Rohidas Shankar Patil & another vs Mayra Gilbert Mendosa & others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2003 Supreme(Bom) 369

IN THE HIGH COURT OF BOMBAY
Thakker C.K., C.J. Dr. Chandrachud D.Y., J.
Rohidas Shankar Patil another .... Petitioners.
Versus
Mayra Gilbert Mendosa others.... Respondents.
Writ Petition No. 6798 of 2002 with Civil Application No. 103 of 2003, decided on 7-3/21-3-2003.
Advocates appeared :
A.S. Oka with Rajesh Datar, in W.P.No. 6798/2002, for petitioner in C.A.No. 103/2003, for respondent No. 1.
R.S. Desai with S.H. Bohra V.R. Shroff, in W.P.No. 6798/2002, for respondent Nos. 1 2 in C.A.No. 103/2003, for respondent Nos. 2 3.
R.M. Patne, A.G.P., in W.P.No. 6798/2002, for respondent No. 3 in C.A. No. 103/2003, for respondent No. 4.
N.B. Shah with T.K. Patil, in W.P.No. 6798/2002, for respondent No. 4 in C.A.No. 103/2003, for applicant.

Headnote:Bombay Provincial Municipal Corporations Act, 1949- Sections 19, 19-1A and 19-1AA - Two parties alleged to have fought the election jointly - Question arising whether in the event of one such party being in power, the other party can have the post of leader of opposition on the ground of both the parties having fought the election jointly - When the candidates of the two parties fought election against each other even in some wards, it cannot be said to be a pre-decision understanding - Political considerations cannot be scrutinized judicially - Such issued cannot be resolved by courts of law - No interference required in the matter of recognition of leader of opposition on the basis of numerical strength.

JUDGMENT - THAKKER C.K., C.J.:---This petition is filed by the petitioner for quashing and setting aside a decision of respondent No. 1 dated November 20, 2002, recognising respondent No. 4 as the Leader of Opposition in the Municipal Corporation of Mira Bhayandar.

2. The petitioner has approached this Court by invoking Article 226 of the Constitution stating therein that he is the leader of Bharatiya Janata Party (BJP) in the Municipal Corporation of the City of Mira Bhayandar, respondent No. 2 herein. Respondent No. 2 is a Corporation created and established under section 5 of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as the Act). Respondent No. 1 is Mayoress of respondent No. 2, elected under section 19 of the Act. Respondent No. 1 has recognised respondent No. 4 as the Leader of Opposition. The said decision is challenged by the petitioner being unlawful and contrary to law as the petitioner ought to have been recognised as the Leader of Opposition.

3. The case of the petitioner is that general election of respondent No. 2 Corporation was held on August 11, 2002. Various political parties participated. Indian National Congress (INC) and Nationalist Congress Party (NCP) contested the election by forming alliance i.e. aghadi. There was thus pre-election alliance between those two parties. Result was declared wherein the position of various political parties in respondent No. 2 Corporation was as under :

Sr. Nos. Name of the Party No. of Councillors

1. Nationalist Congress Party (NCP) 30

2. Indian National Congress (INC) 18

3. Bharatiya Janata Party (BJP) 15

4. Shiv Sena 4

5. Sahar Vikas Aghadi 6

6. Independents 3

4. According to the petitioner, in accordance with the provisions of the Act as amended by Maharashtra Act No. XI of 2002, elected Councillors were required to elect the Leader of the party having the greatest numerical strength as Mayor who shall be the Leader of the House. It also provides for recognition of the Leader of the Opposition who must be an elected Councillor and the Leader of the party in opposition having greatest numerical strength. Section 19 of the Act declares that the Corporation at its first meeting after general election will elect from its Councillors one of its members as Mayor (or Mayoress) and another to be Deputy Mayor (or Deputy Mayoress). Whereas section 19-1A deals with Leader of the House, section 19-1AA for Leader of Opposition.

5. Sections 19-1A and 19-1AA read thus :

"19-1A. Leader of House.---(1) An elected Councillor who is, for the time being, the Leader of the Party having the greatest numerical strength and recognised as such by the Mayor shall be the Leader of the House.

Explanation.---When there are two parties in ruling, having the same numerical strength, the Mayor shall, having regard to the status of the party, recognise the Leader of any one of such parties to be the Leader of the House.

(2) There shall be paid to the Leader of the House such honoraria and allowances and other facilities as may be provided by regulations made in this behalf by the Corporation."

"19-1AA. Leader of Opposition.---(1) An elected Councillor who is, for the time being, the Leader of the Party in opposition, having greatest numerical strength and recognised as such by the Mayor, shall be the Leader of the Opposition.

Explanation.---Where there are two or more parties in the opposition, having the same numerical strength, the Mayor shall, having regard to the status of the party, recognise the Leader of anyone of such parties as a Leader of the opposition for the purposes of this Act and such recognition shall be final and conclusive.

(2) There shall be paid to the Leader of the opposition such honoraria and allowances and other facilities as may be provided by the regulations made in this behalf by the Corporation."

6. The petitioner stated that the first respondent was elected as Mayoress of the Corporation. One Muzaffar Hussain, an elected Councillor, wa

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