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CIVIL APPELLATE JURISDICTION
WRIT PETITION (ST) NO.4385 OF 2020
Ajay Boraste )
Age 50 years, Councilor-Shivsena, )
Nashik Municipal Corporation, ) having his office at Nashik Municipal )
Corporation, Sharanpur Road, Nashik.).. Petitioner
Vs.
1.The State of Maharashtra through )
Principal Secretary, Urban )
Development Department, )
Mantralaya, Mumbai. )
2. The Divisional Commissioner, )
Nashik Division, having his office ) at Administrative Building, )
Nashik-Pune Road, Nashik. )
3. The Commissioner, )
Nashik Municipal Corporation )
Corporation, Shranpur Road, )
Nashik. )
4. Municipal Secretary, )
Nashik Municipal Corporation )
Corporation, Shranpur Road, Nashik )
5. Jagdish Chintaman Patil, )
Group Leader, BJP Party, having ) his office at Nashik Municipal )
Corporation Sharanpur Road, Nashik.).. Respondents
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V. Rane
Mr.Anil A.Anturkar, Senior Advocate with Mr.S.J.Deshmukh and
Mr.Pravin Gole, for the Petitioner.
Mr.A.I.Patel, Additional Govt.Pleader, for the State.
Mr.M.M.Pable, AGP for the State.
Mr.M.L.Patil, for Respondent no.3.
Mr.Sandeep V. Marne, for Respondent no.4.
Mr.Pradeep Thorat with Mr.Aniesh S.Jadhav with Vaibhav Kamble i/b.
Jay Bhatia, for Respondent no.5
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JUDGMENT
1. Rule returnable forthwith. Respondents waive service. By consent of the parties and at their request taken up for final hearing.
2. The petitioner who is an elected councillor of the Nashik Municipal Corporation (for short ‘the NMC’) and who belongs to a political party by name Shiv-Sena, is before the Court assailing a resolution of the General Body of the NMC dated 24 February 2020 [Resolution no.196] (for short ‘the said resolution’), to the extent that there is a shortfall to nominate one Councillor belonging to the Shiv- Sena on the Standing Committee, of the municipal corporation and instead a nomination of one Councillor from the Bharatiya Janata Party has been made.
3. Briefly, the case of the petitioner is that the General Ward elections of the NMC for total 122 seats were held in the year 2017. In such election, 66 candidates came to be elected belonging to the Bharatiya Janata Party; 35 candidates were elected from the Shiv-Sena. The elected candidates (councillors) were registered under the Maharashtra Local Authorities Members Disqualification Rules,1987 (for short ‘the 1987 Rules’). The petitioner contends that once a group of elected councillors is registered under the provisions of the 1987 Rules, they secure the benefit of Section 31-A of the Maharashtra Municipal Corporation Act,1949 (for short ‘the 1949 Act’) for nomination on the standing committee of the municipal corporation.
4. The total number of members of the “Standing Committee” of the NMC is fixed at 16 as per the provisions of Section 20 of the 1949 Act, which interalia provides that one half members of the Standing Committee would retire by rotation every year. Section 31-A provides for a method and mode of appointment of the Councillors on the standing committee, by nomination, on the relative strength of each party, aghadi or group.
5. The petitioner contends that there were 66 councillors belonging to the Bharatiya Janata Party, registered under the 1987 Rules. On the basis of such numbers, the said party was entitled to have 9 councillors on the 16 member standing committee, till the year 2019- 20, and the Shiv-Sena on the basis of their 35 elected councillors were entitled for 4 councillors on the standing committee. However, one of the elected councillor belonging to Bharatiya Janata Party by name Smt.Saroj Ahire who contested election from Ward no.22-A resigned, to contest elections of the Maharashtra Legislative Assembly. One more elected councillor of the Bharatiya Janata Party Smt.Shantabai Hire, who had contested election from Ward No.4-A expired on 29 December
2019. Thus, there was a reduction of two elected councillors belonging to Bharatiya Janata Party, thereby making the total number of elected councillors of Bharatiya Janata Party at 64. Subsequently, there was a by-election in respect of one of the vacant wards (Ward no.22-A) in which a candidate belonging to the NCP, was elected. There was no byelection in respect of the other ward in which a vacancy had arisen, and as noted above.
6. The petitioner has contended that the State Government upon a representation of the group leader of the Shiv-Sena, issued a letter dated 20 February 2020 to the Mayor and the Commissioner of the NMC to abide by the provisions of Section 31-A of the 1949 Act while nominating members on the Standing Committee. The group leader of the petitioner’s political party/Shiv-Sena by his letter dated 24 February 2020 brought to the notice of the Divisional Commissioner, information about the reduction of the strength of Bharatiya Janata Party candidates. The Divisional Commissioner replied to the said letter by his letter of even date, that a report in that regard is called for, from the group leader of the Bharatiya Janata Party.
7. Thereafter the Municipal Secretary of the NMC on 17 February 2020 issued a notice calling for a General Body meeting of the NMC, to be held on 24 February 2020 which would take up an agenda for nomination of 8 members on the Standing Committee, in place of the retiring members. Such meeting was held as scheduled. In the said meeting, the petitioner’s party-Shiv-Sena nominated three candidates. However, a resolution was passed by the General Body being Resolution no.196 as impugned, nominating 4 members of Bharatiya Janata Party on the Standing Committee and 2 members were nominated from Shiv-Sena by the General Body.
8. Mr.Anturkar, learned Senior Advocate with Mr.Shrishailya Deshmukh, learned Counsel for the petitioner, have tendered a statement reflecting the party-wise representation on the Standing Committee in the year 2017, which is immediately after the general elections, and the position which ought to take place as per law, after December 2019. It would be relevant to extract the figures in the statement, which are as under: “Partywise Representation on Standing Committee Total Number of members of General Body / Standing Committee Strength = Quotient 122 / 16 = 7.62 Position in the year 2017 Sr. No. Party Total numbers Divided by Quotient Relative strength Representati on on Standing Committee
1. BJP 66 7.62 8.66 9
2. Shivsena 35 7.62 4.59 4
3. Congress 7 7.62 0.91 1
4. NCP 7 7.62 0.91 1
5. MNS 6 7.62 0.68 1
6. RPI 1 7.62 0.13 NIL Position which should occur after December 2019 Sr. No. Party Total numbers Divided by Quotient Relative strength Representation on Standing Committee
1. BJP 64 7.62 8.39 8
2. Shivsena 35 7.62 4.59 5
3. Congress 7 7.62 0.91 1
4. NCP 8 7.62 1.04 1
5. MNS 6 7.62 0.68 1
6. RPI 1 7.62 0.13 NIL
9. Learned Counsel for the petitioner would contend that as per the requirement of Section 31-A of the 1949 Act, there is shortfall to nominate one member from the petitioner’s political party namely the Shiv-Sena. This for the reason that there is a reduction in the total number of elected candidates belonging to Bharatiya Janata Party which stood reduced from 66 to 64. It is contended that by applying the formula for arriving at the correct number of candidates to be nominated, a fresh quotient of 7.56 would be required to be taken into consideration which would attribute 4.62 seats in favour of Shiv-sena. According to the petitioner the following would be the calculation for deciding party-wise representation on the Standing Committee. Total number of members of the General Body divided by Standing Committee strength, would determine the quotient, which according to the petitioner would be as under:- Total number of elected candidates i.e. 122 divided by 16 (total strength of the Standing Committee), which is equal to 7.62 quotient which would be the standard quotient.
10. According to the petitioner, the new quotient in view of the reduction in the seats of the Bhartiya Janata Party and considering one by-election would be 121 (reduced strength of the elected candidates) divided by 16 (strength of the Standing Committee) which would be equal to 7.56. The petitioner contends that by applying quotient 7.56, the position of the representatives of the Bharatiya Janata Party and Shiv-Sena Councillors on the Standing Committee would be as under:- Total number of Bharatiya Janata Party candidates (66) divided by quotient (7.56) = 8.46 Councillors, on rounding of 8 Councillors. Total number of Shiv-Sena Candidates (35) divided by quotient (7.56), is equal to 4.64 and on rounding of it would be 5 Councillors.
11. The petitioner accordingly contends that there is a clear mis-application of the provisions of Section 31-A of the 1949 Act, inasmuch as instead of 4 members on the standing committee, the Shivsena is entitled to have a representation of 5 members. Learned Counsel for the petitioner has submitted that such calculation and the application of the provisions of Section 31A of the 1949 Act had fell for consideration of the Division Bench of this Court in Jayram Tolaji Shinde Vs. The Secretary, Urban Development Department, Mumbai (2010(3) Mh.L.J. 465), in which the Court confirmed the view taken by the another Co-ordinate Bench of this Court in Vasant Nivrutti Gite & Anr. Vs. Municipal Corporation of City of Nashik & Ors. (2007(4) Mh.L.J. 871). In Jayram Tolaji Shinde (supra) the Division Bench explained the decision in Vasant Nivrutti Gite, to hold that while considering the decimal of 0.[5] or more by rounding as one, the representation will have to be worked out in a manner that anything less than 0.[5] is to be excluded. Anything between less than 1 and 0.[5] would first allow representation in the descending order. The petitioner’s contention is that applying the law as laid down in these decisions, it is clear that nomination of 5 members belonging to the Shiv-Sena would comply with the requirement of Section 31A, hence the impugned resolution is illegal to the extent it excludes nomination of one member belonging to Shiv-Sena.
12. The group leader of Bharatiya Janata Party-respondent no.5 is represented by the learned Counsel Mr.Pradeep Thorat. The State of Maharashtra and the Divisional Commissioner are represented by the learned AGP and Mr.M.L.Patil, learned Counsel represents the NMC.
13. Mr.Thorat would submit that the impugned resolution passed by the General Body is in consonance with Section 31-A of the Act. He would although not dispute that there was reduction in the total strength of the elected candidates belonging to Bharatiya Janata Party from 66 to 64. Mr.Thorat has made submissions as to how the Standing Committee would be constituted by the provisions of Sections 20 and 31-A of the 1949 Act, and according to Mr.Thorat the impugned resolution of the General Body cannot be faulted.
14. The short issue which falls for our consideration is whether the impugned General Body Resolution would fall foul of Section 31A of 1949 Act to the extent it declines to nominate an additional Councillor from the petitioner’s political party namely the Shiv-Sena.
15. To answer the question, it would be appropriate to note the provisions of Section 20 which provide for the constitution of the Standing Committee and the provisions of Section 31A which provide for ‘Appointment by nomination on Committees to be by proportional representation’. These provisions read thus:
20. Constitution of Standing Committee (1) The Standing Committee shall consist of sixteen councillors. (2) The Corporation shall at its first meeting after general elections appoint [sixteen] persons out of its own body to be members of the Standing Committee. (3) One-half of the members of the Standing Committee shall retire every succeeding year at noon on the first day of the month in which the first meeting of the Corporation mentioned in sub-section (2) was held: Provided that all the members of the Standing Committee in office when general elections are held shall retire from office on the election of a new Committee under sub-section(2). (4) The members who shall retire under sub-section (3) one year after their election under sub-section(2) shall be selected by lot at such time previous to the date for retirement specified in sub-section (3) and in such manner as the Chairman of the Standing Committee may determine, and in succeeding years the members who shall retire under this section shall be those who have been longest in office: Provided that, in the case of a member who has been reappointed, the term of his office for the purposes of this subsection shall be computed from the date of his reappointment. (5) The Corporation shall at its meeting held in the month preceding the date of retirement specified in sub-section(3) appoint fresh members of the Standing Committee to fill the offices of those who are due to retire on the said date. (6) Any Councillor who ceases to be a member of the Standing Committee shall be eligible for reappointment. 31A.(1) Appointment by nomination on Committees to be by proportional representation. 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, 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 maybe, 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, the relative strength of the recognized parties or registered parties or groups or aghadi or front shall be calculated by first dividing the total number of Councillors by the total strength of members of the Committee. The number of Councillors of the recognized parties or registered parties or groups or aghadi or front shall be further divided by the quotient of this division. The figures so arrived at shall be the relative strength of the respective recognized parties or registered parties or groups or aghadi or front. The seats shall be allotted to the recognized parties or registered parties or groups or aghadi or front by first considering the whole number of their respective relative strength so ascertained. After allotting the seats in this manner, if one or more seats remain to be allotted, the same shall be allotted one each to the recognized parties or registered parties or groups or aghadi or front in the descending order of the fraction number in the respective relative strength, starting from the highest fraction number in the relative strength, till all the seats are allotted:] Provided further that, for the purpose of deciding the relative strength of the recognised parties or registered parties or groups under this Act, the recognised parties or registered parties or groups, or elected Councillors not belonging to 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.]” (emphasis supplied)
16. By virtue of Section 20, the Standing Committee of the NMC would consist of 16 councillors. As per Sub-section (2) of Section 20 the Corporation shall at its first meeting after the general elections appoint sixteen persons out of its own body to be members of the Standing Committee. Sub-section (3) provides that one-half of the members of the Standing Committee shall retire every succeeding year at noon on the first day of the month in which the first meeting of the Corporation mentioned in sub-section (2) was held.
17. As far as the appointment by nomination on the Committees which includes the nomination to the Standing Committee is concerned, it would be by proportional representation. From a bare reading of Section 31A, it is seen that it begins with a non-obstante clause, so as to provide for an overriding effect of this provision, in regard to anything contained in the Act, the rules or the bye-laws made thereunder, except for what is provided under the Act, to provide that appointment of a Councillor to any Committee shall be by virtue of his holding any office; appointment of Councillors to these Committees, whether regularly or to fill up the casual vacancies, to be made by the Corporation by nominating Councillors in accordance with the provisions of sub-section (2). Sub-section (2) provides that in nominating Councillors on the Committees, the Corporation shall take into account the “relative strength” of the recognised parties or registered parties or groups or aghadi or front, and nominate members, as nearly as may be, in proportion to the strength of such parties in the Corporation, after consulting the Leader of the House, the Leader of Opposition and the leader of each such parties or group or aghadis or front. The method of calculating the relative strength of the recognized parties or groups or aghadi or front is required to be in the manner as provided for in the proviso below sub-section (2), which mandates that it shall be calculated by first dividing the total number of councillors by the total strength of members of the Committee, as already noted by us. Thereafter, the number of Councillors of the recognized parties or registered parties or groups or aghadi or front shall be further divided by the quotient of this division. The figures so arrived at, shall be the relative strength of the respective recognized parties or registered parties or groups or aghadi or front. The seats so determined shall be allotted to the recognized parties or registered parties or groups or aghadi or front by first considering the whole number of their respective relative strength so ascertained. After allotting the seats in such manner, if one or more seats remain to be allotted, the same shall be allotted one each, to the recognized parties or registered parties or groups or aghadi or front in the descending order of the fraction number in the respective relative strength, starting from the highest fraction number in the relative strength, till all the seats are allotted.
18. It is by such mechanism and method as prescribed in the proviso below sub-section (2) the members would be nominated to the Standing Committee by the Corporation. The interpretation of Sections 31 and 31A fell for consideration of the Division Bench of this Court in Vasant Nivrutti Gite (supra) case. It was held that the proper construction of sub-section (2) and provisos below sub-section (2) would be to first nominate the members to the Standing Committee from the parties which have necessary quotient based on relative strength of their membership on the General Body. This interpretation was followed and approved in the subsequent decision in Jayram Tolaji Shinde case (supra) as also in Sangram V. State of Maharashtra reported in 2017 SCC OnLine Bom 8579.
19. In our opinion the mandate of the proviso below subsection (2) of Section 31A is quite clear that the nomination of the members to the Standing Committee amongst the parties necessarily has to be as per the quotient, which is based on the relative strength of such a political party’s membership on the General Body of the municipal corporation. The proviso below sub-section (2) sets out a complete mechanism for arriving at such quotient and the consequent determination of the respective relative strength which would be required to be arrived at, in the descending order of the fraction number, starting from the highest fraction number in the relative strength, till all the seats are allotted.
20. We find that by applying the method and the manner of arriving at such relative strength as prescribed by Sub-section (2) of Section 31A, it was incumbent on the General Body of the NMC to consider the quotient of 7.56, which had arisen on account of reduction of two seats of Bharatiya Janata Party, reducing its total strength from 66 to 64. There is no dispute on such quotient being arrived, which is on the actual strength of the total number of councillors of each of these parties on the General Body of the Corporation. At the same time the total strength of the elected Councillors of Shiv-Sena had remained at 35, however, correspondingly on such change of the quotient, the relative strength of Shiv-Sena was required to be taken at 4.62, and by applying the rounding up formula, as accepted by this Court in Jayram Tolaji Shinde case (supra), and by considering the relative strength in the descending order of the fraction number, in our opinion, the General Body ought to have nominated one additional councillor from the Shiv-Sena on the Standing Committee, so as to make the strength of the Shiv-Sena councillors on the Standing Committee to be at 5 in place of 4. The General Body of the NMC, however, accepted nomination of only 2 councillors of the Shiv-Sena by the impugned resolution making the strength to 4 instead of 5. For such reason, the impugned General Body Resolution to the extent it fails to nominate one additional member/councillor belonging to the Shiv-Sena on the Standing Committee of the NMC, would be required to be held to be illegal, being in breach of the provisions of sub-section (2) of Section 31A of the 1949 Act.
21. As a sequel to the above discussion, the petition is required to be allowed in terms of prayer clause (a) and (b) which reads thus: a. that this Hon’ble Court be pleased to issue appropriate writ, order or direction and particularly the Writ of mandamus thereby quash and set aside the resolution of the General Body of Nashik Municipal Corporation dated 24.2.2020 bearing no. 196 to the extent of nominating one extra member of Bhartiya Janata party on the Standing Committee; b. that this Hon’ble Court be pleased to hold and declare that in view of Jayram Tolaji Shinde v. The Secretary, Urban Development Department, Mumbai, 2010 (3) Mh.L.J. 465 and Sangram v. State of Maharashtra, 2017 SCC OnLine Bom 8579: (2018) 3 Mah LJ 254 the Shivsena party in Nashik Municipal Corporation is entitled to nominate 5 seats on Standing Committee of Nashik Municipal Corporation for the year 2020-2021.
22. Rule is made absolute in the above terms. No costs. (G. S. KULKARNI, J.) (CHIEF JUSTICE)