra).
16. In the said case also this Court considered the question of availability of alternate remedy in similar circumstances, under Section 451 of the said Act. In paragraph 11 of the said judgment, it has been held as follows :
"11. Section 451 of the Municipal Corporations Act sets out powers of the State Government to suspend or rescind any resolution or order etc. of the Corporation or other authority in certain cases. This section does not specify the State Government's power to set aside the elections to any of the committees of the Corporation and ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:52 ::: Writ Petition No.6897/2018 15 the word "resolutions or order of the Corporation or any other authority" cannot be equated with the election proceedings and, therefore, under the said section the State Government does not have the powers to deal with the challenge against the election proceedings to any of the committees of the Corporation. There is no doubt that the election to any of these committees or sub- committees can be challenged by filing a civil suit under section 9 of the Civil Procedure Code as the said remedy is not impliedly or expressly barred under the provisions of the Municipal Corporations Act. At the same time availability of remedy under section 9 of the Civil Procedure Code by itself will not operate against the petitioners to approach this Court in writ proceedings by invoking Article 226 of the Constitution as the petitioners have the right to elect a remedy from amongst the remedies available and choice of one of the remedies is at the discretion of the party concerned. Having exercised one of such remedies the party is debarred from resorting to the other remedy subsequently that is after being unsuccessful in the earlier proceedings. At the same time if the petition involves disputed questions of facts, it requires to be dismissed at the threshold and we are satisfied that no such disputed facts are involved in the present petition regarding the issues under considerations. We, therefore hold that the preliminary objections regarding the maintainability of this petition under Article 226 of the Constitution cannot be sustained."
A perusal of the paragraph quoted above shows that, it has been found that, Section 451 of the Act does not confer ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:52 ::: Writ Petition No.6897/2018 16 power on the State Government to set aside election to any of the Committees of the Corporation. In the present case also, election of Chairman of the Standing Committee is called into question and there are no disputed questions of facts in the present case. The parties have submitted on interpretation of provisions of the said Act and their application to admitted set of facts. In this situation, the contention regarding maintainability of the Writ Petition on the availability of alternate remedy, raised on behalf of the respondents, cannot be accepted. Even otherwise, the rule of alternate remedy is a rule of prudence and not a rule of law. Therefore, it is held that the present Writ Petition filed by the petitioners is maintainable.
17. As regards merits of the contentions raised on behalf of the parties, since interpretation and interplay of Sections 20 and 21 of the said Act is involved in the present case, it would be appropriate to quote the said provisions, which read as under :
"20. (1) The Standing Committee shall consist of sixteen councillors.
(2) The Corporation shall at its first meeting after general elections appoint sixteen persons out of its own body to be members of the Standing Committee.
(3) One-half of the members of the Standing ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:52 ::: Writ Petition No.6897/2018 17 Committee shall retire every succeeding year at noon on the first day of the month in which the first meeting of the Corporation mentioned in sub-section (2) was held:
Provided that all the members of the Standing Committee in office when general elections are held shall retire from office on the election of a new Committee under sub-section (2).
(4) The members who shall retire under sub-
section (3) one year after their election under sub-
section (2) shall be selected by lot at such time previous to the date for retirement specified in sub-section (3) and in such manner as the Chairman of the Standing Committee may determine, and in succeeding years the members who shall retire under this section shall be those who have been longest in office :
Provided that, in the case of a member who has been reappointed, the term of his office for the purposes of this sub-section shall be computed from the date of his reappointment.
(5) The Corporation shall at its meeting held in the month preceding the date of retirement specified in sub-
section (3) appoint fresh members of the Standing Committee to fill the offices of those who are due to retire on the said date.
(6) Any Councillor who ceases to be a member of the Standing Committee shall be eligible for reappointment.
21. (1) The Standing Committee shall at its first meeting after its appointment under sub-section (2) of Section 20 at its first meeting in the same month in each succeeding ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:52 ::: Writ Petition No.6897/2018 18 year appoint one of its own number to be the Chairman. (2) The Chairman shall hold office until his successor has been appointed under sub-section (1) but shall be eligible for reappointment.
(3) Notwithstanding the provisions of sub-sections (1) and (2) the Chairman shall vacate office as soon as he ceases to be a member of the Committee.
(4) If any casual vacancy occurs in the office of the Chairman, the Standing Committee shall, as soon as conveniently may be after the occurrence of the vacancy, appoint one of its number to fill such vacancy and every Chairman so appointed shall continue in office so long only as the person in whose place he is appointed would have held it if such vacancy had not occurred. (5) If for any reason the Standing Committee does not appoint the Chairman under sub-section (1) or (4), within a period of thirty days from the date of its appointment under sub-section (2) of section 20, or from the date following the date of retirement of one-half of the members specified in sub-section (3) of that section, or from the date on which a casual vacancy occurs in the office of Chairman, as the case may be, the appointment of the Chairman, after the expiry of the said period, shall be made by the Corporation, from amongst the members of the Standing Committee, at a special meeting called and held for the purpose within fifteen days from the expiry of the said period of thirty days. At such meeting, the question shall be decided by a majority of votes of the Councillors present and voting and if there be an equality of votes, the presiding authority shall have and ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:52 ::: Writ Petition No.6897/2018 19 exercise a second or casting vote. Every Chairman so appointed, shall continue in office so long only as the Chairman appointed by the Standing Committee would have continued in office."
18. A bare reading of Section 20 of the said Act quoted above, shows that, the Standing Committee shall consist of 16 members and that they shall be appointed in the first meeting after general elections of the Corporation. One half of members of the Standing Committee retire every succeeding year on the first day of the month in which the first meeting of the Corporation took place. It is further provided that, the time and manner in which such one half of members shall retire in the succeeding year upon selection by lots shall be determined by the Chairman of the Standing Committee. In the subsequent years, the members who have been longest in office shall retire. In order to ensure continuity of the Standing Committee of 16 members, it is specifically provided in sub-section 5 of Section 20 of the Act that the Corporation shall appoint fresh members of the Standing Committee at its meeting held in the month preceding the date of retirement specified in sub-section (3). It is also further provided that, a Councillor who ceases to be a member of the Standing Committee, shall be eligible for reappointment.
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19. The scheme of Section 20 makes it clear that, while one half of members of the Standing Committee would retire and be replaced by new members, the total number would continue to be 16 and there would be no break or hiatus in the constitution of the 16 member Standing Committee. A proper reading of all sub-sections of Section 20 of the Act shows that, the Chairman of the Standing Committee must select members who are to retire much prior to the date of their retirement as specified in sub-section (3) of Section 20 of the Act and that those fresh members who are to be appointed to the Standing Committee need to be identified and appointed in a meeting of the Corporation held in the month preceding the date of retirement of members. Since sub-section (6) of Section 20 provides that any Councillor who ceases to be a member of the Standing Committee shall be eligible for reappointment, the Chairman of the Standing Committee obviously needs to select the retiring members prior to the meeting to be held in the month preceding the date of retirement for appointment of fresh members to the Standing Committee. It is only by this method that a retiring member could also be reappointed. Any departure from this scheme would not only result in violation of mandatory provisions of all sub-sections of Section 20 of the Act, but it would render impossible the process of continued existence of ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:52 ::: Writ Petition No.6897/2018 21 the Standing Committee.
20. Section 21 of the said Act deals with the manner in which Chairman of the Standing Committee is to be elected on every occasion when the Standing Committee is reconstituted in terms of Section 20 of the Act. Sub-sections (1) and (4) thereof deal with a situation where the Standing Committee is to elect the Chairman. It is only when the Standing Committee fails to appoint the Chairman, within 30 days of the date of its appointment or from the date of following the retirement of one half of members of the Standing Committee, that sub-section (5) of Section 21 of the said Act comes into operation. It is only in such a contingency that elected members/ Councillors of the Corporation elect the Chairman of the Standing Committee in a special meeting to be conducted within 15 days of expiry of the said period of 30 days. The said provision requires appointment of Chairman of the Standing Committee by the members of the Standing Committee itself and it is only as an exception carved out under sub-section (5) of Section 21 of the Act that the elected members/ Councillors of the Corporation appoint the Chairman in a special meeting.
21. The facts of the present case show that, one half of members of the Standing Committee stood retired on the first ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:52 ::: Writ Petition No.6897/2018 22 day of May 2018, as the first meeting of the elected members of the Corporation after general elections had taken place on 22.5.2017. Since the first day of May is a holiday in the State of Maharashtra, the date of retirement of one half of members of the Standing Committee in the present case, could be taken as 2.5.2018. Applying the mandatory requirements of sub-sections (3), (4) and (5) of Section 20 of the said Act, the retiring members ought to have been identified and selected by lots in a manner specified by the Chairman of the Standing Committee, well before the date of retirement of 2.5.2018. This was necessary because the Corporation was to appoint fresh members to the Standing Committee in the month 'preceding' the date 2.5.2018 i.e. the month of April 2018. But, admittedly, no such selection of retiring members or appointment of fresh members took place in the present case in any meeting in the month of April 2018 i.e. the month preceding 2.5.2018. Consequently, the 8 retiring members were identified and retired in a meeting held on 2.5.2018 itself. There was no exercise undertaken, as required under sub-section (5) of Section 20 of the Act to appoint fresh members of the Standing Committee in the month preceding 2.5.2018. Therefore, the entire process of retiring members and appointing fresh members stood vitiated.
22. The record also shows that, even the meeting held on ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:52 ::: Writ Petition No.6897/2018 23 2.5.2018 was presided over by the Municipal Commissioner and the time and manner of selection of retiring members was not determined by the Chairman of the Standing Committee, as mandated under sub-section (4) of Section 20 of the Act. The meeting was said to have been undertaken after permission from the Collector, as model Code of Conduct was said to have been in operation. There were no fresh members for appointment on the Standing Committee in place of the members identified for retirement in the meeting held on 2.5.2018. Thus, the entire process violated Section 20 of the said Act and it stood vitiated.
23. The further sequence of events shows that, on 24.5.2018, the respondent No.3 Municipal Secretary sent a letter to the respondent No.6 Mayor of the Corporation, informing that 8 members of the Standing Committee selected by draw of lots in the meeting dated 2.5.2018 stood retired and that it was necessary to hold meeting for appointment of fresh members on the 8 vacancies under Section 20(5) of the said Act. Thereafter, on 6.6.2018, the Municipal Secretary issued a notice for a meeting to be held on 14.6.2018, wherein one of the agenda items was appointment of fresh 8 members on the Standing Committee. On 12.6.2018, the Municipal Secretary, respondent No.3, issued notice to elected members of the Corporation about special meeting to be held on 15.6.2018 under Section 21(5) of ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:52 ::: Writ Petition No.6897/2018 24 the said Act for election of Chairman of the Standing Committee. Accordingly, on 15.6.2018, the special meeting was held, wherein the petitioners and other members registered their objections to the said meeting and went away from the meeting.
24. The respondent No.7 stood elected as Chairman of the Standing Committee in the said special meeting held on 15.6.2018. The aforesaid sequence of events shows that, apart from violation of requirements of various sub-sections of Section 20 of the said Act, when notice dated 12.6.2018 was issued by respondent No.3 for special meeting to be held on 15.6.2018, for electing Chairman of the Standing Committee, the Standing Committee consisting of 16 members was itself not in existence.
25. In this context, learned counsel appearing on behalf of respondent No.6 vehemently submitted that, the only crucial date in respect of counting the limitation of 30 days under Section 21(5) of the said Act was the date when, in the facts of the present case, 8 members of the Standing Committee stood retired on 2.5.2018. It was claimed that, when the Chairman of the Standing Committee was not elected within 30 days from 2.5.2018, the action of the Municipal Secretary in calling for a meeting of the Corporation under Section 21(5) of the said Act on 15.6.2018, was fully justified. In this regard, it was ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:52 ::: Writ Petition No.6897/2018 25 submitted that, date of appointment of fresh 8 members on the Standing Committee was not relevant and that the only relevant date was the date of retirement of 8 members, which, in the facts of the present case, was 2.5.2018.
26. Learned counsel appearing on behalf of respondent No.6 placed heavy reliance on judgment of this Court in the case of Nitin s/o Manga Shirsat Vs. State of Maharashtra & others (supra). Specific reliance was placed on the following paragraphs of the said judgment :
"9. So far as election of the Chairman of the Standing Committee, on conjunctive reading of provisions of Section 20 and Section 21 of the said Act, it can be seen that Section 21, sub-section (1), and section 21, sub-section (4), contemplated three contingencies in which Chairman of the Standing Committee is required to be elected. The first one is after constitution of the Standing Committee in accordance with Section 20(2) of the said Act i.e. immediately after general election. Later half of section 21(1) indicates the second contingency i.e. at its first meeting in the same month in each succeeding year. This is election of the Chairman of the Standing Committee, as soon as, complexion of the Standing Committee is changed at the end of each year by retirement and substitution of half the members. Sub- section (4) of section 21 considers the third situation when a casual vacancy occurs in the office of ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:52 ::: Writ Petition No.6897/2018 26 Chairman, may be for reasons unforeseen, such as, death or resignation or disqualification from being a corporator.
On reference to sub-section (5) of section 21, it is evident that the provision within itself contains the time limit in all three contingencies, although the opening part of the provision begins with reference only to sub-sections (1) and (4). We are unable to resist the temptation to reproduce in analytical manner, that much portion of sub-section (5), which relates to time limit in electing the Chairman of the Standing Committee :--
"........ within a period of thirty days from the date of its appointment under sub-section (2) of section 20.
or from the date following the date of retirement of one- half of the members specified in sub-section (3) of that section.
or from the date on which a casual vacancy occurs in the office of Chairman, as the case may be, ........."
The submission of learned Senior Counsel, Shri P.M. Shah, that there is outer limit of 30 days, is acceptable. However, we may not agree, if it is suggested that the period of 30 days is to be computed from the date on which fresh Standing Committee is constituted from year to year and for the next year. The three clauses, as reproduced hereinabove, clearly indicate that there are different ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:52 ::: Writ Petition No.6897/2018 27 points of time in each clause indicated as the starting point of computation of period of 30 days, available to the Standing Committee for election of its Chairman by itself. The period of 30 days is to be computed in case of first Standing Committee elected at the election of the general body, immediately after general elections under section 20(2) of the said Act; from the date of such constitution of new Standing Committee immediately after general elections. By third clause, the period of 30 days is to be computed from the date on which the casual vacancy occurs.
So far as election of the Chairman of the new Standing Committee every year, the starting point is the date of retirement of half of the members specified in sub-section (3) of that section. Consequently, the second clause is required to be read with sub-section (3) of section 20. On reference to the said provision, it is evident that the legislation in its wisdom has not left the date of retirement at the option of the member of the Standing Committee. Half of the members of the Standing Committee, at the end of first year, by procedure of drawing lots and at the end of succeeding years, the senior half members of the Standing Committee stand retired on the first day of the month in which the first meeting of the Corporation, as mentioned in sub-section (2) of section 20, was held. Thus, even if the first meeting of the Corporation for election of first Standing committee was held after expiry of major portion of the calendar month, that will not enable the first Standing Committee to continue to be Standing Committee exactly for a period of one year and upto the date of ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:53 ::: Writ Petition No.6897/2018 28 the same calendar month of the succeeding year on which they were elected immediately after general elections. If they are elected on the first day of the calendar month, the tenure of the members of the first Standing Committee may be exactly 365 days. But if they are elected in the general body meeting of the Corporation held on later date of the month, the life if the first Standing Committee shall stand curtailed to that extent from exact period of one year. If they are elected on the last day of the calendar month, their tenure practically would be only 11 months. By sub- section (3) of section 20, legislation has left no option to the members of the Standing Committee and they retire on the first day of the month of the succeeding year in which they were elected at the first meeting of the Corporation under section 20(2). In the matter at hands, new complexion of the Standing Committee was and is due on every 1st December. Such an interpretation is strongly supported by sub-section (5) of section 20 which casts an obligation on the Corporation to appoint fresh members in the month preceding the date of retirement specified in sub- section (3) of section 20. Thus, in the case of subject Corporation, the constitution of the Standing Committee was to change on 1st December of every succeeding year and it was the responsibility of the Corporation to elect the half members of the Standing Committee to be substituted in place of members retiring on 1st December in the month of November itself.
On reading the relevant portion of sub-section (5) of section 21, to be precise, the second clause out ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:53 ::: Writ Petition No.6897/2018 29 of the three clauses reproduced hereinabove, in an analytical manner for convenient consideration, in the light of section 21(1) and (4), as also, section 20(2), (3) and (5), the interpretation as propounded by learned Senior Counsel, Shri P.M. Shah, does not seem to be acceptable. The date of retirement of half the members of the Standing Committee in the succeeding years and starting point for computation of limitation of 30 days for election of its Chairman by the newly constituted Standing Committee is fixed by the statute to be the first day of month of succeeding years, in which the first Standing Committee, immediately after general elections was constituted.
10. Consequently in the matter at hand, the Standing Committee ought to have held a meeting for the purpose and elected its Chairman on 31st December, 2005 itself. The submission of learned Senior Counsel, Shri Shah, that if there is majority of different parties in the Corporation and in the Standing Committee (which contingency we are unable to agree, in the light of manner in which political equations change as we perceive from the newspapers), the provision may be taken benefit by the Corporation to deprive the Standing Committee of its statutory right to elect its Chairman. Firstly, we do not visualize such a possibility. Even in the present case which is extreme case of its nature, Standing Committee could have elected its Chairman on 31st December, 2005 in spite of the delay on the part of the Corporation, to elect the Standing Committee. In the fact situation of the case, we also do not find Corporation being able to take advantage of the ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:53 ::: Writ Petition No.6897/2018 30 situation because the period of 15 days during which Corporation could have elected the Chairman of the Standing Committee, has also expired and at least for this year, the Standing Committee of the subject Corporation will have to work without elected Chairman, due to default on the part of both, the Corporation, as well as, the Standing Committee, to observe the discipline laid down by the legislature so far as time limits for election of Chairman are concerned. We do not find the Standing Committee being unable to function due to such a situation. On reference to Schedule "D" which are the rules framed under section 453 of the said Act, and more particularly, on reference to Rule 3(3) as contained in Chapter IInd pertaining to the proceedings of the Corporation, Standing Committee, Transport Committee, etc., it is evident that the Standing Committee can transact its business in the absence of Chairman by choosing one of the members to be the Chairman for the occasion."
27. By placing reliance on the aforesaid judgment, of this Court, the learned counsel appearing for respondent No.6 submitted that, when the Standing Committee had failed to appoint Chairman within 30 days of retirement of 8 members of the Standing Committee, in the present case, only alternative was election of Chairman of the Standing Committee by the Corporation under Section 21(5) of the said Act. It was contended that, even in the aforesaid case of Nitin s/o Manga ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:53 ::: Writ Petition No.6897/2018 31 Shirsat Vs. State of Maharashtra & others (supra), this Court had held that the Standing Committee could not have appointed Chairman after expiry of 30 days from the date of retirement of 8 members and that, the Chairman could have been elected only by the Corporation under Section 21(5) of the said Act, within 15 days of expiry of the aforesaid period of 30 days. On this basis, it was contended that, no fault could be found with the procedure adopted by the Municipal Secretary in issuing notice on 12.6.2018 for election of Chairman of Standing Committee in special meeting dated 15.6.2018.
28. In this context, the learned Senior Counsel appearing on behalf of the petitioners correctly distinguished the facts of the present case from the facts that arose in the case of Nitin s/o Manga Shirsat Vs. State of Maharashtra & others (supra). In the said case, while 8 members of the Standing Committee stood retired on 1.12.2005, fresh 8 members in their place stood appointed on 31.12.2005. Thus, Standing Committee consisting of 16 members had come into existence in the said case when the question arose as to whether the Chairman was to be appointed by the Standing Committee under Section 21(1) of the said Act or by the Corporation under Section 21(5) of the Act.
29. But, in the present case, the Standing Committee ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:53 ::: Writ Petition No.6897/2018 32 consisting of 16 members itself had not come into existence when notice dated 12.6.2018 was issued by the Municipal Secretary for holding special meeting to elect Chairman of the Standing Committee under Section 21(5) of the said Act. Therefore, the notice dated 12.6.2018 was void and illegal. The constitution of Standing Committee consisting of 16 members did not take place at all in the present case when attempt was made to appoint its Chairman. The scheme of Sections 20 and 21 of the said Act shows that, the Standing Committee shall consist of 16 members and that there cannot be a truncated Standing Committee and further that, Chairman of the Standing Committee shall be appointed by such 16 member Standing Committee and the Corporation could appoint Chairman of the Standing Committee under Section 21(5) of the said Act, only when the Standing Committee itself failed to appoint the Chairman and period of 30 days expired in the contingencies specified in Section 21(5) of the said Act.
30. In the present case, as noted above, the mandatory requirements of Section 20 stood violated and an attempt was made to appoint Chairman of the Standing Committee by the Corporation under Section 21(5) of the said Act, when the Standing Committee itself consisting of 16 members was not constituted after retirement of its 8 members on 2.5.2018. In ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:53 ::: Writ Petition No.6897/2018 33 such a situation, the contention raised on behalf of respondent No.6 and other contesting respondents that recourse could be taken only to Section 21(5) of the said Act, is without any merit and cannot be accepted.
31. Apart from this, the petitioners have contended that, assuming for the sake of argument that, Chairman could be elected under Section 21(5) of the said Act by the Corporation, the procedure adopted while conducting the special meeting on 15.6.2018, violated mandatory requirements of the Rules of 2007. In this regard, it would be appropriate to quote the relevant Rules. They are :-
"2. Special meeting for Election of Chairman of the Standing Committee.
(1) For the purpose of holding elections to the post of Chairman of the Standing Committee, after general elections of the Corporation and whenever the post of Chairman becomes vacant for whatsoever reasons, to fill the vacancy therein, a special meeting shall be held by the Corporation.
(2) The Municipal Secretary shall, in consultation with the Divisional Commissioner of the concerned Revenue Division in which the Corporation is situated, fix a date for holding the special meeting under sub-rule (1):::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:53 ::: Writ Petition No.6897/2018 34
Provided that, the notice of such meeting shall be given to all the members of the Standing Committee, at least three clear days prior to the date of the meeting;
(3) The special meeting so called, shall not be cancelled or adjourned.
................
................
4. Presiding Authority.
The special meeting shall be presided over by the concerned Divisional Commissioner or his representative not below the rank of Additional Divisional Commissioner."
32. The aforesaid Rules show that a special meeting to be held under Section 21(5) of the said Act for electing the Chairman of the Standing Committee is to be presided over by the Divisional Commissioner or his representative not below the rank of Additional Divisional Commissioner under Rule 4 of the Rules of 2007. The notice for such meeting under Rule 2(2) of the Rules of 2007 is to be given at least three clear days prior to the date of the meeting. In the present case, the notice was issued on 12.6.2018 and the special meeting was fixed on 15.6.2018. According to the learned Senior Counsel for the petitioners, this did not amount to three clear days notice, due to ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:53 ::: Writ Petition No.6897/2018 35 which the proceedings of the meeting stood vitiated. On the other hand, learned counsel appearing for respondent No.6 submitted that, at worst, even if it was considered that notice of three clear days was not given, it was merely an irregularity, which did not prejudicially affect the proceedings of the special meeting dated 15.6.2018, as all members had been put to notice and they had indeed attended the meeting. Reliance was placed on judgment of the Hon'ble Supreme Court in K. Narasimhiah Vs. H.C. Singri Gowda & others (supra). The record of the present case shows that, there was no complaint from members of the Corporation that, they had not been put to notice and that, therefore, it appears that, lack of three clear days notice can be said to be an irregularity, not vitiating the proceedings of special meeting held on 15.6.2018.
33. But, as regards Rule 4 of the Rules of 2007, the record shows that, the special meeting held on 15.6.2018 was clearly vitiated because it was not presided over by the Divisional Commissioner or his representative not below the rank of Additional Divisional Commissioner as admittedly the meeting dated 15.6.2018 was presided over by the Mayor of the Corporation i.e. respondent No.6. Rule 4 stood specifically amended by notification dated 12.12.2008, wherein the presiding authority for such meetings changed from the Mayor to the ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:53 ::: Writ Petition No.6897/2018 36 Divisional Commissioner or his representative not below the rank of Additional Divisional Commissioner. In fact, in the affidavit-in- reply filed on behalf of respondent No.5 i.e. Municipal Commissioner of the Latur Municipal Corporation, it was conceded that the meeting dated 15.6.2018 ought to have been presided over by the Divisional Commissioner or his representative not below the rank of Additional Divisional Commissioner. It was stated in the said reply that, in meetings held from 2012 onwards, it was only the Divisional Commissioner who had presided over such meetings. Thus, even the meeting held on 15.6.2018 violated the Rules of 2007, thereby demonstrating that the election of respondent No.7 as Chairman of the Standing Committee was illegal and unsustainable. The contention raised on behalf of the respondent No.6 that the Rules of 2007 did not apply to election of Chairman of the Standing Committee under Section 21(5) of the said Act is not acceptable because, the above quoted Rules 2 and 4 specifically refer to 'special meeting' to be held for election of Chairman of the Standing Committee.
34. But, as observed hereinabove, there was flagrant violation of Section 20 of the said Act, as a result of which, there was no Standing Committee in existence consisting of 16 members for an election of the Chairman of the Standing ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:53 ::: Writ Petition No.6897/2018 37 Committee to take place. In such a situation, by applying Sections 20 and 21 of the said Act to the facts of the present case, it becomes clear that, there would be no Standing Committee of the Corporation for the rest of the tenure of the Corporation. This is because, sub-section (1) of Section 20 mandates that Standing Committee shall consist of 16 members. A truncated Standing Committee of only 8 members after retirement of 8 members on 2.5.2018, is not a Standing Committee in the eyes of law at all. In such a situation, the further step of election of Chairman of Standing Committee by the members of the Standing Committee would not arise and there would be no question of the Corporation electing Chairman of the Standing Committee.
35. A perusal of the provisions of the said Act, particularly Sections 4 (Municipal authorities charged with execution of the Act) showing Standing Committee as one of the authorities, Section 20 (constitution of Standing Committee), Section 21 (appointment of Chairman of Standing Committee), Section 67 (pertaining to functions of Municipal Authority including Standing Committee), Section 69(2) (pertaining to requirement of the Commissioner to take proper approval of the Standing Committee for major functions), Section 73(C) (mandating approval to be taken by the Commissioner from the ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:53 ::: Writ Petition No.6897/2018 38 Standing Committee for any contract on behalf of the Corporation), Section 93 (pertaining to Accounts to be kept in form prescribed by the Standing Committee) and Section 96 (providing that budget estimates to be prepared by the Standing Committee) etc. shows that, the Standing Committee has a vital role to play in the functioning of the Corporation and the discharge of various duties to be performed by the Corporation under the provisions of the said Act. The provisions of Sections 20 and 21 of the said Act are such that, 8 members i.e. one half of the total members of the Standing Committee stand retired every year and fresh members are appointed till the tenure of the elected members of the Corporation lasts. Thus, existence of Standing Committee is an intricate and vital limb of the existence and functioning of the Corporation itself.
36. But, since the very existence of the Standing Committee has been brought into jeopardy in the present case, it is necessary to pass appropriate directions to ensure that the functioning of the Corporation is not crippled. The petitioners, on the one hand and the contesting respondents on the other, have blamed each other for the legal impasse that has been created in the present case. The respondents No.6 and 7 have vehemently submitted that the mandatory requirement of Section 20 of the said Act stood violated because of deliberate inaction on the part ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:53 ::: Writ Petition No.6897/2018 39 of the erstwhile Chairman of the Standing Committee, who deliberately did not take steps for identifying the time and manner in which 8 members of the Standing Committee would retire on expiry of one year and he deliberately did not hold the meeting contemplated in sub-section (5) of Section 20 of the said Act in the month preceding the date of retirement of 8 members. On the other hand, it is contended on behalf of the petitioners that, such a situation did not justify taking recourse to Section 21(5) of the said Act, when Standing Committee consisting of 16 members was itself not in existence due to the deliberate and malafide actions of respondent No.3 and 6. A political colour was sought to be given in this blame game, with which this Court is not concerned. All that this Court is concerned is about the mandatory requirement of law as manifested in Sections 20 and 21 of the Act being followed in letter and spirit so that the democratic process envisaged therein is followed to the hilt. The facts of the present case show that it has become necessary for this Court to issue directions regarding the requirement of Sections 20 and 21 of the said Act being scrupulously followed by the concerned authorities and elected members of the Municipal Corporations in the State of Maharashtra so that a situation like one created in the present case is not repeated.
37. This Court is of the clear opinion that, the failure and ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:53 ::: Writ Petition No.6897/2018 40 deliberate misdeeds of various parties in the present case, should not lead to a situation whereby illegality of such parties are perpetuated. To permit the manner in which the Standing Committee stood constituted and the Chairman was sought to be elected in the present case, would amount to this Court granting its stamp of approval to illegalities for which the petitioners as well as the contesting respondents are responsible.
38. The question is, as to what is the approach to be adopted by this Court to ensure that ends of justice are met in the facts of the present case. In the case of Prithipal Singh & others Vs. State of Punjab & anr. reported in [(2012) 1 SCC 10], the Hon'ble Supreme Court held as follows :
"Extraordinary case
50. Extraordinary situations demand extraordinary remedies. While dealing with an unprecedented case, the Court has to innovate the law and may also pass an unconventional order keeping in mind that an extraordinary fact situation requires extraordinary measures. In B.P. Achala Anand V. S. Appi Reddy this Court observed : (SCC p. 318, para 1).
"1. Unusual fact situation posing issues for resolution is an opportunity for innovation. Law, as administered by courts, transforms into justice.
Thus, it is evident that while deciding the case, the court has to bear in mind the peculiar facts, if so exist, in a given case."::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:53 ::: Writ Petition No.6897/2018 41
39. Keeping in mind the said position of law, as enunciated by the Hon'ble Supreme Court, this Court is proceeding to deal with the extraordinary and peculiar situation that has arisen in the present case.
40. In such an extraordinary situation, this Court is of the opinion that the ends of justice will be met only by putting the clock back to the point in time when the procedure for selection of retiring members and appointment of fresh members of the Standing Committee ought to have been undertaken. Consequently, it would be in the interest of justice that the erstwhile Chairman and originally constituted Standing Committee appointed immediately pursuant to general elections of the Corporation held on 19.4.2017, is directed to take appropriate steps of first selecting 8 members of the Standing Committee to retire by draw of lots. Thereafter, 8 fresh members to be identified for appointment on the Standing Committee. This would satisfy the requirement of sub-section 6 of Section 20 of the said Act, which provides that, any member, who retires from the Standing Committee shall be eligible for reappointment. After such exercise is undertaken, the reconstituted Standing Committee shall take steps for appointing ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:53 ::: Writ Petition No.6897/2018 42 the Chairman so that the mandatory requirements of Sections 20 and 21 of the said Act are satisfied and the Standing Committee duly constituted starts functioning.
41. The aforesaid directions have become necessary in the present case as law does not contemplate a vacuum and a solution has to be found rather than allowing a problem to boil over. Otherwise, to allow the actions of the petitioners and respondents in the present case to be sustained, would result in perpetuation of illegalities, which cannot be countenanced. To prohibit such situation from recurring, specific directions are also being given hereinbelow.
42. As this Court is of the opinion that the election of respondent No.7 as Chairman of the Standing Committee and appointment of 8 members to the Standing Committee is liable to be set aside, it is necessary to give appropriate directions for ensuring smooth functioning of the Corporation, till such time as the Standing Committee is reconstituted and its Chairman is elected. In this context, Section 35A of the said Act becomes relevant, which reads as follows :
"35A. If, any committee or special committee under this Act is not constituted at any point of time, or for any ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:53 ::: Writ Petition No.6897/2018 43 reason not in a position to exercise its powers or discharge its duties under this Act, its powers shall be exercised and its duties shall be discharged by the Corporation until such committee is constituted or in a position to exercise its powers or discharge its duties."
Accordingly, this Court proposes to give appropriate directions in the present case under Section 35A of the said Act.
43. In the light of the above, the present Writ Petition is allowed and disposed of as follows :
(i) The election of respondent No.7 as Chairman of the Standing Committee of the respondent Municipal Corporation in the special meeting held on 15.6.2018, is quashed and set aside as being contrary to the provisions of the Maharashtra Municipal Corporations Act, 1949.
(ii) It is held that, the appointment of fresh 8 members on the Standing Committee in the meeting dated 14.6.2018 is illegal and hence, the same is also quashed and set aside.
(iii) The Standing Committee consisting of 16 members constituted in the meeting dated 22.5.2017 immediately after general elections of the ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:53 ::: Writ Petition No.6897/2018 44 Corporation held on 19.4.2017 and its Chairman elected on 19.6.2017 shall take steps for selecting 8 of its members for retirement from the Standing Committee. This step shall be taken by the said Standing Committee and its Chairman on 14th September 2018.
(iv) The said Standing Committee shall then hold a meeting on 18th September 2018 for appointing fresh 8 members on the Standing Committee. This would enable any member who has been selected for being retired from the Standing Committee to be eligible for reappointment.
(v) The 8 members selected for retirement shall stand retired on 19th September 2018 and the fresh 8 members shall become members of the newly constituted Standing Committee on the same day.
(vi) Thereafter, such reconstituted Standing Committee shall in its first meeting to be held in the month of September 2018, elect its Chairman. Accordingly, there would be a smooth transition from the erstwhile Standing Committee to such newly constituted Standing Committee. If for some reason the Standing Committee is unable to appoint its Chairman within 30 days of 19th September 2018, the ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:53 ::: Writ Petition No.6897/2018 45 Corporation shall appoint the Chairman in a special meeting under Section 21(5) of the said Act, to be held within 15 days from expiry of the said period of 30 days.
(vii) The reconstituted Standing Committee and its Chairman appointed in terms of directions given hereinabove shall remain in existence for the remaining part of the one year tenure of the Standing Committee.
(viii) In order to avoid recurrence of the situation that has occurred in the present case, which threatens to cripple the functioning of the Corporation as no Standing Committee would come into existence, it is necessary that all the Municipal Corporations in the State of Maharashtra and concerned authorities scrupulously follow the mandate of Sections 20 and 21 of the said Act. In this regard, it is directed that henceforth :
(a) All Municipal Corporations and their elected members shall ensure that the members due to retire under the provisions of Section 20 of the said Act are identified in advance before their date of retirement.
(b) The fresh members to be appointed in place of ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:53 ::: Writ Petition No.6897/2018 46 the retiring members are also identified in a meeting held in the month preceding the date of retirement of the retiring members, as mandated under sub-section (5) of Section 20 of the said Act.
(c) Such members of the newly constituted Standing Committee shall follow the mandate of Section 21(1) and (4) of the said Act for appointment of Chairman.
(d) If for any reason the mandate of Section 21(1) and (4) of the said Act is not followed, only then will the Corporation elect Chairman of the Standing Committee by a special meeting.
(ix) The aforesaid directions are required to be given by this Court, although the statutory provisions of Sections 20 and 21 of the said Act are very clear, as the Corporation and its elected members have chosen not to follow the mandate of the Statute. It is evident that cases have come to this Court repeatedly due to failure on the part of the elected representatives and the Corporation in following the mandate of the Statute. Such directions are required to be given only to ensure that the democratic process of election of members of the Standing ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:53 ::: Writ Petition No.6897/2018 47 Committee and its Chairman as manifested in Sections 20 and 21 of the said Act, is followed in letter and spirit.
(x) A copy of this judgment shall be sent by the
respondent No.1 State to all Divisional
Commissioners in the State of Maharashtra as also Mayors of the Municipal Corporations in the State and Secretaries of the Municipal Corporations, to ensure that the aforesaid directions given in this judgment are followed and a situation like the one created in the present case does not recur in future. Such situations not only betray the mandate of the democratic process but they result in crippling the functions of bodies like Municipal Corporations which are required to function for the betterment of the public at large. The elected representatives, in a democratic process cannot be allowed to cripple the functioning of such Corporations only because of their political interests and rivalries.
(xi) It is further directed that, till such time the newly constituted Standing Committee and its Chairman come into existence in terms of the directions given in this judgment hereinabove, the duties of the Standing Committee shall be discharged by the ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:59:53 ::: Writ Petition No.6897/2018 48 Corporation under Section 35A of the said Act.
39. Rule made absolute in above terms.
40. In view of disposal of the Writ Petition, Civil Application No.9034/2018 stands disposed of. Civil Application No.9702/2018 for intervention is allowed.
(MANISH PITALE) (PRASANNA B. VARALE)
JUDGE JUDGE
fmp/-
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