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2016 Supreme(Bom) 353
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S. C. DHARMADHIKARI, K. R. SHRIRAM And B. P. COLABAWALLA, JJ.
Shri Anil (Vidyarthi) Chanderlal Ailani – Appellant
Versus
State of Maharashtra Represented by the Principal Secretary, Government of Maharashtra, Ministry of Urban Development – Respondent
WRIT PETITIOIN NO. 11278 OF 2012
Decided on : 11.03.2016
Mr. J. M. Puranik for the Petitioner in WP/11278/2012.
Mr. S. M. Gorwadkar – Senior Advocate with Ms. Neeta Karnik, Mr. Sujay Gangal, Mr. Gurudas Gorwadkar, Mr. Mankiral Singh and Mr. Kuldip T. Pawar for the Petitioner in WP/1016/2013.
Mr. A. B. Vagyani – Government Pleader with Mr. Vishal B. Thadani – AGP and Ms. Tintina Hazarika for Respondent No. 1 in both the Petitions.
Mr. Vijay Patil for Respondent No. 2 in WP/11278/2012.
Mr. Jaiwant S. Chandnani for Respondent No. 4 in WP/11278/2012.
Mr. A. A. Kumbhakoni – Senior Advocate i/b. Mr. N. R. Bubna with Mr. Shardul Singh for Respondent Nos. 5 to 7 in WP/11278/2012.
Mr. N. R. Bubna with Ms. Pooja Singh Malik for Respondent Nos. 2 and 3 in WP/1016/2013.
Ms. Shriya Jadhav i/b. Mr. Sachindra B. Shetye for Respondent No. 4 in WP/1016/2013.
Mr. Amol P. Mhatre for Respondent Nos. 13 to 16 in WP/1016/2013.
Important Point – Remedy of election dispute under Section 16 of MMC Act or Section 21 of Municipal Councils Act is available to a voter entitled to vote in general Ward election to dispute or question nomination of nominated Councillor.
Headnote:Maharashtra Municipal Council, Nagar Panchayat and Industrial Township Act, 1965 – Sections 16 and 21 – Remedy of election dispute under Section 16 of MMC Act or Section 21 of Municipal Councils Act is available to a voter entitled to vote in general Ward election to dispute or question nomination of nominated Councillor – Availability of this remedy to a candidate at said election would depend upon language of two provisions and the difference therein.
Result – Reference answered.
S. C. Dharmadhikari, J.
1. This Full Bench has been constituted to answer the following question:
“Whether a remedy of election dispute under Section 16 of the said Act or Section 21 of the said Act of 1965 is available to a voter who is entitled to vote in General Ward Elections for challenging the election/nomination of a nominated Councillor?”
2. Some facts necessary for the purpose of a decision on the question and the backdrop of the reference be noted now.
3. The Petitioner in Writ Petition No. 11278 of 2012 had been an elected Councillor of the Ulhasnagar Municipal Corporation and completed his tenure of five years from 2007 to 2012. He claims that he is eligible as well as qualified for being nominated as a Councillor, in terms of the Maharashtra Municipal Corporation (Qualifications and Appointment of Nominated Councillors) Rules, 2012. Apart from impleading the State of Maharashtra, the Corporation, Mayor/Presiding Officer, the Petitioner therein has impleaded Respondent Nos. 4 to 8, who were nominated as Councillors of that Corporation by the State, in terms of the above Rules. These Rules were notified vide Notification dated 28th February, 2012.
4. The Petitioner also relies upon the General Body Resolution passed at a meeting of the Council dated 9th April, 2012, by which, these five persons were nominated as Councillors.
5. The Petitioner challenges the process of nomination and thereafter refers to the Rules of 2012 in detail. The Petitioner applied for being nominated as a Councillor and forwarded his form. Apart from the Petitioner, 14 others also filled in their application forms. The scrutiny was undertaken of such forms and the Municipal Commissioner, then, made the recommendations. Taking into consideration these recommendations, it was expected that the nominations would be made in terms thereof. However, the Resolution nominating Respondent Nos. 4 to 8 was passed. It has been challenged on the ground that that these persons were not eligible. They were nominated even without considering the recommendations of the Municipal Commissioner.
6. It is in these circumstances that after registering their protest and seeking information under the Right to Information Act, 2005 that the Petitioner challenged the nominations on various grounds set out in the Petition.
7. The prayer in the Petition is to call for the records and proceedings pertaining to these nominations and to declare the Resolution nominating Respondent Nos. 4 to 8 as illegal, unconstitutional, unjust and unfair. By prayer clause (b), the Petitioner is seeking a declaration that he should be nominated as Councillor of the Ulhasnagar Municipal Corporation.
8. The other reliefs are ancillary and incidental to the above principal reliefs.
9. Writ Petition No. 1016 of 2013 is filed by an Association of practicing Architects and Engineers, Bhivandi. That Association is aggrieved and dissatisfied with the nominations of Councillors on Bhivandi Nijampur Municipal Corporation. It is also challenging part of Rule 5(1) of the Nomination Rules of 2012.
10. This Petition arrays and impleads several parties as Respondents other than statutory authorities. Respondent Nos. 13 to 15 to this Petition are nominated Councillors of the Bhivandi Nijampur Municipal Corporation. Apart from elected Councillors, relying upon the 2012 Rules, the Municipal Secretary, on 20th October, 2012, wrote to various political parties and groups requesting to recommend names for nomination of Councillors.
11. Thereafter, various municipal Councillors of certain political parties recommended the name of Respondent No. 7, who is also member of the Petitioner Association. It is averred in the Petition that on 27th November, 2012, the Municipal Commissioner, on the advice of the political parties, recommended names of Respondent Nos. 13 to 15, along with others to be nominated, but n
