2011(3) ALL MR 882
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

M.S. SHAH AND D.G. KARNIK, JJ.

Jairam T. Shinde Vs. State Of Maharashtra & Ors.

Writ Petition No.2442 of 2011

7th April, 2011

Petitioner Counsel: Mr. A. V. ANTURKAR,Mr. SHRISHAIL DESHMUKH, Mr. P. B. GOLE , Mr. P. N. JOSHI
Respondent Counsel: Mr. V. D. PATIL,Mr. V. A. GANGAL,Mr. A. T. GADE,Mr. VINDU PANDEY , Mr. CHARANJEET KAUR,Mr. P. K. DHAKEPHALKAR,Mr. MANDAR GOSWAMI , Mr. MAHESH THORAT,Mr. S. G. ANEY,Mr. L. M. ACHARYA

(A) Bombay Provincial Municipal Corporations Act (1949), S.31A - Scheme of proportional representation under S.31-A - Practice followed by Municipal Corporation of giving representation to smaller parties by rotation by nominating a member of smaller parties to the standing committee by rotation, held, is in consonance with the provisions of S.31-A of the Act.

After the larger parties get their representation based upon their relevant strength in the Corporation if there are any balance seats remaining, they are to be filled in not from the same parties but from the independent councillors or councillors belonging to the smaller parties which are not already represented in the Standing Committee. However, the independent and smaller parties themselves do not have an exclusive right to nominate one or more (depending upon the vacancies) of their members in the Standing Committee. The nomination of an independent councillor or a councillor from the smaller parties is to be made by the Corporation and while so nominating each party including the larger parties, who already have a representation in the Standing Committee, may also suggest or propose the name of an independent councillor or a councillor from smaller parties for appointment to the Standing Committee. The only restriction would be that such larger party would not be entitled to nominate a councillor of their own party because that would violate the principle of proportional representation. Even if it is assumed that the name of respondent no.5 was suggested or proposed by Shiv Sena, it cannot be said that Shiv Sena had no right to propose,suggest or recommend her name to the General Body and therefore the nomination made by the respondent no.2 Corporation cannot be faulted only on the ground that her name was proposed, suggested or recommended by Shiv Sena.

The practice followed by respondent no.2 municipal corporation of giving representation to smaller parties by rotation by nominating a member of smaller parties to the standing committee by rotation, is in consonance with the provisions of section 31-A of the Act as interpreted by the Full Bench in its decision in Jairam Tolaji Shinde. It may also be noted that the petitioner himself was nominated as a member of the standing committee for the immediately preceding year. The respondents did not commit any illegality by not nominating him as a member of the standing committee again. [Para 14]

(B) Bombay Provincial Municipal Corporations Act (1949), S.31A - Scope and object of - What S.31-A contemplates is nomination and not election. (Para 15)

Cases Cited:
Jairam Tolaji Shinde Vs. The Secretary, Urban Development, Maharashtra State, 2010(3) Mh.L.J. 465 [Para 2,4,8,14]
Vasant Nivrutti Gite Vs. Municipal Corporation of City of Nashik, 2007(4) Mh.L.J. 871 [Para 8]


JUDGMENT

D. G. KARNIK, J. :- As the elections to the post of the Chairman of the standing committee was required to be held expeditiously, we pronounced our order forthwith with a direction that the reasons would follow. We now proceed to give our reasons for the order.

2. By this petition the petitioner, a councillor of Municipal Corporation of Nashik, seeks a declaration that the action of respondent no.3 (the mayor of Municipal Corporation of Nashik) of nominating the respondent no.5, purporting to be from Shiv Sena quota, as a member of the standing committee of the municipal corporation to be arbitrary, illegal, null and void. The petitioner has also sought for a direction to the respondent no.3 to forthwith appoint the petitioner to be a member of the standing committee representing majority of the small registered political parties, in the light of the observations made in paragraph no.13 of the decision of the Full Bench in Jairam Tolaji Shinde Vs. The Secretary, Urban Development, Maharashtra State, 2010(3) Mh.L.J. 465.

3. Nashik Municipal Corporation, the respondent no.2 herein, is constituted under the provisions of Bombay Provincial Municipal Corporation Act, 1949 (for short "the Act"). Its General Body consists of elected 108 councillors and the standing committee consists of 16 councillors. Party wise strength of the councillors in the respondent no.3 municipal corporation and the number of candidates to be nominated by the corporation party wise to the standing committee, as given by the petitioner in a table at the end of paragraph no.2 of the petition, is as follows:-


Sr. No.
Party Name
No. of Councillors
Quota
Seats

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

Shiv Sena

BJP

Congress

Rashtrawadi Congress

MNS

Independents Group

BSP

RPI

LJP

Samajwadi Party

SKP

Communist

Independents

26

14

21

17

12

9

3

2

1

1

1

1

1

3.85

2.07

3.11

2.51

1.77

1.33

0.44

0.29

0.14

0.14

0.14

0.14

0.14

4

2

3

3

2

1

-

-

-

-

-

-

-

   
TOTAL
15

4. The contents of the table are not disputed before us by any of the respondents and we would therefore assume them to be correct. There is no dispute between the parties that 15 councillors as mentioned in the said table are to be nominated by the first six largest parties mentioned in the table above. That leaves the seat of one of the 16 members of the standing committee unfilled. There is no dispute between the parties that the sixteenth seat of a member of a standing committee was required to be filled in by nomination of one of the independent councillors or the councillors belonging to smaller parties who were not represented on the standing committee as per the provisions of section 31-A of the Act as interpreted by the Full Bench in the case of Jairam Tolaji Shinde (supra). The dispute however is whether the respondent nos.2/3 erred in nominating respondent no.5 over the petitioner.

5. According to the petitioner, by his letter dated 1st March, 2011 (Exhibit-F at page 103 of the petition) he requested the respondent no.3 mayor to recommend his name to the General Body for nomination to the said sixteenth seat as representative of the smaller parties. Similarly, Samajwadi Party had also recommended his name vide letter dated 1st March, 2011 (Exhibit-F at page 102 of the petition). On the other hand, name of respondent no.5 Vandana Tiwari was recommended for nomination to fill up the sixteenth seat by Shiv Sena vide letter dated 1st March, 2011 (Exhibit-G at page 103 to the petition). Mr.Anturkar submitted that since names of two persons were recommended to the respondent no.3 mayor for nomination to the post of sixteenth member of the standing committee, she ought to have placed both the names before the General Body which could have accepted one of the names. However, the respondent no.3 illegally put up only the name of respondent no.5 before the General Body which nominated her to the post of the sixteenth seat of the standing committee. Though number of grounds have been raised in the petition, Mr. Anturkar pressed before us only 2 grounds viz. (i) Shiv Sena having already exhausted its quota for the membership of the standing committee had no right to nominate respondent no.5 as a member of the standing committee and nomination of respondent no.5 to the post of a member of the standing committee made by General Body on the basis of recommendation of Shiv Sena was illegal and void. (ii) Since the names of two councillors were suggested to the respondent no.3 by different political parties for nomination to the post of sixteenth member of the standing committee, the respondent no.3 ought to have placed both the names to the General Body which could have elected any one of them.

6. Before we consider the submissions of Mr. Anturkar, it would be appropriate to refer to the relevant provisions of the Act. Section 20 of the Act provides that the corporation shall at its first meeting after the general elections appoint a standing committee consisting of 16 councillors. In the event of a corporation acquiring or establishing the transport undertaking, a corporation shall also have a transport committee consisting of 13 members. In addition, the corporation can also form special committees and adhoc committees under section 30 and 31 of the Act. While formation of the special committees and ad-hoc committees under section 30 and 31 is discretionary, formation of a transport committee under the Act is mandatory where the corporation has a transport undertaking. It is also mandatory for the corporation to form a standing committee of 16 councillors. Section 31-A of the Act deals with the appointment of members of different committees and reads as follows:-

"31-A. Appointment by nomination on Committees to be by Proportional representation - (1) Notwithstanding anything contained in this Act or the rules or bye-laws made thereunder, in the case of the following Committees, except where it is provided by this Act, that the appointment of a Councillor to any Committee shall be by virtue of his holding any office, appointment of Councillors to these Committees shall be by virtue of his holding any office, appointment of Councillors to these Committees, whether in regular or casual vacancies, shall be made by the Corporation by nominating Councillors in accordance with the provisions of sub-section(2):-

(a) Standing Committee;

(b) Transport Committee;

(c) Any special Committee appointed under section 30;

(d) Any ad hoc Committee appointed under section 31.

(2) In nominating the Councillors on the Committee, the Corporation shall take into account the relative strength of the recognised parties or registered parties or groups and nominate members, as nearly as may be, in proportion to the strength of such parties or groups in the Corporation, after consulting the Leader of the House, the Leader of Opposition and the leader of each such party or group:

Provided that, nothing contained in this sub-section be construed as preventing the Corporation from nominating on the Committee any member not belonging to any such party or group:

Provided further that, for the purpose of deciding the relative strength of the recognised parties or registered parties or groups under this Act, the recongised parties or registered parties or groups, or elected Councillors not belonging of any such party or group may, notwithstanding anything contained in the Maharashtra Local Authority Members' Disqualification Act, 1986, within a period of one month from the date of notification of election results, form the aghadi or front and, on its registration, the provisions of the said Act shall apply to the members of such aghadi or front, as if it is a registered pre-poll aghadi or front.

(3) If any question arises as regards the number of Councillors to be nominated on behalf of such party or group, the decision of the Corporation shall be final."

7. Following principles are discernible from Section 31-A of the Act.

(i) The section does not contemplate election for appointments to the post of the standing committee and other committees but the appointment to the post of members of the standing committee and other committees is to be made by nomination on the basis of proportional representation.

(ii) The nomination to the post of a member of the standing committee or other committees is to be made by the corporation i.e to say the nomination is to be made by the General Body of the corporation.

(iii) Principles for appointment as members of the standing committee, transport committee any special committee or adhoc committee are the same.

8. The scheme of proportional representation under section 31-A of the Act and in particular the proviso thereto came up for consideration before a Division Bench of this Court in Vasant Nivrutti Gite Vs. Municipal Corporation of City of Nashik, 2007(4) Mh. L.J. 871. However, the correctness of the view taken by the Division Bench in the case of Vasant Gite was doubted by another Division Bench in Writ Petition No.5287 of 2008 and also in Writ Petition No. 7938 of 2008. The matter was therefore referred to a Full Bench. In the case of Jayram Tolaji Shinde Vs. The Secretary, Urban Development Department, Mumbai, 2010(3) Mh. L.J. 465, by a majority decision the Full Bench affirmed the view taken in the case of Vasant Gite subject to certain modifications. The Full Bench held that firstly one would have to see the total strength of the councillors in the General Body including the independents who have not formed any aghadi or group and then the total number of councillors of the Corporation would be divided by 16, (i.e. the number of seats of the Standing Committee), and the result of such division would give the requisite quotient. Thereafter the number of councillors of each party should be divided by the quotient to find out the number of councillors from that the party would be entitled to nominate for the membership of the Standing Committee. The number of such division may not necessarily be a full integer and may be an integer and some fraction. The fraction which is less than 0.5 should be ignored and the fraction 0.5 and above should be rounded off to the next higher number subject however to the condition that in case after such rounding off the number of councillors to be appointed to the Standing Committee exceeds 16, then the fractions of all the parties should be arranged in a descending order and the parties having higher fraction would get a right of nomination upto the total 16 seats are filled. If however after such rounding off and filling up the seats any vacancy remains (such vacancy may arise on account of independent or members of similar parties constituting a large number), that is to say the total number of councillors to be nominated to the Standing Committee is less than 16, then those vacancies should be filled in by nominating independent councillors or any member/s of smaller parties who are unrepresented on the Standing Committee.

9. In the present case, applying the ratio laid down by the Full Bench in the case of Jayram Tolaji Shinde, 15 councillors were nominated by different political parties from amongst their quota to the Standing Committee as mentioned in the Table mentioned in para 3 above. The vacant 16th seat was required to be filled in by nominating any independent councillor or a member of the smaller parties which were unrepresented on the Standing Committee. The respondent no.2 Corporation has nominated the respondent no.5, a member of LJP - a smaller party not represented on the Standing Committee, as its member. That appointment is challenged by the petitioner contending that he and not the respondent no.5 should have been nominated.

10. In support of his submission that respondent no.5 was illegally nominated from the quote of Shiv Sena illegally. Mr.Anturkar invited our attention to the resolution no.1873 passed in the meeting of the respondent no.2 municipal corporation in its meeting dated 1st March, 2011. He submitted that as per the Table (given in paragraph 3 above) the Shiv Sena could nominate only four members to the posts of the members of the standing committee and as it had already nominated its four councillors; it had no right to nominate any councillor for the 16th seat. Consequently, the nomination of respondent no.5 as a nominee from the quota of Shiva Sena was illegal and contrary to the provisions of section 31-A of the Act. It is no doubt true that the resolution mentions that the respondent no.5 was nominated by Shiv Sena. But in our view the nomination is not illegal for two reasons mentioned below:

11. Firstly, the respondent no.3, the Mayor in her affidavit has explained that the mention of respondent no.5 as a nominee of Shiv Sena in the resolution was a mistake and in fact she was not the nominee of Shiv Sena. She has further stated on affidavit that the petitioner was trying to take undue advantage of the mistake that had crept in the minutes referring to the respondent no.5 as from Shiv Sena quota (see paragraph no.5 of the affidavit) She has further stated that respondent no.5 in fact represents smaller parties and belongs to Lok Jan Shakti Party (LJP) which was not represented on the standing committee earlier. In view of the specific affidavit of respondent no.3 that respondent no.5 was not nominated by the Corporation from the quota of Shiv Sena and explaining the mistakes in the minutes, the contention of the petitioner that respondent no.5 was appointed from the quota of Shiv Sena cannot be accepted.

12. Secondly, the respondent no.3 in her affidavit has explained that the one vacancy in the membership of the standing committee was required to be filled from and out of the councillors belonging to the smaller parties which on the strength of their own councillors had no power to nominate a councillor to the membership of the standing committee. As per the majority decision of the Full Bench in the case of Jairam Tolaji Shinde, the vacancy had to be filled in by nominating a councillor belonging to the smaller parties who did not have requisite strength of nominating anyone to the membership of the standing committee. The respondent no.3 has further stated that the corporation had followed the practice of nominating councillors from smaller parties by rotation. Paragraph nos.6 and 11 of the affidavit of the respondent no.3 are material and are reproduced below:-

"6. I say that, it is a matter of fact that several letters were received by me on 1.3.2011 recommending names of members belonging to several smaller parties, including that of the petitioner, the Respondent No.5 herein. However, as per the practice followed so far in Nasik Municipal Corporation, since rotational representation is given to smaller parties was required to be considered who have not been given representation on the standing committee earlier. Accordingly in the General Body Meeting held on 1.3.2011, I proposed the name of Respondent no.5 Smt.Reema Bhagwan Bhoge belonging to Lok Janshakti Party (L.J.P) which party had not been represented on the standing committee earlier. In the said meeting, the leader of the house Mr. Dilip Datir, Leader of opposition - Dr.Hemlata Patil and leaders of other Municipal parties were present in the house. I say that the petitioner was also preent in the said meeting. None of the members present in the house objected to the nomination of respondent no.5 on the standing committee. The petitioner, who was personally present during the meeting did not object to the nomination of respondent no.5. In fact, the nomination of respondent no.5 to the standing committee was unanimously passed.

11. I say that the recommendations of Gat Netas or other party for nominating members to the Standing Committee from smaller parties and/or independents is wholly irrelevant, unnecessary and unwarranted. As has been held by the Full bench of this Hon'ble Court, the question of conducting consultation process for the purpose of nominating members from smaller parties does not arise at all. I say that, seen from this perspective, the letters written by three smaller parties recommending the name of the Petitioner is irrelevant and of no consequence. Moreover, even if the recommendations were to be taken into consideration, the same in any case is not at all binding on the General Body of the Corporation for more than one reason. Firstly, such a recommendation is not at all binding on the Corporation since the General Body alone is competent to take a decision to nominate members on the Standing Committee. Secondly & most importantly, the Petitioner has already been represented to the Standing Committee in the past and cannot be considered for nomination again. I say that the Petitioner was in fact nominated from the quota assigned to smaller parties and therefore, once having represented on the Standing Committee, as per the law laid down by the Full Bench of this Hon'ble Court, he is not entitled to be nominated on the Standing Committee. On this count alone, the Writ Petition filed by the Petitioner is liable to be rejected summarily."

13. The contention of Mr. Anturkar that nomination of respondent no.5 is illegal because she has been nominated by Shiv Sena from its quota is based upon a misconception that Shiv Sena, after exhausting its quota of 4 seats, was not entitled to suggest the name of respondent no.5 as a member of the Standing Committee for representing smaller parties. In this connection, a reference may be made to the observations of the Full Bench in paragraphs 13 and 16 of its decision which read as follows:

"13. ...... Once the seats are alloted based on the relative strength of the parties, any seats that remain vacant on account of the combined strength of independents and such other parties, aghadies or fronts who by themselves may not have the necessary quotient but together the seats they hold might add to the necessary quotient will have to be given representation. If the proviso is to be read to mean that such parties or independents can also be nominated by the Corporation, then the plea of arbitrariness or unreasonableness will also not survive. After the first exercise is done in consultation with the Leader of the house, leader of the opposition and leaders of other parties to fill in the seats by nomination based on the relative strength of the parties, the proper construction will be that the remainder of the 16 seats have to be filled by the Corporation by nominating from members who belong to parties, fronts or independents not already represented.

16. ...... 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 filled 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 by nominating from independents or parties or aghadi not already represented. To that extent, in our opinion, the view taken in Gite'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 ." (emphasis supplied)

It is thus clear that after the larger parties get their representation based upon their relevant strength in the Corporation if there are any balance seats remaining, they are to be filled in not from the same parties but from the independent councillors or councillors belonging to the smaller parties which are not already represented in the Standing Committee. However, the independent and smaller parties themselves do not have an exclusive right to nominate one or more (depending upon the vacancies) of their members in the Standing Committee. The nomination of an independent councillor or a councillor from the smaller parties is to be made by the Corporation and while so nominating each party including the larger parties, who already have a representation in the Standing Committee, may also suggest or propose the name of an independent councillor or a councillor from smaller parties for appointment to the Standing Committee. The only restriction would be that such larger party would not be entitled to nominate a councillor of their own party because that would violate the principle of proportional representation. Even if it is assumed that the name of respondent no.5 was suggested or proposed by Shiv Sena, it cannot be said that Shiv Sena had no right to propose,suggest or recommend her name to the General Body and therefore the nomination made by the respondent no.2 Corporation cannot be faulted only on the ground that her name was proposed, suggested or recommended by Shiv Sena.

14. The practice followed by respondent no.2 municipal corporation of giving representation to smaller parties by rotation by nominating a member of smaller parties to the standing committee by rotation, in our view is in consonance with the provisions of section 31-A of the Act as interpreted by the Full Bench in its decision in Jairam Tolaji Shinde (supra). It may also be noted that the petitioner himself was nominated as a member of the standing committee for the immediately preceding year. In our view, the respondents did not commit any illegality by not nominating him as a member of the standing committee again.

15. The second contention of Mr. Anturkar that name of respondent was recommended to the General Body by himself and one more party and therefore his recommendation along with the recommendation of the respondent no.5 ought to have been placed before the General Body which alone could have considered whether to nominate the petitioner or respondent no.5 as a member of the standing committee cannot be accepted. Firstly, as stated earlier, the petitioner was nominated as a member of the standing committee for the immediately preceding term and as per the say of respondent no.3 the corporation was giving representation on the standing committee to the members of smaller parties by rotation. Therefore, his name was not considered for nomination for 2 consecutive terms. Secondly, as stated earlier, what section 31-A contemplates is nomination and not election. If the contention of Mr. Anturkar is accepted that both the nominations should have been put before the General Body corporation and then the General Body could have decided by majority of votes who should be nominated a member of standing committee then that would virtually amount to an election by a straight contest between the petitioner and respondent no.5. We therefore, are unable to accept the contention that the respondent municipal corporation committed any illegality in not nominating the petitioner for re-appointment to the post of a member of the standing committee.

16. There is no merit in the writ petition which we have dismissed by our order dated 7th April, 2011.

Petition dismissed.