JUDGMENT - MHASE S.B., J.:---Heard Mr. K.C. Sant, and Mr. P.R. Kateshwarkar, learned Counsel for petitioners in respective petitions, Mr. Goolam Wahanvati, learned Advocate General with Mr. E.P. Savant, Government Pleader and Mr. S.D. Kaldate, A.G.P., Mr. Mandlik, Mr. Soman, Mr. S.R. Barlinge and Mr. A.S. Golegaonkar, learned Counsel for respective respondents.

2. Both these writ petitions are pertaining to the provisions of section 19-IAA of the Bombay Provincial Municipal Corporations Act, 1949, and therefore, are being disposed of by common judgment. Writ Petition No. 2581 of 2002 is filed by the petitioners who are Corporators of Aurangabad Municipal Corporation elected in the elections which were held in the year 1999, belonging to Congress (I) Party. It appears that as per the practice then prevailing, the then Mayor, Mr. Karad, designated the petitioner No. 2 as a Leader of Opposition in the Municipal Corporation, Aurangabad and by the letter dated 17-5-2001 the Mayor informed that except party in power the 23 Corporators from the opposition have consented for the appointment of the petitioner No. 2 as a Leader of Opposition and accordingly the Mayor issued a letter to that effect to the Commissioner of Aurangabad Municipal Corporation. However, later on after the election of the Mayor was held in 2002, the controversy in respect of nomination and/or recognition of the Leader of Opposition started and the controversy commenced in view of the introduction of section 19-IAA of the Bombay Provincial Municipal Corporations Act, 1949, which came into force on 8-1-2002, as per provisions of this section, the Congress (I) Party claims that their representative in the House shall be recognised as a Leader of Opposition by the Mayor. As against this, it is the contention of the Mayor that the 22 Corporators from the opposition, by majority, have consented for recognising the respondent No. 3 as a Leader of Opposition, and therefore, he shall be recognised as a Leader of Opposition. The respondent No. 3 is elected as a Corporator of the Municipal Corporation, Aurangabad in the year 1999 as an independent candidate. Accordingly the Mayor has issued a letter dated 4-7-2002 to the Commissioner. While issuing the said letter, the Mayor has relied on the provisions of section 19-IAA of the Bombay Provincial Municipal Corporations Act, 1949. This letter is challenged by the petitioners by filing this writ petition seeking an interpretation of the provisions of section 19-IAA of the Act.

3. The second writ petition i.e. Writ Petition No. 3481 of 2002 has been filed by the petitioners who are elected Corporators of Aurangabad Municipal Corporation belonging to Republican Party of India. By this petition, the petitioners have challenged the validity of section 19-IAA and claimed that the said section is constitutionally invalid, and prayed that the same be struck down.

4. Before we proceed to analyse the respective challenges raised by the petitioners, it is necessary to note the partywise position of the Corporators in the Aurangabad Municipal Corporation, which is as under :

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(i) Shivsena 19

(ii) Bharatiya Janata Party 17

(iii) Indian National Congress (I) 12

(iv) Nationalist Congress Party 04

(v) RPI (Ambedkar Group) 03

(vi) RPI (Gade Group) 03

(vii) Muslim League 01

(viii) Communist Party 01

(ix) Samajwadi Party 01

(x) Independent 22

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Total 83

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The relevant provision which was introduced in the Bombay Provincial Municipal Corporations Act, 1949 is as follows :-

"19-IAA

(1) An elected Councillor who is, for the time being, the leader of the party having greatest numerical strength and recognised as such by the Mayor, shall be the Leader of Opposition.

Explanation.—Where th

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