R.C. CHAVAN, J.:-

The petitioner seeks a Writ of Mandamus for quashing and setting aside the Maharashtra Municipal Corporations (Qualifications and Appointment of Nominated Councillors) Rules, 2007 (hereinafter referred to as "the Rules"), notified on 21st February, 2007 as well as amended Rule 5 of the Rules, notified on 21st April, 2007 as ultra-vires the provisions of City of Nagpur Corporation Act, 1948 (hereinafter referred to as "the NMC Act").

2. The elections to the Municipal Corporation, Nagpur were held in the year 2007. A meeting of the Corporation was scheduled on 5th March, 2007. The petitioner was desirous of getting co-opted as a Member of the Nagpur Municipal Corporation under section 9(1)(b) of the N.M.C. Act. Under a programme, which was finalized by the Corporation, nomination forms were to be submitted on 27th February, 2007. However, upon promulgation of rules, by notification dated 21st February, 2007, the entire programme had to be scrapped. Under Rule 5 of the Rules Mayor was authorised to nominate councillors in proportion to the relative strength of recognised parties or groups, after consulting Leader of the House, Leader of Opposition and leader of each of such party or group. The petitioner challenged these rules since they clothed the Mayor with the powers of Corporation to nominate councillors under section 9(1)(b) of the NMC Act. The petitioner came up for hearing before a Bench of this Court on 2nd March, 2007. After hearing the parties, the effect of these rules was stayed, pending hearing of the petition.

3. After this order staying effect of the Rules, the Government of Maharashtra issued a fresh notification on 21st April, 2007 substituting Rule 5 in the Rules notified on 21st February, 2007 by a new Rule 5 inter alia replacing the word "Mayor" by "Commissioner" and providing for nominations by the Commissioner to be placed before the Corporation for considering the nominations. The amended rule also provided that Corporation could for the reasons to be recorded decide not to accept the recommendation of the Commissioner with respect to a person so recommended. In view of this new notification dated 21st April, 2007, the petitioner sought leave to amend the petition, and, by adding paragraphs l0-A to 10-D and prayer clause (i-a), the petitioner challenged this notification as well, on the ground that the notification curtails the powers of the Corporation to democratically select the councillors to be nominated. It was also contended that the Commissioner, who is removable by resolution of 3/4th members of the Corporation, virtually can dictate the Corporation as to who were to be the nominated councillors and make the Corporation accountable to him by requiring the Corporation to furnish him with reasons, should the Corporation refuse to accept nominations sent by him.

4. Respondent No. l/State, has filed an affidavit in reply, justifying the, amendments carried out in the rules.

5. We have heard learned Advocate Dr. B. G. Kulkarni for the petitioner, learned Additional Government Pleader Smt. Bharti Dangre for respondent No.l/State, learned Advocate Shri Prabhakar Marpakwar for the Election Commissioner and learned Advocate Shri S. K. Mishra for respondents No.3 and 4 Nagpur Municipal Corporation and its Mayor.

6. Notification dated 21st February, 2007 prescribing nomination by Mayor was obviously untenable since the rule travelled beyond the section providing for nomination of the councillors by the Corporation. For the sake of ready reference, section 9(1) of the City of Nagpur Corporation Act is reproduced as under:

"9(1) The Corporation shall consist of :

(a) One hundred thirty-six Councillors directly elected at ward elections.

(b) Five nominated Councillors having special knowledge or experience in Municipal Administration, nominated by the Corporation in the prescribed manner.

(2) ... ... ..."

7. The nomination was required to be made by the Corporation and not the Mayor, in the pr