JAYRAM TOLAJI SHINDE Vs. SECRETARY URBAN DEVELOPMENT DEPARTMENT

JUDGEMENT

(1.) ON 8th July 2008 the Government passed an order staying the election to the office of Chairman of the Standing Committee of the Nashik Municipal Corporation which was scheduled for 11th July, 2008. The Writ Petition No.5287 of 2008 has been filed challenging this order. Consequent to this Order, another order was passed on 31st July, 2008 by which Resolution No.302 dated 3rd July, 2008 was partially suspended to the extent of appointment of the petitioner to the Standing Committee. This order was subsequently challenged by Writ Petition No.5857 of 2008. The petitioners and the respondents in both the writ petitions are same. Therefore, both the writ petitions are being heard and disposed of by common judgment and order. For facts, Writ Petition No.5857 of 2008 which is more comprehensive and later in point of time, will be taken note of.

(2.) THE petitioner contended that he was elected as a Corporator of Nashik Municipal Corporation during the election held on 1st February, 2007. The total seats for the Municipal Corporation are 108. After the election results were published in the Official Gazette on 8th February, 2007, no party had majority. Therefore, a Front / Aghadi was formed with the 56 councilors. The petitioner claimed that he was one of the members of such group. The Government, in the meantime, issued Maharashtra Ordinance No.2/2007 amending Section 31 of the Bombay Provincial Municipal Corporation Act by adding new Section 31A. In its first meeting held on 7th April, 2007, 16 members were appointed / nominated on the Standing Committee unanimously. In accordance with the programe of election of Chairman to the Standing Committee, the election was scheduled to be held on 13th April, 2007. On 10th April, 2007 the Corporation received a fax message from the Government stating that the appointment of councilors to the standing committee has not been done in accordance with the provisions of section 31A of the Bombay Provincial Corporation Act and Rules. One of the members of the Standing Committee Shri Sharad Koshire filed writ petition being Writ Petition No.2622 of 2007. Another Councilor Shri Vasant N. Gite and others also filed writ petition being Writ Petition No.2564 of 2007 challenging the appointment made by the Mayor to the Standing Committee. The other Councilors Prakash Londhe and others also filed a writ petition being Writ Petition No.2587 of 2007. All these writ petitions came to be heard and decided by common judgment and order passed on 30th April, 2007. This Court by the said order directed the Municipal Corporation to commence the process of nomination to the Standing Committee a fresh. In accordance with the direction given by the Court, respondent No.2 thereafter declared that election would be held on 12th June, 2007. Accordingly, the election has been held and 16 members were elected as per the directions of the Honourable Court. On the very next day i.e. on 13th June, 2007 the petitioners came to know that the Government had stayed the election. Shri Sharad Koshire filed a writ petition being Writ Petition No.4655 of 2007. Government appeared before the Court on 22nd June, 2007 and made a statement that the Government would withdraw the said letter. On the basis of this statement made by the Government, the writ petition was disposed of as infructuous. After withdrawal of the said letter, the election of Chairman to the Standing Committee was held on 30th June, 2007 and Shri Sharad Koshire the petitioner in Writ Petition No.2622 of 2007 was elected as Chairman to the Standing Committee. It is further submitted that in terms of Section 20(3) of the Bombay Provincial Municipal Corporation Act, 1949 one half of the members of the standing committee gets retired every succeeding year. As per the provisions, 8 members, namely, 3 belonging to Congress party; 1 belonging to R. Congress; 1 belonging to B.J.P.; 2 belonging to Shiv Sena and 1 belonging to B.S.P., retired on 27th May, 2008. In place of retired members, new members had to be nominated. Therefore, a meeting was called on 3rd June, 2008 and 8 members were appointed unanimously in place of retired 8 members. From Congress 3 members were nominated and there is no dispute with regard to this nomination. From R. Congress 1 member was nominated as per the earlier standing. B.J.P. and B.S.P. also got nominated 1 member each. But bone of contention is the nomination of the petitioner against the quota which was meant for Shiv Sena. In the earlier committee Shiv Sena had 3 members whereas in the new committee only 1 member was appointed from Shiv Sena and another was appointed i.e. Petitioner - Jayram Shinde. He was appointed from the quota of Shiv Sena although he belonged to S.K.P. After this nomination, this petitioner wanted to contest the election of Chairman and he came to know that the Corporation had received a message that the Government had stayed the election till further orders. Then, he filed the Writ Petition No.5287 of 2008. In the meantime the impugned order was also passed, which was challenged in this writ petition.

(3.) THE case of the petitioner is that, admittedly, Shiv Sena was entitled to 3 seats in the Committee and in case they had no objection to his nomination, the nomination could not be held bad because in terms of Section 31A of the Bombay Provincial Municipal Corporations Act, the parties in effect have a right to nominate the members on the basis of their relative strength and Shiv Sena was a recognised party. In the counter affidavit filed by the Deputy Secretary to Government, Urban Development Department, it has been stated that in terms of Section 20(3) of the Act, the members who had to retire included 2 from Shiv Sena; 3 from Indian National Congress, 1 from Nationalist Congress Party, 1 from Bhartiya Janata Party and 1 from Bahujan Samaj Party and to replace these members the Corporation vide its Resolution No.302 nominated 3 members from Indian National Congress, 1 from Nationalist Congress Party, 1 from Bhartiya Janata Party, 1 from Shiv Sena, 1 from Bahusjan Samaj Party and 1 from Peasant Workers' Party, who is the present petitioner. It is also pointed out that 8 members; 1 belonging to Peasant Workers Party, 1 belonging to Samajwadi Party, 2 belonging to LSP, 3 belonging to Bahujan Samaj Party and 1 independent tried to form an Aghadi and the request was made which was rejected by the Divisional Commissioner, Nashik by an order dated 24th June, 2008. This application was rejected on the ground that the application was not made within the time prescribed. The case of the respondents is that since the nominations have to be made on the principle of proportional representation, if a member like the petitioner who is not qualified to represent could not be even nominated on the basis that some other party had no objection. It is submitted by the learned Counsel for the respondents that the principle underlying Section 31A is that the party who got mandate from the people should be represented on the committee in proportion to the mandate it has. If the Shiv Sena nominates 2 members to the Committee and in place of a member belonging to Shiv Sena it nominates a person who does not belong to Shiv Sena would be in contravention of the principle of proportional representation and would also be in contravention of law relating to defection. Therefore, the Government submitted that the nomination of Sri Shinde was not in accordance with the principle of proportional representation system and also against the mandate of Maharashtra Local Authority Members' Disqualification Rules, 1987.