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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Writ Petition No.22 of 2009
Sau. Sujata wife of Deorao Ahir,
aged about 38 years,
occupation Corporator,
resident of Ward No.44, Krishinagar,
Akola, Tq. & Distt. Akola. .... Petitioner.
ig Versus
1. The Akola Municipal Corporation,
Akola, through its Commissioner.
2. The Divisional Commissioner,
Amravati Division,
Amravati.
3. Mahadeo son of Bhaiyyalal Bundele,
aged about adult,
occupation Member of Akola
Municipal Corporation, Akola,
resident of Ward No.43,
Vrindavannagar, Akola,
Tq. & Distt. Akola.
4. Bharip Bahujan Mahasangh,
Akola,
Distt. Unit, through
its Distt. President -
Shri Haridas Bhade,
resident of Dwarkanagari,
Jawahar Nagar,
Akola, Tq. & Distt.
Akola.
5. Bharip Bahujan Mahasangh,
Municipal Party in Akola,
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Municipal Corporation through
its Leader Shri Sunil
Tukaramji Meshram,
R/o Ward No.14, Siddarthnagar,
Akola, Tq. & Distt. Akola. .... Respondents.
*****
Mr. A.M. Gordey, Adv., for the petitioner.
Mr. Anup Dhore, Adv., for Respondent No.1.
Mr. M.A. Vaishnav, Adv., for respondent no.3 [absent].
Mr. G.G. Mishra, Adv., for respondent nos. 4 and 5
[absent]. ig *****
CORAM : A.H. JOSHI AND
A.R. JOSHI, JJ.
Date : 21st November,2009.
ORAL JUDGMENT [Per A.H. Joshi, J]:
1. Rule. Rule is made returnable forthwith. Heard
finally by consent.
2. Facts can be briefly described as follows:-
[a] Petitioner is one amongst the group
of Councilors belonging to
respondent no.5, who is a section of
Respondent no.4 Bharip Bahujan
Mahasangh, Akola.
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[b] Admittedly, the respondent no.3 is
the Group Leader of the PoliticalParty in Corporation respondent
no.5.
[c] It is seen that the Party Leader of
the Respondent No.4 a political
party – directed the respondent no.3by letter dated 25th February, 2008
[Annex.IV], to nominate thepetitioner as a Member of Standing
Committee.
[d] This letter [Annex.IV] is regarded
by the petitioner to be a whip as
noted therein.
[e] Respondent No.3, who is a Group
Leader, has nominated himself by
letter dated 26th Feb., 2008[Annex.V] in disregard of whip
[Annex.IV].
[f] Based on the nomination done through
Annexure-V, the respondent no.3 has
been nominated on the Standing
Committee by the respondent nos. 1
and 2.
3. The petitioner has challenged Annexure-V own
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nomination by Respondent No.3 in this petition and as a
result, has prayed for the relief, which reads as
follows:-
(a) by an appropriate writ, order and/or
direction, direct the respondent no.
1-Akola Municipal Corporation,Akola, and the respondent no.2-
Divisional Commissioner, Amravati
Division, Amravati, to delete the
name of the respondent no.3 as a
Member of the Standing Committee ofthe respondent no.1 Akola
Municipal Corporation, Akola, andaccept the name of the petitioner as
a Member of the Standing Committee
of the respondent no.1- Akola
Municipal Corporation, Akola, inpursuance of the communication dtd.
26/2/2008 (Annexure-VIII).
[Quoted from page 20 of the Writ Petition paper-book].
4. Foundation of the prayer is based on
petitioner s construction of Sub-section (2) of Section
31A of the Bombay Provincial Municipal Corporations
Act, 1949. Section 31A is quoted below for ready
reference as follows:-
31A Appointment by nomination on
Committees to be by proportional
representation –
(1) 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::: Downloaded on – 09/06/2013 15:20:08 :::
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Councillor to any Committee shall be by
virtue of his holding any office,appointment of Councillors to these
Committees, whether in regular or casualvacancies, 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
under section 31.
Committee appointed
(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 may be, in proportion to the strengthof such parties or groups in the
Corporation, after consulting the Leaderof the House, the Leader of Opposition
and the leader of each such party or
group;
Provided…………
Provided further……………
(3) If any question arises as regards
the number of Councillors to be nominated
on behalf of such party or group, thedecision of the Corporation shall be
final.
[Note : Provisos to Sub-Section (2) are not quoted,
as those are not relevant.]
5. Petitioner s construction of Sub-clause (2)
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quoted above, is that said Section lays down that the
Councillors, who are members of a party or a group,
will have to elect or nominate in accordance with the
whip.
6. Learned Advocate for the petitioner has
further argued that:-
[a] The whip given by the party to the
Respondent No.3 was, in fact, givento all members of the respondent no.4.
In the result, had the respondent no.4observed democratic process and would
have called the meeting, the party
whip was bound to be obeyed and therespondent no.3 was under obligation
to nominate the petitioner.
[b] Had the democratic process been
followed by the respondent no.3, hewould have been devoid of personal
power and authority to nominate
himself as a candidate other than one
who may be elected in accordance withthe whip, i.e., the petitioner.
7. Learned Adv., for the petitioner has placed
reliance on following reported judgments to support his
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contention:-
[a] Dattabhau son of Annasaheb Pathrikar Vs.
State of Mah. [2007 (3) Mh.L.J. 76], and
[b] Narendra Gota Pardesi Vs. Mayor, Dhule
Municipal Corporation, Dule & ors. [2007 (6)
Mh.L.J. 216].
8. Perusal of Judgments discloses that these
cases arose out of the matter of election of the Leader
of Opposition. ig As per the law applicable, it was a
case of numerical counting, and does not govern the
situation as emerging in present case.
9. The language used in Section 31A (2)
authorises nomination of Councillor on the Committee
in following two stages:-
First – ascertaining proportion or
number of members to be
nominated, based on the
strength of each registered or
recognised party or group.
Second – consulting Leader of House,
the Leader of Opposition and
the Leader of each such party
or group to nominate the
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Committee.
10. The term each such party or group seen in
first stage indicated in the foregoing para shall have
to be construed to be the rule directing the procedure
for ascertaining number of nominations available per
party or group. This is certainly a numerical job.
11.
Second stage in paragraph no.9 relates to the
process of actual nomination.
12. What is seen contemplated for second stage in
Section 31A (2) is the consultation as contemplated
therein which reads as follows:-
after consulting the Leader of the House,
the Leader of Opposition and the leader of
each such party or group.
This process of consultation, thus, lays down
that the nomination is upon indication of a name to be
a member of the Committee nominated/assented by the
Leader of the group or party concerned.
13. It is seen from what has emerged from analysis
of first stage is that the consultation with Leader of
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House and Leader of Opposition is bare consultative,
and directory in nature. It is not decisive of name of
the person to be nominated/deleted.
14. What is seen decisive is consultation with the
Leader of a political party or of the group who has
power to nominate.
15.
Reading of the Sub-section (2) of Section 33A
of the said Act does not disclose that it lays down a
scheme of nomination to be decided on number of members
of group or party. The narration stops at consultation,
and that too with leader only and not with the
members of the party or group .
Had the terminology employed in Sub-section
(2)of Section 31A aforesaid been Party or Group only
than the group of words Leader of party or group ,
in that case, even in absence of description of
elective process, the member to be nominated was liable
to be elected by democratic process, as consultation
was bound to be with members, which may have meant
voting. However, elective process is neither expressed
or implied.
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16. It is seen that petitioner has impleaded the
respondent nos. 4 and 5, however, it appears that the
person or persons in the harness of the party do not
favour the factual matter and legal propositions on
which the petitioner has a very strong thrust and
faith.
17. In
the present case, admittedly,
no.3 is a leader. He has preferred to nominate himself.
respondent
Petitioner did not array other councillors from her
group as respondents, which may have at least indicated
that whether the democracy in her party is on the side
of the petitioner.
18. It is, thus, clear that scheme of the Act does
not provide for democratic elective process. What is
not expressed in statute, cannot be infused by a
judicial act.
19. Petitioner s claim is, therefore, without any
foundation of a right in the statute, has no merit, and
is rejected.
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20. Rule is discharged. In the circumstances,
parties shall bear own costs.
JUDGE JUDGE
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