DEEP NARAYANA CHAVAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BOTH these writ petitions, by mutual consent of the parties and taking into consideration the importance of the issue involved, were taken up for hearing expeditiously. By mutual consent, Rule was made returnable forthwith and the matters were argued before us daily afternoon from 28-7-2006 onwards.

(2.) TWO gentlemen - Deep and Sandip (Sandeep), claiming /believing that each of them is the only duly elected Mayor of the corporation of City of Ahmednagar, have approached this Court, praying to invoke its plenary jurisdiction under Article 226 of the constitution of India, in his favour and against the other. Each petitioner is respondent no. 6 in the other petition. Respondent no. 7, in the first: writ petition, is said to be Deputy Mayor elected in a meeting on the same day i. e. 30-6-2006 wherein Sandeep claims to have been elected as Mayor. Respondent nos. 1 and 2, in both petitions, are State authorities, respondent nos. 3 and 4 are associated with the Corporation and respondent no. 5 - Shri. Bhagwan Fulsaunder (Fulsaunder) is the outgoing Mayor. We intend to reproduce the main prayers in both the writ petitions for ready reference. In Writ Petition No. 5146/2006, petitioner- Deep has prayed as follows :

(3.) FACTUAL matrix, to the extent the same is not disputed, can be narrated as follows: the Municipal Corporation of the City of Ahmednagar was constituted by a notification under Clause (2) of Article 243-Q of the Constitution on 30-6-2003. Formerly it was a Municipal Council and the Corporation was constituted for a larger urban area. Deep, sandeep (the two petitioners, henceforth are being referred to by their first names for the sake of brevity and convenience) and ex-Mayor shri. Bhagwan Fulsaunder, were elected councillors of the first Corporation in the elections held on 14-12-2003. It appears that shri. Fulsaunder was elected as first Mayor since constitution of the Corporation soon after first election of the Corporation (and Sihri. Dnyaneshwar Khandre was then elected as first deputy Mayor ). As per Section 19 (1) of the bombay Provincial Municipal Corporations Act, as amended by Section 3 of the Maharashtra act No. 25/2000, tenure of Mayor and Deputy mayor, being of two and half years, term of m/s. Fulsaunder and Khandre was to come to an end on 30-6-2006. Consequently, a special meeting was convened for electing new Mayor and Deputy Mayor on 30-6-2006. Copies of documents filed by two petitioners are common to quite considerable extent. Ordinarily we are referring to the documents from Writ Petition no. 5146/2006 and by page numbers of the documents in that writ petition, except for those documents, which we refer from Writ Petition no. 5376/2006, because copy of that document is not filed in Writ Petition No. 5146/2006. As can be seen from paper book pages 31 and 32 (Exhibit A), the notice dated 22-6-2006 was issued by Nagar Sachiv (Secretary - respondent no. 4) of the Corporation convening special meeting for election of new Mayor and Deputy mayor on Friday 30-6-2006 at 11 a. m. It was clearly stated in the notice that in the light of provisions of the Bombay Provincial Municipal corporations (Conduct of Elections to the office of Mayor and Deputy Mayor) Rules, 2005, the meeting shall be presided over by Shri. Bhagwan fulsaunder (outgoing Mayor) and the meeting for election of Deputy Mayor shall be presided over by newly elected Mayor. It is evident from this notice that elections of incumbents to the office of Mayor and Deputy Mayor was the only subject on the agenda. This notice was accompanied by election programme. The period 23-6-2006 to 26-6-2006 was fixed for obtaining nomination forms from the Secretary of the Corporation between 11 a. m. to 3 p. m. , of course by excluding holidays. The period for filing nominations also with the Secretary of the Corporation was congruent with the period of obtaining the nomination forms. Thus, nominations could be filed till 26-6-2006 by 3 p. m. It was indicated that scrutiny of the nominations will be made on the day of the meeting and immediately after commencement of the meeting, that there will be 15 minutes time after the scrutiny for withdrawal and the polling was scheduled to take place immediately after expiry of the time for withdrawal, if there were more than one candidates in the fray. As can be seen from Exhibit B (paper book page 33), 6 candidates had totally filed 9 nomination papers. Deep had filed 2, Sandeep had filed 3 and there were 4 others, who had filed one nomination each. What happened at the meeting immediately after it commenced at 11 a. m. , according to the version of Deep, is depicted in the minutes, copies of which are filed at paper book pages 51 and 52. Exhibit E (page 51) is minute of the meeting, as prepared and signed by outgoing Mayor Shri. Fulsaunder and this is also borrowed in the proceeding book of the corporation. Exhibit F (page 52) is further minute of the meeting, as prepared by petitioner deep. It is common ground that this Exhibit F is not borrowed in the proceeding book of the corporation. As per Exhibit E, which can be said to be the version of outgoing Mayor regarding how the meeting proceeded, the meeting commenced at 11 a. m. Deputy commissioner, who was in-charge commissioner, read over rules to the House (presumably 2005 Rules ). Thereafter, scrutiny of the nominations was carried. Both nominations of petitioner Deep were found valid. So far as nomination of four others namely anant Joshi, Bahirnath Wakle, Anil Borude and suresh Shelke, their nominations were held invalid by observing that the proposers and seconders on these nomination papers had given letters on 29-6-2006 itself informing that they have not signed those nominations. We have perused these original letters and the description in the minute is wrong. On reference to such communication dated 29-6-2006 by one Sanjay fulchand Chopda, he has narrated that he has signed the nomination form for the election of mayor filled in by Shelke Suresh Chhaburao, but he has signed it through oversight. He has, therefore, requested that the nomination form may be cancelled. (Thus, this is not a case where signatures were denied, but signatories claimed to have signed through oversight ). So far as nomination of Sandeep is concerned, Shri. Fulsaunder has recorded that on the basis of written complaint by Deep that nominations of sandeep were invalid, the nominations of sandeep were held invalid. It is recorded that written complaints were received against nomination of Sandeep from Deep and 4 other councillors. In other words, Presiding Officer appears to have accepted the contentions in the written complaint of Deep as sufficient grounds to hold the nominations of Sandeep to be invalid. The minute is concluded by observing that since nomination of Deep alone remained to be the valid nomination, being single candidate in the fray, he was declared elected Mayor and thereafter Shri. Fulsaunder handed over the charge to the newly elected Mayor Deep narayan Chavan. So far as minute prepared by petitioner deep (Exhibit F), he has recorded that when the charge was handed over to the newly elected mayor (i. e. Deep himself) by the outgoing mayor, some Councillors started shouting and also physical violence (R> T aptfcl ). In the same chaotic condition, Presiding Officer declared election of Deputy Mayor, bedlam in the House reached to the highest pitch and it became difficult to conduct the meeting. It was atmosphere of insecurity for female Councillors. Hence, taking into consideration such state of affairs, the Presiding Officer adjourned the meeting for 3 days without conducting the same for election of Deputy Mayor. As already stated hereinabove, this minute prepared by Deep is not recorded in the proceeding book of the corporation, which is produced for our inspection. What happened on the same day at and after 4 p. m. can be gathered from the contentions raised by Sandeep and the same is evident from paper book pages 53 to 57. It appears that ex-Mayor, newly elected Mayor and some Councillors left the House. It is the claim of Sandeep that outgoing Mayor left the venue without completing the procedure of election of new Mayor. As the rules did not permit cancellation or adjournment of the meeting, Sunil proposed Namdeo Pawar to be the Presiding Officer. The proposal was seconded by Councillor Vijay Gavale. Therefore, as per unanimous view, Shri. Namdeo Pawar acted as Presiding Officer since 4 p. m. On reference of pages 53 to 57, it is evident that shri. Namdeo Pawar is said to have carried out scrutiny of the nomination papers and he found nomination papers of all 6 candidates to be valid. (On perusal of original papers, we have noticed that an endorsement to that effect is recorded on each nomination paper by Shri. Pawar ). 15 minutes time was granted for withdrawal from 4. 15 p. m. onwards and after expiry of these 15 minutes, Presiding Officer invited the members to vote in favour of Sandeep Kotkar. As per rules, the voting is by raising of hands and the names of persons voting in favour of particular candidate are required to be recorded in the proceeding book. 37 Councillors voted in favour of Sandeep and their names were accordingly recorded. Thereafter, Presiding Officer also called out names of Deep Chavan, Anant Joshi, anil Borude, Bahirnath Wakle and Suresh shelke in that order. It is recorded that notbody voted in favour of these 5 candidates. A list of 24 Councillors is recorded indicating that they were absent at the time of voting. This list includes all these 5 candidates as also ex-Mayor and ex-Deputy Mayor Shri. Khandre. 4 councillors are recorded to be absent far the meeting. This completes the tally of 65 councillors; 37, who voted in favour of sandeep; 24, who were absent when the voting took place for election of Sandeep, and 4, who were totally absent. The minute also indicates that after this election, Sandeep took over as new Mayor and conducted the election for new deputy Mayor during which respondent no. 7 deepak Sul was elected practically by the same procedure as in the case of election for Mayor. From above narration, it remains undisputed position that meeting, which commenced at 11 a. m. had a hick-up within half an hour andlthen the meeting resumed at 4 p. m. What must have happened in the intervening period is evident from paper book page 255. This is an application submitted to the Commissioner by Sandeep. However, it is signed by as many as 37 councillors including Sandeep. By this application, these Councillors have requested the Commissioner to complete the election process by appointing senior Councillor as presiding Officer. It is informed that the meeting commenced at 11 a. m. under the chairmanship of outgoing Mayor Shri. Fulsaunder. He did not inform the House as to how many nominations were received. While carrying out scrutiny, he did not allow the candidates an opportunity to explain, he did not take any entry in the proceeding book about nominations received or regarding the objections. He did not sign anywhere in the proceeding book and he left the venue without completing election process. It is informed that the election for Mayor has not at all taken place. In the concluding para, it is alleged that Shri. Fulsaunder belongs to Shiv sena and he has support of BJP. Deep Chavan, being a candidate for the office of Mayor on behalf of Shiv Sena - BJP Alliance, Shri. Fulsaunder declared rejection of nomination of sandeep without giving any reason and left the venue by declaring that Deep Chavan was elected. It is also alleged that proceeding of this meeting is not recorded in the proceeding book and hence the things recorded in video cassette will not be legally admissible in evidence. The application is concluded by saying that Shri. Fulsaunder left the meeting without electing the Mayor and with a prayer for carrying out the meeting further under the chairmanship of senior Councillor of the corporation. Some events occurred after these two elections of two Mayors, which can be gathered from paper book pages 58, 63 and 64. It appears that being confronted with unprecedented situation, the Commissioner wrote to Principal secretary (II), Urban Development Department, mantralaya, Bombay apprising him of all the events those took place on 30-6-2006. He also expressed his opinion in the communication to the effect that nominations can be rejected only on the grounds provided in Rule 6 (2) i. e. which do not comply with requirement of Rule 4, that outgoing Mayor departed from the venue by illegally declaring the result, he concluded the meeting in a defective manner and the remaining councillors concluded the meeting by electing shri. Namdeo Pawar, the senior most Councillor as Presiding Officer. He has expressed that election of Sandeep is as per rules of procedure and the part of the meeting conducted by Shri. Fulsaunder was illegal. He, therefore, requested for cancellation of the proceeding to the extent that was conducted by Shri. Fulsaunder. This communication was responded by Deputy secretary in the Department of Urban development vide communication dated 6-7-2006 (Exhibit I ). It is informed that the proceeding conducted by Shri. Fulsaunder can not be cancelled by exercising the powers u/ s. 451 of BPMC Act. He has advised the commissioner that the Commissioner is not bound to act upon illegal resolution and, therefore, he has directed the Commissioner to take action in accordance with belief and conviction of the Commissioner. The communication is concluded by advising that the Commissioner may seek legal advice from legal expert or Court, if deemed necessary. It is evident from Exhibit J (page 64) that the commissioner, on 10-7-2006 issued an order informing all concerned i. e. Principal Secretary in the Urban Development Department, collector, Ahmednagar; Superintendent of police, Ahmednagar, as also Sandeep, Deepak sul and Deep informing that Sandeep and deepak were elected as Mayor and Deputy mayor in a valid manner and in accordance with the rules.