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IN THE HIGH COURT OF BOMBAY
Sunil s/o. Ramdas Kotkar
Versus
State of Maharashtra
Decided on : March 23, 2005
Bombay Provincial Municipal Corporations Act, 1949 - Section 19 - Word "party". - Word "party" used in Section 19 of Act means "municipal party". - Considering the provisions contained in the Disqualification Act, the word ``party’’ appearing in Section 19 of the Act, means ``municipal party’’ the political party in relation to a Councillor or a member means a political party to which he/she belongs for the purpose of sub-section (6) of Section 3 of the Disqualification Act.
Bombay Provincial Municipal Corporations Act, 1949 - Section 19 - Election of Mayor. - A Mayor or Deputy Mayor is required to be elected by all corporators by election.
Bombay Provincial Municipal Corporations Act, 1949 - Section 19(IA) - Term "leader of house". - An elected Councillor having greatest numerical strength, recognised as leader of party by Mayor shall be Leader of House.
Bombay Provincial Municipal Corporations Act, 1949 - Section 19(IAA) - Leader of opposition. - An elected Councillor, recognised as leader of party in opposition by Mayor, shall be leader of opposition. - What is contemplated by Section 19(IAA) of the Bombay Provincial Municipal Corporations Act is that the Councillor must be a Leader of a party and/or leader of party must necessarily be in respect of Party in House. The duty cast upon the Mayor to recognize the Councillor as Leader of Opposition. While doing so, the Mayor has to satisfy himself about the following aspects : (i) He must be an elected Corporator for the time being; (ii) He should be a Leader of the party in opposition; (iii) The said party is opposition should have greatest numerical strength; and; (iv) must be recognized as such by the Mayor. Therefore, the role of the Mayor to recognize a Corporator as Leader of Opposition is to be judged from this aspect.
Bombay Provincial Municipal Corporations Act, 1949 - Section 19(IAA) - Power of Mayor. - Recognition as leader of opposition endorsed or given by Mayor after considering relevant circumstance brought on record, is final and conclusive.
Bombay Provincial Municipal Corporations Act, 1949 - Section 19(IAA) - Constitution of India, Article 226 - Recognition of Councillor as leader of opposition. - Court, while reviewing action of Mayor, recognising a Councillor as leader of opposition, is concerned with decision making process and not merit of decision. - The scope of judicial review under Article 226 of the Constitution of India to judge the action of Mayor, Court is concerned with reviewing not the merit of the decision in support of which the petition for judicial review is made, but decision making process itself. Thus, the jurisdiction of this Court is confined to : (i) Whether Mayor exceeded his power? (ii) has committed an error or law; (iii) reached a decision which no reasonable person would have reached; (iv) Whether he has abused his powers. Applying these parameters to the case, the Mayor has not acted beyond his powers conferred on him by Section 19 (IAA) in recognizing respondent No. 4 as leader of opposition.
Evidence Act, 1872 - Section 81 - Statement of fact in Newspaper - Merely hearsay - Presumption of its genuineness - Newspaper cutting filed alongwith petitioner - Not helpful to petitioner to prove fact that there was a prepoll alliance/Aghadi/Yuti between Shiv Sena and BJP - Statement in petitioner cannot be accepted as proved - It cannot be read in evidence. - It may be true that there is no specific denial to the aspects stated in the petitioner but what is important to be noted is that all the statement so made regarding Yuti or Aghadi by Shiv Sena and BJP are based on the newspaper reports and other printed material annexed to the petition as such even if there is no denial by the contesting respondent the statements or averments made in the petitioner cannot be accepted as proved or established facts. Hence applying the law laid done by the Apex Court to which Court has referred to above unless there is affidavit to support the news items so published by the maker of the statement appeared in the newspaper or other printed material this Court cannot take any notice of those document not it can be read in evidence as such.
Evidence Act, 1872 - Section 81 - Constitution of India, Articles 226 and 227 - Filing petitions by annexing the newspaper cuttings - Newspaper report is hearsay evidence - Cannot be relied on unless proved by evidence - Practice of filing petitions with newspaper cutting deprecated - On the basis of newspaper cutting which were filed alone with the petition, it cannot be proved that there was a pre-poll alliance/Aghadi/Yuti between Shiv Sena and BJP. AIR 1988 SC 1274; 1993 Vol 3 SCC 151 and (1999) 7 SCC 435 - Referred.
High Court Appellate Side Rules - Part II, Chapter III, Rule 10 - Verification of petition. - Unless source of information from which statements are made is disclosed, statement made in petition cannot be accepted.
Maharashtra Local Authorities Members’ Disqualification Act, 1987 - Section 2(a) - Aghadi. - One of component of ’Aghadi’ cannot be considered to be opposition party.
Maharashtra Local Authorities Members’ Disqualification Act, 1987 - Section 2(a) - "Aghadi". - Question whether there was a pre-poll alliance Yuti/Aghadi, has to be proved on basis of legal evidence. - There was nothing on record to indicate that there was a pre-poll alliance Aghadi/Yuti between BJP and Shivsena. Merely because those two political parties have not sponsored the candidates against each other will not lead to an inference that there was a pre-poll alliance Aghadi/Yuti. It is for those political parties to sponsor the candidates in a particular ward which they feel that the voters in the said ward may vote in favour of a particular party or a candidate. Only because all the Corporators belonging to both the parties have not contested the election against each other in all wards, is not at all a decisive factor. Unless there is positive and legal evidence on record Court cannot take any judicial notice nor consider the facts stated in the newspapers items or newspaper clippings which are filed by the petitioner in order to substantiate their contention that there was a pre-poll alliance Aghadi/Yuti.
A. B. NAIK, J.
( 1 ) HEARD respective counsel.
( 2 ) BY this order, we propose to dispose of this Writ Petition finally, at the stage of motion hearing, in view of the order passed by this Court on 3rd November, 2004 whereby, our Brothers : Zoting and deshpande, JJ, have passed the following order: "parties are put on notice that the matter will be decided at the admission stage after vacation. " in view of this, we heard this Writ Petition on 28th February, 2005 at length, which remained part heard. On ! st March, 2005 we completed the hearing and the matter was posted for judgment.
( 3 ) BY this Petition, as many as nine petitioners are seeking the following reliefs : " (B) Issue a writ, order or direction in the nature of writ of certiorari for quashing and setting aside the impugned order dated 19-5-2004 passed by the respondent no. 3 appointing the respondent no. 4 as a Leader of opposition in Respondent no. 2 corporation and for that purpose issue necessary orders. (C) Issue writ of mandamus or direction directing the Respondent No. 3 - Mayor to grant recognition to the proposal dated 24-02-2004 for the post of leader of Opposition submitted by indian National Congress (I) party to its group leader Shri. Bhanudas Eknath kotkar as a Leader of Opposition in respondent no. 2 Council and for that purpose issue necessary orders. (D) Hold and declare that Shri. Bhanudas eknath Kotkar elected councillor from ward No. 8-B from Indian National congress party who is elected as a group leader by the Indian National congress (I) party is a Leader of opposition in Respondent no. 2 corporation and allow him to perform the duties and to avail the statutory benefits u/s 19-I AA (2) of Bombay provincial Municipal Corporations Act, 1949. " (Rest of the prayers for interim reliefs, need not be mentioned.)
( 4 ) THE petitioners are the corporation of Ahmednagar Municipal corporation elected in general election held on 14-12-2003. The respondent no. 2 ahmednagar Municipal Corporation (hereinafter referred to as the "said corporation") created and established under section 5 of the Bombay Provincial Municipal corporations Act, 1949 (hereinafter referred to as "the Act" ). The respondent no. 3 is the mayor of the said Corporation, duly elected as per the provisions of Section 19 of the Act. The respondent no. 3, in exercise of powers conferred on him by Section 19-AA of the act, nominated the respondent no. 4 as a leader of Opposition in the House and this action of respondent no. 3, is impugned in this petition filed under Article 226 of the constitution of India, 1950 (for short "the constitution") seeking the above-mentioned reliefs.
( 5 ) BEFORE proceeding to advert to several contentions advanced before us by the Counsel appearing for the respective parties, we may note down some undisputed facts. On 17th September, 2003, the State election Commission declared the election programme of the said Corporation, to elect 65 Corporators. On 14-12-2003 the voting took place and on 17-12-2003 the results were declared. It is stated across the Bar that the elections were contested by the candidates sponsored by various political parties, besides some independent candidates. In the said election, 18 candidates belonging to Shiv Sena, 15 candidates belonging to Bhartiya Janata party (for short "bjp"), 15 candidates belonging to Indian National Congress (I) 5 candidates from Nationalist Party, 10 independent candidates, 2 candidates from aghadi Front (Seva) panel were declared elected. After the declaration of the election results, the first meeting of the Corporation was held on 30-12-2003 to elect the Mayor and Deputy Mayor, respectively. In the said meeting (election) the respondent no. 3 got elected as Mayor, by securing 38 votes and one Dnyaneshwar Sadashiv Khandre, came to be elected as Deputy Mayor, who too secured 38 votes. It is stated that the respondent no. 3 who was elected as Mayor belonged to Shiv Sena and Dnyaneshwar khandre, De
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