S. V. GANGAPURWALA, J.

1. Rule. Rule returnable forthwith. With the consent of the learned counsel for parties, the petition is taken up for final hearing.

2. Mr. Deshmukh, learned counsel for the petitioners submits that the petitioner No. 2 is elected as councillor of Municipal Council, Parola, in the General Elections held on 28-11-2016 as candidates of Shivsena party. The petitioner No. 1 is the leader of the Municipal party/Aaghadi. Five councillors are elected of Shivsena party and the Shivsena party is registered in the Municipal Council, Parola as per section 63(2-B) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965.

3. Two councillors are required to be nominated as nominated councillors in the Municipal Council, Parola as per section 51-B of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 and Rules 2003. Considering the strength of parties Shahar Vikas Aaghadi with one independent councillor as well as Bhartiya Janata Party are entitled to submit nominations of one qualified person to be appointed as nominated councilor before 24 hours of scheduled programme through its leader of party. The BJP did not recommend name of any person for appointment as a nominated councillor for the election to be held in Special Meeting dated 30-12-2016. Shahar Vikas Aaghadi, nominated one Mr. Nitin Dattatraya Sonar. Shivsena party nominated petitioner No. 1 for appointment as nominated councillor within the stipulated period.

Mr. Deshmukh, learned counsel further submits that the petitioner No. 1 is qualified to be appointed as a nominated councillor, however, under the impugned order dated 29-12-2016, the District Collector, refused to recommend name of petitioner No. 1 for appointment as a nominated councillor by endorsing as ineligible/disqualified. However, no reasons were provided. The learned counsel submits that the Respondents are contending that Shivsena political party has only five elected councilors in the house, as such is not entitled to recommend name of any person for the post of nominated councillor. This view is contrary to the provisions of section 9(1)(b) and section 63(2-B) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 and Rule 5 of the Maharashtra Municipal Councils and Nagar Panchayats (Qualifications and Procedure For Appointment of Nominated Councillors) Rules, 2010. According to the learned counsel, two posts for nominated councillors are to be filled in the Special Meeting dated 30-12-2016. In respect of these posts, the present petitioner No. 1 and one Mr. Nitin Sonar submitted their nominations recommended by Shivsena party and Shahar Vikas Aaghadi respectively. Besides these two nominations, no other nomination form was submitted. None of the parties raised any objection to the nomination of the petitioner No. 1, still, only the nomination of Mr. Nitin Sonar was accepted and the second seat remained vacant. The learned counsel submits that though BJP had a greater strength of councillors in the house, the said party did not nominate any person nor raised objection to the nomination of the petitioner. It choose not to nominate any person. In such a case, there was no impediment for nominating the present petitioner No. 1. It is within the powers of the Collector to nominate any person. The order being illegal deserves to be set aside.

4. Learned A.G.P. submits that the Collector has taken into account the relative strength of recognised parties or registered parties and has to nominate members as nearly as may be, in proportion to the strength of such parties or groups in the Council. Only two posts for nominated councillors are available. Shahar Vikas Aaghadi was the one party which could have nominated as per its strength and the other party eligibility to nominate is BJP. Shivsena party could not have nominated the councillor. The Collector has correctly passed the order.

5.