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Bombay High Court
A.M. KHANWILKAR, R.Y. GANOO, JJ.
Kiran Ramchandra Suryavanshi
Vs
The State of Maharashtra & Ors.
Decided on : 3/1/2013
Appointment of persons as members on Standing Committee of Corporation, suggested by other member of Aghadi, instead of recommendations made by petitioner, group leader of Aghadi being in contradiction with Section 31-A of Act, liable to be rejected. - In the present petition, Court is not called upon to pronounce on the correctness of the decision of removing the petitioner from the post of group leader of Vikas Maha Aghadi of Sangli, Miraj and Kupwad Municipal w.e.f. 25.9.2012. Moreover, it is not in dispute that the petitioner continues to be the Member of the Aghadi and is an elected sitting Councillor of the Corporation. Admittedly, the action impugned by the petitioner has been taken whilst the petitioner was the group leader of the Aghadi. No doubt, by the time the writ petition was filed in the Court, the petitioner allegedly came to be removed from the post of group leader of the Aghadi. However, the challenge is to the process of nomination of the Councillors on the Standing Committee, which is stated to be contrary to the mandate of Section 31-A of the Act. The fact that the petitioner has ceased to be group leader of the Aghadi is of no consequence. It cannot be gainsaid that even ordinary resident and voter of the Corporation is competent to approach this Court to challenge the procedure and the manner of nomination of Councillors on the Standing Committee of the Corporation, being contrary to the mandate of law. Accordingly, even this preliminary objection deserves to be rejected.
Bombay Provincial Municipal Corporation Act, 1949 - Sections 31-A and 451 - Election of members on Standing Committee of Corporation.
Where election of members was challenged when petitioner was group leader of Aghadi therefore preliminary objection that petitioner has no locus to file petition liable to be rejected. - The petitioner has approached the Court, by way of this writ petition, filed on 5.10.2012, complaining that no decision is being taken by the Appropriate Authority in the proceedings under Section 451 of the Act and that in the meantime, the persons, who, according to the petitioner, have been illegally appointed on the Standing Committee of the Corporation, are allowed to participate in the decision making process even on policy matters of the Corporation, in their capacity as nominated members the concerned Committee of the Corporation. The decisions taken by them may entail in financial implications for the Corporation. Further, merely because remedy under Section 451 of the Act is also available, would not denude the petitioner from invoking remedy under Article 226 of the Constitution of India for issuance of appropriate writ against the concerned Authorities and to quash and set aside the action of the said Authorities, which, it is stated, is without authority of law and also infringes the fundamental rights guaranteed including under Article 14 of the Constitution of India. Therefore, the preliminary objection raised by respondent No. 3 need not detain us from examining the issues raised on merits.
Bombay Provincial Municipal Corporation Act, 1949 - Sections 31-A and 451 - Constitution of India, Articles 226 and 227 - Writ petition challenging election of members of corporation.
Since merely because remedy under Section 451 of Act is available, it would not denude petitioner from invoking remedy under Article 226 of Constitution hence preliminary objection as to maintainability of petition is liable to be rejected. - This writ petition, under Article 226 of the Constitution of India, is filed for issuance of writ of certiorari to quash and set aside the resolution passed by respondent No. 2 - Corporation on 31.8.2012 and the appointments of respondent Nos. 4 to 12 herein as elected members of the Standing Committee of the respondent No. 2 Corporation and/or to issue a writ of mandamus directing the respondent Nos. 2 and 3 to withdraw the resolution dated 31.8.2012 forthwith.
A.M. KHANWILKAR, J.:
1. Heard Counsel for the parties.
2. Rule. Rule made returnable forthwith, by consent. Counsel appearing for the respective respondents waive service for the concerned respondents. By consent, taken up for final disposal.
3. This Writ Petition, under Article 226 of the Constitution of India, is filed for issuance of Writ of Certiorari to quash and set aside the Resolution passed by Respondent No.2 Corporation on 31.8.2012 and the appointments of Respondent Nos. 4 to 12 herein as elected members of the Standing Committee of the Respondent No.2 Corporation and/or to issue a Writ of Mandamus directing the Respondent Nos.2 and 3 to withdraw the Resolution dated 31.8.2012 forthwith.
4. These reliefs are claimed on the assertion that the election of Respondent Nos.4 to 12, as members of the Standing Committee of the Respondent No.2 Corporation, was in gross violation of the procedure stipulated in section 31A of the Maharashtra Provincial Municipal Corporations Act, 1949 and the guidelines issued by the State of Maharashtra vide notification dated 6.7.2010. The official translation of the said Government circular dated 6.7.2010, is as under: Procedure to be followed while nominating members on various committees including standing Committee of the Municipal Corporation. Government of Maharashtra Urban Development Department, Government Circular No. Miscellaneous 2010/ M. No.85/UD 32, Mantralaya, Mumbai 400032 Date 6th July, 2010. Preface After General elections of the Municipal Corporations or thereafter, when a member of any Committee of the Municipal Corporation retires, taking in to account the comparative strength of the recognised parties or registered parties or groups in such Committee of the Municipal Corporation in the Municipal Corporation and after having consultations with the Leader of the House, the Leader of opposition and leader of such each party or group, as far as possible, Municipal members are nominated in the proportion of the strength of such parties or Groups in the Municipal Corporation. Accordingly, for appointing by nomination the members on Standing Committee and various other Committees of the Municipal Corporation on the basis of comparative strength of each registered party or group, the names of the members to be nominated on the Committees are informed to the Mayor by the Party Leader of the Concerned Party or Group leader of the Group and on that basis, the members are nominated on the Committees. 2) In view of making more transparent the procedure of sending names for nominating members on the standing Committee and other Committees of the Municipal Corporation in this fashion, the issue of giving guidelines thereon was under consideration of the Government. Circular As regards the procedure to be followed while nominating members on the Standing Committee or other Committees of the Municipal Corporation, guidelines are issued thereon as follows :
1) While sending names of the Municipal Members for appointing them by nomination on the Standing Committee or other Committees through (by) Leader of opposition or Group Leader on the basis of Comparative strength, the same should be put in a closed envelope and handed over to the Mayor at the time of the meeting. If the said names are to be handed over to the Mayor in a closed envelope before the day of the meeting, then a copy of the said letter in a closed envelope only should be given to the Commissioner as well.
2) In order to satisfy the persons present that at the time of the meeting, the said closed envelopes are in the original state itself and that the same have not been opened earlier, the closed envelopes should be shown to the meeting.
3) The said closed envelopes should be placed on the table and the Mayor should open the same serially in front of all and after every envelope is opened, the names therein should be got read over in the meeting by any other person present for the meeting.
4) As regards the names
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