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2019 Supreme(Bom) 609
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.C. Dharmadhikari, B.P. Colabawalla, JJ.
Siddheshwar Mogalappa Kamurthi – Appellant
Vs.
State of Maharashtra Through The Secretary, Urban Development Department, Government of Maharashtra, Mantralaya, Mumbai – Respondent
Writ Petition No. 479 of 2019, 475 of 2019, 478 of 2019, 480 of 2019
Decided On : 16-04-2019
Ramdas P Sabban, Adv., Subhash Gutte, Adv., Pravin Sabban, Adv., Kirti Kulkarni, Adv., N.R. Bubna, Adv.
Headnote:
Maharashtra Municipal Corporation (Qualification and Appointment of Nominated Councillors) Rules 2012 – Rule 4 – Constitution of India, 1950 – Article 226 – Maharashtra Municipal Corporations Act, 1949 – Sections 451, 16, 10, 11, 12 – Suspension of Councillor – By these petitions under Article 226 of the Constitution of India, the petitioners are challenging the order suspending them as nominated Councillors of Bhiwandi Nizampur City Municipal Corporation. – One Mr.Shyam Mansukhrai Agarwal filed writ petition in this Court being Writ Petition – This writ petition was placed before this Court, but no orders were passed and in the meanwhile, acting on his complaint which alleges that the nomination contravenes Rule 4 of the Maharashtra Municipal Corporation (Qualification and Appointment of Nominated Councillors) Rules 2012, the intervention of the Government was sought – Held, It is evident that the Bhartiya Janata Party, together with Shivsena party, its ally are the parties in power in the State. The State Government has exercised the powers under Section 451(1) at the instance of a person, who is a elected Councillor belonging to the Bhartiya Janata Party. – It is not as if he is remedyless nor the impugned order proceeds on the footing that he has no other remedy. – If he is aggrieved by the nominations, then, in terms of the law, he could have availed of all the legal remedies and, particularly, those referred by court. – There was no occasion for the State Government to have intervened in a pure political dispute. – The intervention by the State Government not only contravenes the mandate of Section 451, but also interferes with a democratic process. – That process had run its course. – There was no occasion for the State Government to intervene in such a process after it has run its course completely and only to oblige a political opponent of these nominated Councillors. – Court is of the firm opinion that the impugned order is ex-facie illegal, arbitrary and deserves to be set aside. – It is vitiated by a colourable exercise of power. – Neither the order subscribes to Section 451(1) of the MMC Act nor in the facts and circumstances peculiar to this case, the State Government could have entertained the complaint and obliged the elected Councillor, who is a member of the Bhartiya Janata Party. – Writ Petitions Allowed
S.C. Dharmadhikari, J.
By these petitions under Article 226 of the Constitution of India, the petitioners are challenging the order dated 27th November, 2018 suspending them as nominated Councillors of Bhiwandi Nizampur City Municipal Corporation.
2. The facts and circumstances in each of these petitions being common and equally the legal issue, we take the facts in Writ Petition No.479 of 2019 and dispose of all these petitions by this common judgment and order.
3. We issue Rule in each of these petitions. Respondents waive service. By consent, Rule is made returnable forthwith.
4. The petitioner says that a resolution was passed by the Municipal Corporation bearing number 76 dated 12th July, 2018 appointing the petitioner and four others as nominated Councillors. The nominated Councillors are the petitioner, in the present petition, Mr.Rahul Khatke, Mohammad Sajid Ashfaq Khan, Mr.Devanand R.Thale and advocate Harshad Pramod Patil.
5. The petitioner says that he is duly qualified to be nominated and particularly, fulfills the requirement of Rule 4 of the Rules in relation to nomination.
6. One Mr.Shyam Mansukhrai Agarwal filed writ petition in this Court being Writ Petition No.8541 of 2018. This writ petition was placed before this Court, but no orders were passed and in the meanwhile, acting on his complaint which alleges that the nomination contravenes Rule 4 of the Maharashtra Municipal Corporation (Qualification and Appointment of Nominated Councillors) Rules 2012, the intervention of the Government was sought.
7. The Government intervened by the impugned order and the order recites the backdrop in which the matter was taken up by the Government. The Government firstly referred to the requirements of the Rules and then, came to the allegations. The Government, after referring to the Rules, came to the conclusion that the nominations of the petitioner in this petition and others namely, Mohammad Sajid Ashfaq Khan, Rahul Chagan Khatke and Devanand Rupchand Thale are contrary to Rule 4 of the Rules as also a Government Circular dated 6th July, 2010. It is stated that once these Councillors have been nominated contrary to the Rules, then, Section 451 of the Maharashtra Municipal Corporations Act, 1949 (hereinafter referred to as "the MMC Act") empowers the Government to take the appropriate steps, including to suspend the resolution. It is in these circumstances, the impugned order recites that the Municipal Corporation Resolution dated 12th July, 2018 stands suspended. It stands suspended only to the extent of the Councillors referred above.
8. We have, with the assistance of Mr.Sabban appearing for the petitioners and learned advocate appearing for the Municipal Corporation Mr.Bubna as also the learned AGP perused the MMC Act.
9. The MMC Act is an Act to provide for the establishment of Municipal Corporations for all larger urban areas except that of Brihan Mumbai in the State of Maharashtra. Chapter I contains the preliminary provisions and Section 2 contains the definitions. In that, the definition of the term "Councillor" is relevant. Section 2 Clause 11 defines the term "Councillor" to mean a person duly elected as a member of the Corporation and includes a nominated Councillor, who shall not have the right to vote in meeting of the Corporation and the Committees of the Corporation and to get elected as a Mayor of the Corporation or a Chairperson of any of the Committees of the Corporation.
10. As far as the constitution and duration of the Municipal Corporation is concerned, it is evident from the provisions of the Act that by Section 5, the law permits establishment of a Municipal Corporation. The minimum number of elected Councillors is also specified together with the nominated Councillors. They have to be nominated, provided they have special knowledge and experience in municipal administration. They are to be nominated by the Corporation in such manner as may be prescribed. The word "prescribed" is defined to mean
