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Bombay High Court
F. I. REBELLO and R. M. SAVANT
VASANT NIVRUTTI GITE -Appeallant
Versus
MUNICIPAL CORPORATION OF CITY OF NASHIK -RESPONDENTS
WRIT PETITION 2622 Of 2007
Decided On: 04/30/2007
The proper construction of sub-section (2) and the two provisos will be to first nominate members to the standing committee from amongst the registered parties, recognised parties or Aghadi or front which have the necessary quotient based on the relative strength of their membership of the general assembly. While so nominating it will be open by virtue of the proviso a political party as long as the provision of the Maharashtra Local Authorities Members Disqualification Act, 1976 are not attracted to nominate an elected Councillor not belonging to the recognised or registered or group to the standing committee as set out in sub-section (2). In such situation as an illustration, Shivsena which was entitled to three seats could have nominated the petitioner in Writ Petition No. 2622 of 2007, Shri Sharad Koshire an independent Councillors as long as the Shiv Sena did not exceed its quota of seats based on their relative strength. A reading of the proviso by itself would make it clear that the nomination can only be in respect of the parties or groups not already represented. In other words any other recognised registered political party or Aghadi or front as independent Councillors. If the argument of the petitioners is to be accepted then it can only be from the registered and recognised political party that nomination can be made. That would defeat the very purpose of proviso which is in the nature of an exception to sub-section (2). By virtue of proviso the Councillor to be elected can either be an independent or a member of any other registered or recognised political party not already represented. This no doubt would give advantage to the ruling group in the corporation to fill in the seats from those who support them. This is a part of our democratic process and as such cannot be faulted with. It is therefore not possible to accept the construction as urged on behalf of the petitioners to construe the provisos as they have sought to contend. The language of the proviso is clear. It is only elected Councillors if a party not already represented on the standing committee and belonging to a recognised or registered political party or group independent Councillors who can be nominated.
Considering this construction the issue may now be answered. It is open and Sharad Koshire as either they were independent or belonging to parties which were not represented. Then the resolution to that extent could not have been faulted with. However, considering the quotient of the relative strength of the political parties. NCP having 17 seats divided by the quotient would be entitled to 252 seats in other words 3 seats whereas they were allowed to nominate only for two seats. To that extent, the suspension of the resolution by the State Government which is subject-matter of challenge in Petition No. 2622 of 2007 cannot be really faulted. As the resolution is stayed the standing committee could not function.
In the light of discussion all these petitions are disposed of by issuing the following directions :
The action of the State Government suspending the execution of the resolution dated 10.4.2007 is upheld.
In view of the fact that the resolution is upheld the Corporation of City of Nashik is directed to commence the process of nomination to the standing committee afresh/de novo, in the light of what have been stated above.
Rule made absolute accordingly. In the circumstances of the case, there shall be no order as to costs.
( 1 ) RULE in all the Petitions. By consent of the parties, heard forthwith.
( 2 ) THE challenge in this Petition is to the decision taken by the Presiding Officer dated 7. 4. 2007 nominating Sudhakar Badgujar, Mushir sayyad, Sharad Kisanrao Koshire as the members of the Standing Committee. The Petitioner No. 1 belongs to Maharashtra Nav Nirman Sena (MNS) whereas petitioner No. 2 belongs to Nationalist Congress party (NCP ). The Petitioners contend that the elected candidates of NCP are 17 and considering the total number of councillors which is 108, the second respondents ought to have nominated three members belonging to NCP. On the contrary only two members have been nominated. Thus the second respondents ignored the relative strength of the parties as was required by the provisions of Section 31a of the maharashtra Municipal Corporations (Amendment)Ordinance, 2007 which hereinafter shall be referred to as "ordinance". The Petitioners in Writ Petition No. 2587 of 2007 are elected councillors of the Corporation. It is their case that the Respondents Sudhakar Badgujar (Independent), Smt. Shinde Jyoti ()BJP) and Shri. Sayyad Mushir (SP), have been illegally appointed as members of the Standing Committee in contravention of the amended Section 31a of the B. P. M. C. Act, 1949. Writ Petition No. 2622 of 2007 is filed by the petitioners who are elected representatives of nashik Municipal Corporation. The Petitioner was elected as independent candidate. The Petitioner was appointed on the standing committee by the Shiv Sena a recognised political party against their quota of seats. It is Petitioners grievance that the letters/order dated 10. 04. 2007 addressed to the deputy Secretary, Urban Development, Maharashtra state, is without authority of law and consequently liable to be set aside. By that order, the government has stayed the Resolution No. 1 of nashik Municipal Corporation, in its general body meeting held on 7. 11. 2007.
( 3 ) FROM the pleadings of the parties, the reliefs sought for in the Petition are basically (a)challenging nomination of the respective councillors on the ground that nomination was contrary to section 31a of the Ordinance and (b) the Resolution of the State Government suspending the resolution no. 1, passed by the Municipal Corporation of the city of Nashik in its general body meeting held on 7. 4. 2007 as being null and void. It may be mentioned that the general body of the municipal Corporation of City of Nashik has 108 members on its general body. The Corporation has various committees of which, one is the standing committee having 16 members.
( 4 ) THE Governor of Maharashtra promulgated the maharashtra Ordinance No. 2/07 known as Maharashtra municipal Corporations ( Amendment) Ordinance, 2007. The relevant portion of Section 6 of the Ordinance by which Section 31a has been inserted in B. P. M. C. Act, 1949, reads as under :
"6. After Section 31 of the Bombay provincial Municipal Corporations Act, 1949, the following section shall be inserted,namely :
"31a. (1) Notwithstanding anything contained in this Act or the rules or bye-laws made thereunder, i 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 Councillors 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 consulting t
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