BABURAO GOVINDRAO SHIRBHATE Vs. COLLECTOR AMRAVATI

JUDGEMENT

(1.) By the present petition the petitioner seek relief inter alia that the co-option of Councillors to the Amravati Municipal Council which met to co-opt six Councillors on December 30, 1974, should be declared illegal upon finding that the rejection of the nomination of the petitioner Nos. 2 to 5 for that co-option is vitiated being arbitrary, mala fide as well lacking in authority in law relevant for that purpose. We may mention that in the prayer there is also a challenge to the legality of the provisions of Section 9 (1) of the Maharashtra Municipalities Act 1965 and it is prayed that it should be declared ultra vires. Petitioner No. 1 seeks to approach this Court mainly as the elected councillor of the said Municipal Council while others rest their right upon the fact they were duly nominated candidates for co-option and feel aggrieved by the decision taken by the respondent No. 2 acting as Presiding Authority in rejecting their nominations on the ground that they lack the qualification or otherwise are not eligible under Section 9 of the Act to be the co-opted Councilors. The procedure with regard to co-option is regulated by the Maharashtra Municipal Council (Co- option of Councillors) Rules, 1967 which prima facie permits calling for nominations , its scrutiny by the presiding authority and further voting by single transferable vote system. Petitioner claim that the co-option has been brought about in disregard and in violation of these rules.

(2.) Now few facts which are not in dispute and necessary to state for the purpose of our present premises are that the constitution of the Amravati Municipal Council was taken up by holding an election of 60 members in November 1974 under the provisions of Maharashtra Municipalities Act. 1965. Section 9 requires and contemplates co-option of member; Initially a notice of meeting as required by Section 9 (1) of the Act to co-opt 6 members to the Council was issued on December 19, 1974 and process of co-option was completed in the meeting of December 30, 1974. For the purpose of this cooption was competed in the meeting of December 30, 1974. For the purpose of this co-option nominations were called for and in the scrutiny the presiding authority, respondent No. 2 rejected the nominations of Sarvashri B.S. Pund (petitioner No. 2). S.B. Nagar (petitioner No. 4) K.M. Joshi, Afsal Hussain and G.L. Mudgal (petitioner No. 3) After withdrawal, 6 persons remained in the field and they were declared without any voting to have been co-opted. It may be mentioned that petitioners do challenged the motives of respondent No. 2 in adjourning the meeting earlier called and further challenge the correctness of the proceedings as recorded.

(3.) Special Civil Application No. 1 of 1975 was immediately filed in this Court on January 1, 1975 challenging all these steps and eventual process of co-option and we get from the record of that petition that as many as 25 councillors including present petitioner No. 1 were the petitioner in that petition. That petition (Spl Civil Appl. No. 1 of 1975 (Bom). Prabhakar v. Collector, Amravati) came up for hearing eventually and the Division Bench of this Court (Chandurkar and Dharmadhikar, JJ. ) by its order of 13-2-1975. dismissed the same holding that no relief could be given in the said petition for in that coopted Councillors who were entitled to justify co-option on all possible grounds were not made parties thereto. It appears from that order that request was made to grant time to join the co-opted Councillors as parties to the petition but the Court specifically refused the same. It was pointed out there that the said petition has been pending since January 1975 and since the holding of elections of the Councillors considerable time had elapsed and the council is not being duly constituted, such a belated prayer cannot be granted. It was also observed that aggrieved petitioners had also an alternate remedy of the petition as provided by Section 21 of the Maharashtra Municipalities Act. In the result, therefore the Division Bench of this Court, discharged the rule in that matter which raised substantially the same challenge that is now being agitated before us once again in the present petition. It cannot be disputed that the present petitioners are seeking the same said relief which was substantially sought in the earlier petition, though by 25 Councillors who were petitioners in earlier petition are not parties, so also all those who participated in the meeting of cooption. Respondents arrayed including the persons duly declared as co-opted being respondents Nos. 4 to 9 . As indicated above there being additional prayer in the present petition regarding the vires of Section 9 of the Act. State is added as party -respondent No. 10.