Narendra Jagannath Sonawane vs The State of Maharashtra and Others

V.A. Naik, J—Rule. Rule made returnable forthwith. The Petition is heard finally, with the consent of the learned counsel for the parties.

By this Petition, the petitioner impugns the resolution passed in the Special Meeting of the respondent no. 2/Corporation dated 28th July, 2014 appointing the respondent nos. 4 to 6 as the members on the Standing Committee and the respondent nos. 6 to 8 as the Members on the Women and Children Welfare Committee.

Few facts giving rise to the petition are stated thus-

The election results of the respondent no. 2/Corporation were declared on 15th April, 2012 and admittedly the petitioner and the respondent nos. 3 to 8 were elected as Councillors from their respective wards. Admittedly, Teesra Mahaz was a recognized political party and 19 councillors from the party known as Teesra Mahaz were elected as councillors in the election. After the declaration of the results, a notification was issued by the Commissioner, Municipal Corporation, Malegaon on 31st May, 2012 mentioning therein the names of the elected councillors and the parties to which they belonged.

It is the case of the petitioner that after the declaration of the election results on 15th April, 2012, 19 councillors of the Teesra Mahaz party, 3 independent councillors and 1 councillor of Samajwadi Party formed a post poll aghadi, namely, Malegaon Third Front. It is the case of the petitioner that the petitioner was elected as a Gat Neta of the Front and intimation in regard to the formation of the aghadi or front was given to the Divisional Commissioner, Nashik. It is the case of the petitioners that the formation of the aghadi or front was recorded in the register in Form No. IV as per Rule 5 of the Maharashtra Local Authority Members'' Disqualification Rules, 1987 read with the provisions of Section 31A of the Bombay Provincial Municipal Corporations Act, 1949. While making the appointment of the councillors on the various committees under Section 31A of the Act of 1949 by nomination, the petitioner, as a Gat Neta of the Aghadi or Front had during the past two years nominated the members as Gat Neta of the Aghadi. Though at the relevant time, during the past two years, the respondent no. 4, also claiming to be the Gat Neta of the Teesra Mahaz party had tried to nominate the councillors of his choice, the Mayor had declined to accept the nomination submitted by the respondent no. 4. According to the petitioner, surprisingly, during the third year, i.e. sometime in the month of July, 2014, the Mayor accepted the packet tendered by the respondent no. 4, as a Gat Neta of Teesra Mahaz party, containing the names of the councillors for nomination on the various committees, by ignoring the existence of the Malegaon Third Front, that was duly registered. According to the petitioner, though there was nothing on record to show that Teesra Mahaz party was registered under Rule 5 of the Disqualification Rules after the declaration of the results and after the issuance of the notification on 31st May, 2012 and though there was material on record in the form of communication issued by the Municipal Commissioner informing the respondent no. 4 in June, 2012 that Teesra Mahaz party cannot be registered under Rule 5 as Malegaon Third Front was already registered in view of the provisions of Rule 5 of the Rules, the Mayor accepted the names submitted by the respondent no. 4 and refused to accept the names tendered by the petitioner for nomination, while appointing the respondent nos. 4 to 6 as Members of the Standing Committee and respondent nos. 6 to 8 as members of the Women and Children Welfare Committee.

Mr. Dhakephalkar, the learned senior counsel for the petitioner took this Court through the various documents annexed to the petition, namely, the communication signed by the petitioner and the respondent nos. 4, 5, 7 & 8 as also the other councillors who had formed the Malegaon Third Front for registration of the same; the regulations of the Front; the approval by the members of the Teesra Mahaz party the three independent councillors and one councillor of the Samajwadi party to the appointment of the petitioner as Gat Neta of the Front; the communication issued by the Divisional Commissioner, Nashik dated 2nd June, 2012 informing the petitioner that the names of the members of the Aghadi have been registered as required by the provisions of Rule 5 of the Disqualification Rules, 1987 in Form IV; the communication issued by the Divisional Commissioner to the respondent no. 4 that the Teesra Mahaz party cannot be registered as such, as the Malegaon Third Front has been registered in terms of Rule 5 of the Disqualification Rules, 1987. It is stated that in view of the voluminous record, it was not proper on the part of the Mayor to accept the names of councillors suggested by the respondent no. 4 for nomination of members on the Standing Committee and the Women and Children Welfare Committee and rejecting the names of councillors suggested by the petitioner. It is stated that there is nothing on record to show that Teesra Mahaz party was recorded in the register as per Rule 5 of the Disqualification Rules, 1987 and despite the said position, the Mayor proceeded to nominate the councillors suggested by the respondent no. 4 for the reasons best known to him.

Mr. Vashi, the learned senior counsel for respondent nos. 3 and 6 submitted that after the declaration of the results on 15th April, 2012, the Municipal Commissioner issued the notification on 31st May, 2012 mentioning the names of the elected councillors and the parties to which they belonged. It is stated that 19 councillors were elected from Teesra Mahaz party. It is stated that the Malegaon Third Front was not formed and the same could not have been formed after the issuance of the notification dated 31st May, 2012 by the Commissioner of the Municipal Corporation, Malegaon. It is stated that the Mayor rightly considered this aspect of the matter while nominating the councillors suggested by the respondent no. 4 and refusing to nominate the councillors suggested by the petitioner on the two committees.

Mr. Ronghe, the learned counsel for the respondent nos. 7 and 8 supported the order of the Mayor and submitted that this Court may refuse to consider the issue involved in this case, as there is a factual dispute in regard to the formation of the Malegaon Third Front or Aghadi. The learned counsel relied on the judgment of this Court, reported in Madan Bodulaji Bhargad and Others Vs. Akola Municipal Corporation and Others, (2011) 5 BomCR 336 : (2011) 2 MhLj 302 in this regard. It is submitted that an Aghadi or front can be formed under section 31A of the Bombay Provincial Municipal Corporations Act, 1949 only within a period of one month from the issuance of the notification of election results. It is stated that the Malegaon Third Front/Aghadi was not formed within a period of one month from the date of notification of election results on 31st May, 2012. and was formed even before the issuance of the notification on 31st May, 2012. The learned counsel relied on the provisions of Section 31A of the Act and the judgment reported in Jeevan Chandrabhan Idnani and Another Vs. Divisional Commissioner, Konkan Bhavan and Others, AIR 2012 SC 1210 : (2012) 2 JT 133 : (2012) 3 RCR(Civil) 715 : (2012) 2 SCALE 48 : (2012) 2 SCC 794 : (2012) AIRSCW 1299 : (2012) 1 Supreme 622 to substantiate his submission.

Mr. Kohli, the learned counsel for the respondent nos. 4 and 5 also supported the order of the Mayor. It is stated that an aghadi or front could have been formed within one month from the date of notification of the election results and in this case, the aghadi or front is formed before the election results were notified. It is stated that an aghadi or front was formed in this case on 15th April, 2012 and the election results were notified on 31st May, 2012. It is submitted that Teesra Mahaz party was a recognized political party and it was registered as such on 16th March, 2012 by the Election Commission. It is stated that since the Teesra Mahaz party was a recognized political party, the aghadi or front could not have been formed.

On hearing the learned counsel for the parties and on perusal of the provisions of the Act as also the various documents annexed to the petition and the reply filed on behalf of the respective respondents, it appears that the Mayor committed a serious error in nominating the councillors suggested by respondent no. 4 on the Standing Committee and on the Women and Children Welfare Committee while refusing to nominate the councillors of the petitioner''s choice. Admittedly, Teesra Mahaz party is a recognized political party. Several councillors contested the general election to the respondent no. 2/Municipal Corporation on the tickets from the Teesra Mahaz Party. In all, 19 councillors of the Teesra Mahaz party were elected. It is equally true that it is for the recognized political party to get itself registered under Rule 5 of the Disqualification Rules, 1987 or form a post poll aghadi or front with the help of councillors belonging to other political parties or independent councillors. There is nothing on record to show that Teesra Mahaz party was registered by the Commissioner as per Rule 5 of the Disqualification rules. It is no doubt true that an effort was made by the respondent no. 4 to get Teesra Mahaz party registered under Rule 5 of the Disqualification Rules after the declaration of the election results. There is, however, nothing on record to show that Teesra Mahaz party was registered under Rule 5 of the Disqualification Rules, 1987 after the elections. In fact, there is a communication addressed by the Municipal Commissioner to the respondent no. 4 that the Teesra Mahaz party cannot be registered under Rule 5 of the Disqualification Rules, 1987 as per his request, as the request made by the petitioner as a Gat Neta of the Malegaon Third Front to register the same has been accepted and the names of the members of the front have been registered in Form IV as per Rule 5 of the Disqualification Rules, 1987. The Commissioner also informed the petitioner by the communication dated 2nd June, 2012 that the Malegaon Third Front was registered as per Rule 5 of the Disqualification Rules in Form No. IV of the Register. The petitioner has annexed the application submitted by the petitioner to the Commissioner to register the Malegaon Third Front to this petition and on perusal of the same, it appears that the said application was signed by the 19 councillors of the Teesra Mahaz party, 3 independent councillors and one councillor of the Samajwadi party. Though it is categorically averred in the petition that all the councillors of the Teesra Mahaz party including the respondent no. 4 had sworn the affidavits and signed the application for registration of the post poll aghadi, there is no denial of the said fact. It is thus clear from the documents annexed to the petition that after the declaration of the results on 15th April, 2012, the councillors of Teesra Mahaz party, the three independent councillors and a councillor of the Samajwadi party formed a post poll aghadi and it was registered as such as per the provisions of Rule 5 of the Disqualification Rules, 1987. The respondents have not tendered any document on record to show that after the declaration of the results, the Teesra Mahaz party was registered under the provisions of Rule 5 of the Disqualification Rules, 1987. What is required, is the registration of a party or an aghadi after the declaration of the results and not a recognition of the party before the parties went to the poll. We find that there was nothing before the Mayor to hold that Teesra Mahaz party was registered under Rule 5 of the Disqualification Rules, 1987 after the declaration of the results on 15th April, 2012. Even on this date, none of the respondents are in a position to point out any document showing the registration of the Teesra Mahaz party under Rule 5 of the Disqualification Rules after the declaration of the results of the election on 15th April, 2012. The submission made on behalf of the respondent nos. 4, 5, 7 and 8 that the aghadi could not have been formed before the declaration of the election results by the notification is fallacious and is liable to be rejected. The second proviso to Section 31A of the Bombay Provincial Municipal Corporations Act, 1949 reads thus:

"Provided further that, for the purpose of deciding the relative strength of the recognized parties or registered parties or groups under this Act, the recognized parties or registered parties or groups, or elected Councillors not belonging to any such party or group may, notwithstanding anything contained in the Maharashtra Local Authority Members'' Disqualification Act, 1986(Mah. XX of 1987) within a period of one month from the date of notification of election results, form the aghadi or front and, on its registration, the provisions of the said Act shall apply to the members of such aghadi or front, as if it is a registered pre-poll aghadi or front."

The second proviso clearly stipulates that for the purpose of deciding the relative strength of the recognized parties or registered parties or groups under the Act of 1949, the aghadi or front or group should have been formed within a period of one month from the date of notification of the election results. There is nothing in the second proviso which prevents the recognized political parties or elected councillors from forming the post poll aghadi or front after the declaration of the results but before the issuance of notification of the same. The second proviso only provides that the aghadi or front should be formed within a period of one month from the date of the notification of the results. In the instant case, after the declaration of the results on 15th April, 2012, the councillors of Teesra Mahaz, the three independent councillors and one councillor of the Samajwadi party decided to form the post poll aghadi or front and informed the Commissioner about the formation thereof. It is also noteworthy that during the past two years, the Mayor had considered the Malegaon Third Front as a recognized aghadi or front and had declined to nominate the councillors on the request of the respondent no. 4 on the ground that the Malegaon Third Front was registered under Rule 5 of the Disqualification Rules, 1987, whereas the Teesra Mahaz party was not registered as such. We find no justification whatsoever in the action of the Mayor in nominating the councillors on the Standing Committee and the Women and Children Welfare Committee at the request of the respondent no. 4. The action is clearly illegal and is liable to be set aside.

In view of the aforesaid, the Writ Petition is allowed. The impugned order dated 28th July, 2014 is quashed and set aside. Rule is made absolute in terms of prayer clause (a). In the facts of the case, there would be no order as to costs.

At this stage, the learned counsel for the respondent nos. 3 to 8 pray that this judgment be stayed for a period of four weeks. The learned counsel for the petitioner strongly opposes the prayer. In the glaring facts of this case, we reject the prayer made on behalf of respondent nos. 3 to 8.