NARENDRA BHASKARRAO PATIL Vs. MUNICIPAL SECRETARY JALGAON CITY

JUDGEMENT

(1.) RULE. Heard forthwith. Learned Counsel for the respective respondents waive service. Both the petitions are being disposed of by a common order as they give rise to the same issue. Petitioners in Writ Petition No. 4525 of 2003 are the elected Councillors of the Jalgaon City Municipal Corporation. On 11-10-2003, elections had taken place to the Standing Council of the Municipal Corporation, Jalgaon for 16 members of accordingly, 16 members were elected as Members of the Standing Committee. On the Standing committee, being constituted, one of the Members of the Standing Committee has to be elected to the post of the Chairman. Under section 21 of the Bombay Provincial Municipal Corporation Act, 1949, the Standing committee, at its first meeting, after its appointment, shall, from amongst one of its members, appoint one of them to be the Chairman and the Chairman shall hold office until successor has been appointed and or ceases to be a member of the Committee. On 18-10-2003, meeting of the Standing committee was convened for 29-10-2003 for the purpose of electing the chairman. On the date of convening of the meeting, the Municipal Commissioner was absent and the Acting Commissioner was present. There are some averments to the effect that the petitioners had raised objections to the effect that the petitioners had raised objections to the Acting Commissioner's functioning. Those may not be relevant for disposing of the petition. Two nomination papers were filed. Both were accepted in the scrutiny held. The elections of the post of the Chairman was to be held at 11. 30 a. m. on 29-10-2003. The Acting Municipal Commissioner called upon all the members to elect one amongst themselves to act as Chairperson, for the purpose of conducting the elections. According to the petitioners, this was highly improper as, it was the first meeting of the Standing Committee and it had to be presided over by the Commissioner of Municipal Corporation, Jalgaon. The Standing Committee was divided with 8 members, supporting one name and the other 8 supporting the other. It is the case of the petitioners, that thereafter, they requested the Commissioner of Jalgaon City Municipal Corporationer that in terms of the provisions of section 65 of the Representation of the People Act, 1951. Since the candidates had got equal votes, then the Presiding Officer can be elected by drawing lots and the further election programme can be proceeded with. Petitioners' case is that the Commissioner, without adopting the said method, refused to exercise his power, to elect Presiding Officer and adjourned the meeting till the afternoon on the same day. At 3. 00 p. m. , when all the members of the standing Committee were present the Acting Commissioner, instead of presiding over the meeting as per agenda and instead of exercising the powers under law, declared that since Presiding Officer was not elected by the Members of the Standing Committee, the meeting was declared to have been over at 4. 25 p. m. There are various other averments, to which we at this stage, need not advert to. Writ Petition No. 4526 of 2003 is by a group of four other Corporators, who have been elected to the Standing Committee and claim a right to be elected to the post of Chairperson of the Standing Committee. The grievance raised by the petitioners here, is similar to that raised by writ petitioners in Writ Petition No. 4525 of 2003.

(2.) ON behalf of the petitioners, their learned Counsel contends that if the provisions of the Act and the Rules are read together, at the first meeting of the Standing Committee, for the purpose of electing the Chairperson of the Standing Committee, the Municipal Commissioner has to preside over the meeting. In the instant case, there is failure by the Chairperson and considering that, a direction should go to the Chairperson to summon a meeting of the Standing Committee to elect the Chairperson. On the other hand, on behalf of both the contesting respondents as well as the public authorities, their learned Counsel contended that meeting could not have been presided over by the Municipal Commissioner. According to the Rules, the only power that the Commissioner had, is to summon the meeting. The Municipal Commissioner has summoned the meeting. The meeting has to be presided over by one of the members of the standing Committee. In the instant case, there was failure to elect Chairperson for the meeting. In the case of failure, the Act itself provides a remedy whereby all the elected Councillors have a right to participate in the election of the Chairman of the Standing Committee. In these circumstances, it is submitted that the relief, as prayed for, ought not be granted.

(3.) WE may consider a few provisions of the Bombay Provincial Municipal corporation Act, 1949 and the Rules framed thereunder to the extend, they are necessary, for the purpose to finding out whether the Municipal commissioner had acted aqcording to law, in calling the members of the standing Committee to elect the Chairperson for the purpose of conducting the meeting. In so far as the Standing Committee is concerned, section 20, sub-section (2), states that Corporation shall at its first meeting, after general elections, appoint 16 persons out of its own body to be members of standing Committee. This step has been taken and 16 persons have been elected at the first meeting, after the holding of general elections. The next relevant provision is section 21. Section 21, sub-section (1) provides that the Standing Committee shall at its first meeting after its appointment under sub-section (2) of section 20 and at its first meeting in the same month in each succeeding year appoint one of its own member to be the chairman. Under sub-section (4), if any casual vacancy occurs in the office of the Chairman, the Standing Committee shall, as soon as conveniently may be after the occurrence of the vacancy appoint one amongst them to fill such vacancy and every Chairman so appointed shall continue in office so long as the person in whose place he is appointed would have held it if such vacancy had not occurred. In sub-section (5), it is provided that for any reason the Standing Committee does not appoint the Chairman under sub-section (1) or (4), within a period of thirty days from the date of its appointment under sub-section (2) of section 20, or from the date following the date of retirement of one half of the members specified in sub-section (3) of that section, or from the date on which a casual vacancy occurs in the office of Chairman, as the case may be. the appointment of the Chairman, after the expiry of the said period, shall be made by the Corporation, from amongst the members of the Standing Committee, at a special meeting called and held for the purpose within fifteen days from the expiry of the said period of thirty days. At such meeting, the question shall be decided by majority of votes of the Councillors present and voting and if there be an equality of votes, the presiding authority shall have and exercise a second or casting vote. Every Chairman so appointed, shall continue in office so long only as the Chairman appointed by the Standing Committee would have continued in office. We have then Rules under Schedule "d" of which the relevant Rules in the matter of holding meetings, are in Chapter II. In so far as the Standing Committee is concerned, relevant Rule is Rule 3. Under Rule 3, the first meeting of each Standing Committee, shall be held on a day and time to be fixed by the Commissioner and if not held on that day, shall be held on subsequent day, to be fixed by the Commissioner and every subsequent meeting shall be held on such day and at such time, as the said committee from time to time determines. Under Rule 3 (e), every meeting of the standing Committee shall be presided over by the Chairman, if the Chairman is present at the time appointed for holding the meeting and if the chairman is absent by such one of the members present as may be chosen by the meeting to be Chairman for the occasion. On the reading of these Rules, in under Schedule D what is clear is that the first meeting of the Standing Committee has to be held on the day and the time, to be fixed by the Commissioner. The only question is whether the expressions 'holding', "fixing day and time," are to be read, to mean that it is the Commissioner, who shall preside over the meeting. We have earlier adverted to section 20 wherein it is set out that the Corporation shall appoint 16 persons to be the members of the Standing Committee. In the instant case, the Standing Committee has been constituted section 21 then sets out that if the Standing Committee, at the first meeting, after its appointment under section 20, appoint one of its members to be the Chairman. Considering the Act and the provisions, it is the members of Standing Committee that must elect the Chairman. The expression appointment, in the context, would mean election from amongst those, who are eligible in the event, there is no unanimity. Once, if the Standing Committee that has to elect Chairman, is it possible to hold that for the purpose of such election, it is the Commissioner, who shall preside over the meeting the Standing Committee consists of the members. The Commissioner is not part of the Standing Committee. In so far the Rules for the purpose of the first meeting in order to summon the members of the Standing Committee, power has been conferred on the Commissioner to call the first meeting by fixing the date and time. The Rule further contemplates that the subsequent meetings are to be fixed by the Committee itself. In other words, procedural formality of summoning and calling the members of the committee to meet on the first occasion, has been conferred on the Municipal Commissioner. Apart from that, no other power has been conferred. The other aspect of the matter is that the Standing Committee normally holds office until successors are appointed. Any casual vacancy in the office of Chairman has to be filled in once again by the members of the Standing Committee. What this would mean is that in so far as the language of the statute is concerned, the statute has not contemplated any right in the Municipal Commissioner to preside over the meeting of the Standing Committee. The reason perhaps is because the Committee stands constituted on the Councillors, electing 16 amongst the Councillors to constitute the Standing Committee. In our opinion, therefore, once the power is of the Standing Committee to elect one amongst its member, such election has to be held by the members themselves. The power conferred on Commissioner to convene meeting and fix the date, cannot include the power to preside over the meeting unless there is specific statutory provision in the statute enabling the Commissioner to preside over the meeting. The Act does not contain any provision to that effect. If the Act does not contain a provision, the Rules cannot confer such power. Rules, which have been framed, are only to give effect for the purpose of summoning the first meeting of the Standing Committee. We are of the opinion therefore, that, the procedure adopted by the Acting Municipal Commissioner to call the members of Standing Committee to elect a Chairperson to preside over the meeting to elect the Chairman, cannot be faulted. Apart from that, it is not possible to consider any other cognate legislation, including representation of the People Act, for the purpose of holding, as to who shall preside over the meeting and whether foss of coin is the proper choice. The fact remains that in the absence of unanimity amongst the members, it is the house, which will elect the Chairman according to section 21 (5 ). That being the case, we are of the opinion that the procedure followed by the acting Municipal Commissioner, is not contrary to the law.