JUDGMENT
A. P. Shah, J.
1. Rule. Respondents waive service. By consent petitions are taken for final hearing.
2. These writ petitions under Article 226 can be conveniently disposed of by a common order since they all pertain to elections to the Ward Committees of Thane Municipal Corporation under Section 29A of the Bombay Provincial Municipal Corporations Act, 1949, herein-after referred to as the ‘Act’.
3. By the Constitution 74th Amendment Act of 1992, Parliament introduced part 9A to the Constitution with the object to promote and strengthen the concept of self government at local level and decentralisation of power. Article 243-S provides for constitution of Wards Committees in all municipalities having population of more than three lacs. Pursuant to the mandate of Article 243-S, State Legislature has introduced Section 29A in the Act by Maharashtra Act 41 of 1994. Section 29A inter alia provides as follows :
“29-A : Constitution of Wards Committees;
1) In every city, there shall be constituted Wards Committees comprising
of such contiguous elected wards as may be decided by the Corporation,
in accordance with the following table :
Population
Minimum number of wards committees
Additional wards committees for addl. population
Maximum number of wards committees
Above 3 lacs and upto 4.5 lacs
3
4
Above 4.5 lacs and upto 12 lacs
4
1,50,000
9
Above 12 lacs upto 24 lacs
9
3,00,000
13
Above 24 lacs
13
6,00,000
25
(2) Each Wards Committees shall consist of-
a) the councillors representing the electoral wards within the territorial area of the Wards Committee.
b) the officer-in-charge of the territorial area of the Wards Committee.
c) such number of other members not exceeding three, nominated by the
Councillors referred to in Clause (a), from amongst the members of
recognised non-Government Organisations and Community based
organisations engaged in social welfare activities working within the area
of the Wards Committee.
Provided that such persons are registered as electors in the wards within
the jurisdiction of the Wards Committees.
Provided further that the norms for recognition of the Non-Government
Organisations, the requisite qualification for nomination as members and
the manner in which they are to be nominated shall be such as the State
Government may prescribe.
3) The duration of the Wards Committees shall be conterminous with the
duration of the Corporation.
4) The elected Councillors referred to in Clause (a) of Sub-section (2) shall at the first meeting of the Wards Committee in each official year elect, from amongst themselves the Chairperson who shall hold office until the first meeting in the next following official year.
5…….
6…….
7) The functions of the Wards Committee shall subject to the general supervision and control of the Corporation, be-
a) the speedy redressal of common grievances of citizens, connected with local and essential municipal services like water supply, drainage, sanitation and storm water disposal.
b) to consider and make recommendations on the proposals regarding estimates of expenditure pertaining to the wards under different heads of account of the budget before being forwarded to the Commissioner
c) to grant administrative approval and financial sanction to the plans for municipal works to be carried out within the territorial area of the Wards Committee costing upto rupees five lacs provided that specific provision exists therefor in the budget sanctioned by the Corporation.
8 ……..
9……..”
4. As seen from the provisions of Sub-section (7) of Section 29A the object of setting up of Wards Committees is to give speedy redressal of grievances of citizens connected with essential municipal services and to consider and recommend proposals regarding estimates of expenditure pertaining to the wards and to grant financial approval for municipal works to be carried in the territorial area of the ward subject to the limit specified in the said section.
5. The facts and circumstances leading to these petitions are these. The term of the previous body of the Thane Municipal Corporation came to end on 28-2-2002 and from March 2002 a new general body of the Corporation has started functioning. As per 2001 census the population within the territory of Thane Municipal Corporation is more than 12 lakhs and, therefore, 9 Ward Committees are liable to be constituted in accordance with Section 29A of the said Act. It may be mentioned that previously there were 7 Wards Committees as the population was less than 12 lacs. On 20-2-2002 the general body of the corporation passed Resolution No. 541 whereby it was resolved to constitute 9 Wards Committees instead of 7 Wards Committees. It was resolved that following two additional Wards Committees be constituted :
i) Chitalsar-Manpada Wards Committee. ii) Shahu Market Wards Committee
It may be noted that although number of Wards Committees was increased from 7 to 9 no decision was taken in respect of territorial limits of these Wards Committees.
6. By letter dated 16-3-2002 the State Government granted stay to the Resolution No. 541 until further orders and directed the Commissioner of Thane Municipal Corporation to submit report to the State Government. It was mentioned in the said letter that the State Election Commission has issued instructions, not to take major decisions as the elections to the municipal corporation are declared. However, in the affidavit in reply filed on behalf of the State Government it is admitted that the decision to stay the Resolution No. 541 was taken on account of representation made by Deoram Bhoir and Subhash Kanade belonging to Indian National Congress.
7. The duration of the Wards Committees is conterminous with the duration of the Corporation as provided by Sub-section (3) of Section 29A .Therefore, the term of the earlier Wards Committees expired in March 2002 and Wards Committees ceased to exist. As a result of stay granted by the State Government vide letter dated 16-3-2002, election of the Wards Committee, could not be held. The State Government did not vacate stay which was granted. Therefore meetings of the leaders and office bearers of different parties in the Municipal Corporation were held and a consensus was arrived at between all the parties relating to the formation of the Wards Committees. Accordingly a resolution being Resolution No. 130A was unanimously passed on 19-6-2002 in the general body meeting of the Corporation whereby 9 Wards Committees were constituted as follows :
Sr. No.
Name of Ward Committee
Ward No.
Total Wards
1.
Chitalsar-Manpada
1, 2, 3, 24
4
2.
Vartaknagar
22, 23, 32, 33
4
3.
Railadevi
19, 20, 21, 31
4
4.
Wagle Estate
15, 16, 17, 18, 30
5
5.
Uthalsar
25, 26, 34, 35, 38
5
6.
Naupada
27, 28, 29, 36, 37
5
7.
Kopri
12, 13, 14
3
8.
Kalwa
4, 10, 11
3
9.
Mumbra
5, 6. 7, 8, 9
5
8. Pursuant to the said Resolution No. 130A programme for election of chairpersons of the said 9 Wards Committees was published. As per the said programme 8-7-2002 was fixed for filing of the nomination papers and 10-7-2002 was the date fixed for withdrawal of nominations. Elections were scheduled to be held on 11-7-2002 and on 10-7-2002 the Corporation published a list of validly nominated candidates for the post of chairpersons of the 9 Wards Committees. By letter dated 11-7-2002 the Desk Officer of the Urban Development Department informed the Commissioner that the Chief Minister has stayed the Resolution No. 130A dated 19-6-2002.
9. Aggrieved by the Order passed by the Chief Minister some of the
councillors filed Writ Petition No. 4674 of 2002 and copy of the writ petition was
served in the office of the Additional Government Pleader, Appellate Side, on
30-7-2002. By order dated 2-8-2002 the Chief Minister vacated the stay while
directing that Ward No. 24 which is included in Chitalsar-Manpada Ward
Committee should form part of Vartaknagar Ward Committee and Ward No. 23 which forms part of Vartaknagar Ward Committee should be included in Chitalsar-Manpada Ward Committee. This order is purported to have been passed in exercise of powers under Section 451(3) of the Act. Writ Petition No. 4674 of 2002 was then amended by the petitioners and the order of the Chief Minister dated 2-8-2002 was also challenged. Thereafter Writ Petition No. 4789 of 2002 and 4151 of 2002 were filed challenging the orders passed by the Chief Minister. In Writ Petition No. 4157 of 2002 in addition to the challenge to the order of the Chief Minister, the validity of Resolution No. 130A is also challenged contending that the election to the Ward Committees ought to be held as per the earlier Resolution No. 541.
10. We have heard Mr Oka, Mr Pradhan and Mr. Kulkarni, learned counsel appearing for the petitioners in these petitions, Ms Pawar learned AGP for the State Government, and Mr. Apte appearing for the Municipal Corporation and Mr. Limaye for the Interveners.
11. The learned counsel for the petitioners strenuously contended that the impugned order of the Chief Minister is patently illegal and is politically motivated. It is urged that Section 451 of the Act is not attracted in the facts and circumstances of the present case and the modification of the Wards Committees was ordered only to ensure that the councillor belonging to Nationalist Congress Party or Indian National Congress should become chairperson of Vartaknagar Wards Committee. It is alleged that the Chief Minister belongs to Indian National Congress and is heading the coalition ministry of which Nationalist Congress Party and Indian National Congress are members. It is pointed out that as per Resolution No. 130A Chitalsar-Manpada Ward Committee consists of Ward Nos. 1, 2, 3 and 24 and out of total 12 councillors from the said Wards, six belong to National Congress Party, four belong to Indian National Congress and two belong to Shivsena. Whereas Vartaknagar Wards Committee consists of Ward Nos. 22, 23, 32 and 33 and out of 12 councillors from the said Wards, 4 belong to National Congress Party, 4 belong to Shivsena, 3 belong to Janvikas Aghadi and 1 to Republic Party. Thus in Vartaknagar Wards Committee National Congress and Indian National Congress are in minority whereas in Chitalsar-Manpada Wards Committee the said two parties are having 10 councillors out of 12. What is done by the impugned order is that Ward No. 24 having 3 councillors belonging to National Congress Party has been shifted to Vartaknagar Wards Committee and Ward No. 23 having 3 councillors of Janvikas Aghadi has been shifted to Chitalsar-Manpada Wards Committee so that Chairperson of both the Ward Committees would be of their party. It is therefore alleged that the impugned order is totally mala fide and politically motivated.
12. Ms Pawar learned AGP appearing for the State Government and the Chief Minister, in reply stated that the State Government has made minor changes in the Wards Committees i.e. by placing Ward No. 24 in place of 23 in Vartaknagar Ward Committee and vice versa and by doing so the State Government has avoided inconvenience to the public at large. She stated that Mr. Jitendra Awhad MLC has made a representation to the Chief Minister and pursuant to the said representation a meeting of all the concerned parties was called and decision to effect minor change to the Wards Committees was taken. She submitted that the State Government is fully empowered to issue such direction under Section 451 of the said Act. Mr. Limaye for the Interveners supported the decision of the State Government.
13. Having given our anxious consideration to the rival submissions at the Bar, in our view it is not possible to sustain the action of the Chief Minister directing modification to the Wards Committees. Ms. Pawar tried to justify the action on the ground that the State Government has power to make such modifications as it deems fit under Section 451 of the Act. A bare reading of the said section shows that this contention is ill founded. Section 451 of the Act reads as under :
“451. Power of (State) Government to suspend or rescind any resolution or order, etc of Corporation or other authority in certain cases.
1) If the State Government is of opinion that the execution of any resolution or order of the Corporation or any other authority or that the doing of any act which is about to be done or is being done by or on behalf of the Corporation or such authority is in contravention of or in excess of the powers conferred by or under this Act or any other law for the time being in force, or is likely to lead to a breach of the peace or to cause injury or annoyance to the public or any class or body of persons, or is likely to lead to abuse or misuse of or to cause waste of municipal funds against the interests of the public, the State Government may, by order in writing suspend the execution of such resolution or order or prohibit the doing of any such act, for such period or periods as it may specify therein. A copy of such order shall be sent forthwith by the State Government to the Corporation and to the Commissioner or the Transport Manager.
2)…….
3)…….
4)……”
14. It is obvious that the State Government can act under the above section only when the Corporation has acted in contravention of or in excess of the powers conferred by Act or any other law for the time being in force, or the action of the Corporation is likely to lead to breach of peace or to cause injury or annoyance to the public or is likely to lead to abuse or misuse of or to cause waste of municipal funds against the interests of the public. None of these parameters are satisfied in the present case. All that is stated by the State Government in its affidavit in reply is that minor modifications are made in order to avoid inconvenience to public. No particulars/ details are furnished as to how such alterations/modification would serve the cause of public. Moreover the allegation made by the petitioners that this was done to ensure election of their party man to the office of the Chairperson in Vartaknagar Wards Committee, was not even controverted in the affidavit in reply. We are therefore constrained to observe that the impugned action of the Chief Minister is clearly illegal and motivated. On a plain reading of Section 29A it is seen that the power to constitute Wards Committees is conferred on the Corporation. The State Government is not at all entitled to interfere with the constitution of Wards Committees made by the Corporation on the so called ground of inconvenience to the public especially when the resolution is unanimous. Section 29A is enacted pursuant to the constitutional mandate of Article 243S with a view to ensure speedy redressal of grievances of the citizens relating to essential amenities like water supply, drainage, sanitation, etc. and the power of the Corporation to constitute such Committees cannot be allowed to tampered by the State authorities to suit their ends or for political gains. In our opinion the impugned order of the Chief Minister is wholly uncalled for and tends to defeat the very object of Section 29A. We have therefore no hesitation to hold that the impugned communication dated 2-8-2002 is illegal and without jurisdiction and deserves to be set aside.
15. Mr. Kulkarni contended that Resolution No. 130A is contrary to law as the subject of constitution of Wards Committees was not on the agenda of the meeting and resolution was passed in violation of the rules. He submitted that where statute prescribes manner in which powers have to be exercised, same should be followed. He relied upon the decisions in J. N. Ganatra v. Morvi Municipality Morvi Babu Verghese and and Ors. v. Bar Council of Kerala and Ors.. . He therefore submitted that the election to the Wards Committees should be held in accordance with the Resolution No. 541. We are unable to accept this submission for more than one reason. In the first place Resolution No, 541 merely increases the number of Wards Committees from 7 to 9. It does not lay down territorial limits of the wards. Moreover Resolution No. 130A was passed by the Corporation unanimously by consent of all political parties and it is not permissible to interfere with this unanimous resolution of the Corporation on a technical plea of breach of rules relating to meetings. The Wards Committees are constituted for the purpose of tackling the problems of the citizens in a speedy and efficient manner. The election to the Wards Committees is already delayed due to orders passed by the State Government and accepting Mr Kulkarni’s contention would mean further delaying the process of constitution of Wards Committees.
16. In the result, the impugned communication dated 2-8-2002 is quashed and set aside. The Municipal Commissioner is directed to hold election of the Wards Committees from the stage where the programme was stopped by virtue of the order of the Chief Minister. The Municipal Commissioner shall complete the programme within two weeks from today.
17. Mr. Kulkarni asks for stay of this order. Request is rejected.
18. All the parties concerned to act on the ordinary copy of this order duly authenticated by the Personal Secretary of this court.