Oral Judgment: [A.H. Joshi, J.]

1. Rule. Rule is made returnable forthwith. Heard finally by consent.

2. Facts can be brieflydescribed as follows:-

[a] Petitioner is one amongst the group of Councilors belonging to respondent no.5, who is a section of Respondent no.4 - Bharip Bahujan Mahasangh, Akola.

[b] Admittedly, the respondent no.3 is the Group Leader of the Political Party in Corporation – respondent no.5.

[c] It is seen that the Party Leader of the Respondent No.4 - a political party - directed the respondent no.3 by letter dated 25th February, 2008 [Annex.IV], to nominate the petitioner as a Member of Standing Committee.

[d] This letter [Annex.IV] is regarded by the petitioner to be a whip as noted therein.

[e] Respondent No.3, who is a Group Leader, has nominated himself by letter dated 26th Feb., 2008 [Annex.V] in disregard of whip [Annex.IV].

[f] Based on the nomination done through Annexure-V, the respondent no.3 has been nominated on the Standing Committee by the respondent nos. 1 and 2.

3. The petitioner has challenged Annexure-V – own nomination by Respondent No.3 in this petition and as a result, has prayed for the relief, which reads as follows:-

“(a) by an appropriate writ, order and/or direction, direct the respondent no. 1-Akola Municipal Corporation, Akola, and the respondent no.2- Divisional Commissioner, Amravati Division, Amravati, to delete the name of the respondent no.3 as a Member of the Standing Committee of the respondent no.1 – Akola Municipal Corporation, Akola, and accept the name of the petitioner as a Member of the Standing Committee of the respondent no.1-Akola Municipal Corporation, Akola, in pursuance of the communication dtd. 26/2/2008 (Annexure-VIII).”

[Quoted from page 20 of the Writ Petition paper-book].

4. Foundation of the prayer is based on petitioner’s construction of Sub-section (2) of Section 31A of the Bombay Provincial Municipal Corporations Act, 1949. Section 31A is quoted below for ready reference as follows:-

“31A Appointment by nomination on Committees to be by proportional representation –

(1) Notwithstanding anything contained in this Act or the rules or bye-laws made thereunder, in 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 subsection (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 the Leader of the House, the Leader of Opposition and the leader of each such party or group;

(3) If any question arises as regards the number of Councillors to be nominated on behalf of such party or group, the decision of the Corporation shall be final.”

Provided............

Provided further...............

[Note : Provisos to Sub-Section (2) are not quoted, as those are not relevant.]

5. Petitioner’s construction of Sub-clause (2) quoted above, is that said Section lays down that the Councillors, who are members of a party or a group, will have to elect or nominate in accordance with the whip.

6. Learned Advocate for the petitioner has further argued that:-

[a] The whip given by the party to the Respondent No.3 was, in fact, given to all members of the respondent no.4. In the result, had the respondent no.4 observed democratic process and would have called the meeting, the party whip was bound to be obeyed and the respondent no.3 was unde