2010 Supreme(Bom) 504

High Court of Judicature at Bombay
THE HONOURABLE MR. JUSTICE F.I. REBELLO, THE HONOURABLE MR. JUSTICE D.G. KARNIK & THE HONOURABLE MR. JUSTICE J.H. BHATIA
Shri. Jayram Tolaji Shinde & Others
Versus
The Secretary, Urban Development Department & Others
WRIT PETITION NO. 5287 OF 2008 ALONGWITH WRIT PETITION NO. 5857 OF 2008 ALONGWITH WRIT PETITION NO. 7935 OF 2008 ALONGWITH WRIT PETITON NO. 8094 OF 2008 ALONGWITH WRIT PETITON NO. 2675 OF 2009 ALONGWITH WRIT PETITION NO. 4964 OF 2009
Decided on : 01-04-2010

Headnote:Bombay Provincial Municipal Corporation Act, 1949 - Section 31-A(2) - Representation of Standing Committee - Petitioner contended, no bar under Section 31-A(2) of Act in political party nominating persons not its member - Held - Nomination of members in proportion to strength of such parties, relevant - A recognized political party or group, while nominating members may also propose to nominate any independent or member of any political party or group as long as by such nomination - Corporation can only nominate members to Standing Committee - View taken in 2007 (4) Bom CR 144 represents correct view - Deserves to be accepted - Reference answered in terms of majority view. - Now proceed to answer question Nos. 4 and 5. A proviso, as is well known may serve different purposes qualifying or excepting certain provision from the main enactment.

       It may entirely charge the very concept or the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable.

       It may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself, and it may be used merely to act as optional addendum to the enactment with the sole object of explaining the real intendment of the statutory provision.

        [See S. Sundaram Pillai v. V.R. Pattabiraman, 1985 DGLS (Soft) 22 : (1985) 1 SCC 591].

       

       The first proviso as earlier construed confers powers on the Corporation to nominate members from parties or group not already represented which will also include independents. If this is considered then after the parties, group, fronts oraghadies get their representation based on the quotient the members belonging to recognized party or group or Aghadi or front or independents not already represented and irrespective of the fact whether they have the necessary quotient, it is open to the Corporation to nominate from such members. In this exercise there is no consultation. Such a situation will only arise in the event of a vacancy or vacancies after the registered parties, fronts or groups nominate their members. The question then is how are such vacant seats to be filled in. As rightly pointed out by Mr. Dhakephalkar, if after getting representation based on their relative strength in the Corporation, if the balance seats are also to be filed in from the same parties already represented that would defeat the very object of the sub section itself. In this manner a party or group or aghadi can corner the balance seats even if they are already represented based on their relative strength in the Corporation to the exclusion of smaller groups or independents. In the interpretation now given though they cannot nominate their own member they however will still have a say in nomination but that would be nominating from independents or parties or aghadi not already represented. To that extent, in our opinion, the view taken in Gita’s case namely that the balance seats can be filled in by nomination from amongst the members groups or fronts or independents not already represented will have to be accepted. The expression "such" in the first proviso attains importance. If this was not the intention of the legislature then the expression "such" would not have been used. In the absence of the expression "such" the seats could have been filled in from any of the parties or groups, fronts or aghadies including those already represented. By use of the expression "such" which is also there in sub-section (2) the legislative intent seems to mean that once parties are represented based on their relative strength then the remainder of the vacant seats be filled from amongst those who are not represented. The vacancies in such situation do arise, because though all such groups or independents together may have the necessary quotient, yet individually they can not get representation because the independents party, group, front or aghadi do not by themselves have the necessary quotient. The vacancy arises because of such a situation in our opinion in that context we are in agreement with the view taken in Gita ’s case. Once there is power in the House to nominate any Councilor, it is because the Legislature has contemplated such a situation. The proviso in the instant case considering the law declared in Sunderam Pillai (supra ) becomes an integral part of the sub section itself. So read the proviso confer power on the corporation to make nomination from parties or groups, fronts or aghadies not already represented and to the extent give a vested right to such other members to be considered for nomination Question No. 4 answered accordingly.

       Considering the discussions apart from recognized or registered parties, or groups or aghadies or fronts, nominations can also be made from members who may be independent or others whether belong to recognised or registered party, group or aghadi or not but not already represented. Question No. 5 answered accordingly :

       Considering the above discussions the questions formulated are answered in the following terms :

       

       

       COLUMNS(2), DIMENSION(IN), COLWIDTHS(1.9150,E1), HGUTTER(.0555), VGUTTER(.0555), HGRID(Z_SINGLE), VGRID(Z_SINGLE), KEEP(OFF), L1(R0C0..R0C2), L1(R6C0..R6C2)

       TABLE TEXT, TABLE TEXT

       (1) Whether in the light of Section 31-A(2) of the Bombay Provincial Municipal Corporation Act,, a party which is entitled to a quota can nominate to the committee a member who does not belong to it?’’, Affirmative

       (2) Whether the procedure laid down in para 6 of the judgment in the case of Vasant Nivrutti Gite and another v. The Municipal Corporation of City of Nashik and others. (Writ petition No. 2564 of 2007 decided on 30.4.2007) (supra) for determining the partywise representation on the Standing Committee is in keeping with the scheme of sub-section (2) of Section 31-A of the Act?, The view taken in Vasant Gite ’s case as now explained represents the correct.

       (3) Whether the words in proportion to the strength of with parties or groups in the Corporation contemplate inclusion of the number of the independent Councillors or Councillors/members not belonging to any recognised party or registered party or group or front/Aghad?, In view of the language in proportion to the strength of such parties or group in Corporation includes independent councillors.

       (4) Whether the first proviso below sub-section (2) of Section 31-A of the Act is only an enabling/discretionary provision and it does not create any vested right of appointment by nomination in favour of any Councilor/ members not belonging to any recognized parties or registered parties or groups or fronts/aghadis?, First proviso does give vested right to such other members belonging to parties groups,, fronts or aghadies and independents not already, represented to be nominated.

       (5) Whether the appointment by nomination on the Standard Committee is require to be made only from amongst the Councillors/members from/representing the recognized parties or registered parties or groups or fronts/aghadis?, In view of the answers to the other questions,, in our opinion after representation is given to registered parties or groups or aghadies or fronts the remaining seats could be filled by nomination from other recognised parties or registered parties or fronts or aghadies or independents not already represented. The reference is accordingly answered in terms of the majority view.