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Judgment
The above Writ Petition is fled by the Petitioner for the following reliefs :
“(a) Rule be issued and record and proceedings be called for.
(b) This Hon’ble Court be pleased to issue Writ of Certiorari or any other appropriate writ in the nature of Writ of Certiorari and thereby be
pleased to quash and set aside the impugned decision dated 09.04.2020 passed in the illegally and unauthorisedly convened meeting of Council of
Ministers, thereby recommending the name of Respondent No. 2 for being nominated as Member of Legislative Council by in terms of Article 171 (3)
(e) of Constitution of India.
(c) Pending hearing and fnal disposal of the present Writ Petition, this Hon’ble Court be pleased to stay the efect, implementation and / or
execution of the impugned decision dated 09.04.2020 passed in the illegally and unauthorisedly convened meeting of Council of Ministers, thereby
recommending the name of Respondent No. 2 for being nominated as Member of Legislative Council by in terms of Article 171 (3) (e) of Constitution
of India.â€
According to the Petitioner, he is a social worker and an acclaimed sportsman. He is also afliated to Bhartiya Janata Party (BJP) and at present he
is a member of the Working Committee of BJP in the State of Maharashtra.
The State of Maharashtra through its Chief Secretary is arrayed as Respondent No.1. Respondent No. 2 â€" Shri Udhhav Bal Thackeray, is at
present the Chief Minister of the State of Maharashtra. Respondent No. 3 is the Hon’ble Governor of State of Maharashtra. Respondent No. 4
â€" Shri Ajit Anant Pawar is presently the Deputy Chief Minister and Cabinet Minister (Finance) of the State of Maharashtra.
By the present Writ Petition, the Petitioner has challenged the decision dated 9th April, 2020 passed by the Council of Ministers thereby
recommending the name of Respondent No. 2 for being nominated as a member of the Legislative Council in terms of Article 173 (3) (e) of the
Constitution of India.
The relevant facts and provisions of law are in brief set out hereunder :
5.1. That the General Assembly Elections in the State of Maharashtra were held by the State Election Commissioner on 21st October, 2019.
5.2. That on 28th November, 2019 the Respondent No. 2 - Shri Udhhav Bal Thackeray came to be elected as Chief Minister of the State of
Maharashtra.
5.3. Respondent No. 2 - Shri Udhhav Bal Thackeray, who is elected as Chief Minister of the State of Maharashtra is admittedly not a Member of the
State Legislative Assembly or the State Legislative Council. He is required to be a Member of either of the houses before expiry of six months from
the date of his appointment i.e. on or before 28th May, 2020, failing which he shall cease to be the Chief Minister / Minister under Article 164 (4) of
the Constitution of India.
5.4. Article 171 of the Constitution of India pertains to the composition of legislative councils. Clause (1) of Article 171 provides that the total number
of members in the Legislative Council of a State having such a Council shall not exceed (one-third) of the total number of members in the Legislative
Assembly of that State and further provides that the total number of members in the Legislative Council of a State shall in no case be less than forty.
Clause (2) of Article 171 makes it clear that until Parliament by law otherwise provides, the composition of the Legislative Council of a State shall be
as provided in Clause (3) of Article 171. Sub Clauses (a) to (d) of Clause (3) of Article 171 prescribe the number of persons to be elected to the
Legislative Council, whilst Clause (e) of Article 171 provides nomination of the remainder by the Governor in accordance with the provisions of
Clause (5). Clause (5) of Article 171 provides that the members to be nominated by the Governor under Sub Clause (e) of Clause (3) shall consist of
persons having special knowledge or practical experience in respect of matters such as literature, science, art, co-operative movement and social
service.
5.5. Article 163 of Constitution of India reads thus :
“163. Council of Ministers to aid and advise Governor. - (1) There shall be a Council of Ministers with the Chief Minister at the head to aid and
advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of
them in his discretion.
(2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his
discretion, the decision of the Governor in his discretion shall be fnal, and the validity of anything done by the Governor shall not be called in question
on the ground that he ought or ought not to have acted in his discretion
(3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any Court.â€
5.6. That on 9th April, 2020 a meeting of the Council of Ministers was held under the chairmanship of Respondent No. 4 - Shri Ajit Anant Pawar, who
is the Deputy Chief Minister, at which meeting it was decided to recommend to the Hon’ble Governor that Respondent No. 2 - Shri Udhhav Bal
Thackeray be nominated as Member of the Legislative Council on one of the two seats that are vacant as on date under Article 171 (3) (e) of the
Constitution of India. The reason recorded for such proposal, was that on account of the pandemic, it is unlikely that the elections for Legislative
Council would be held.
The Petitioner has by the above Writ Petition impugned the said decision / proposal dated 9th April, 2020 taken by the Council of Ministers inter alia
on the following grounds :
i. That the purported meeting was held under the chairmanship of Respondent No. 4 â€" Shri Ajit Anant Pawar, Deputy Chief Minister, State of
Maharashtra, though the Chief Minister had not delegated the power to preside over the meeting of the Cabinet Ministers held on 9th April, 2020 in
favour of any Minister including the Deputy Chief Minister
ii. That the Chief Minister was not present in the meeting though he was not incapacitated in any manner to convene and preside over the meeting of
Cabinet Ministers.
iii. That the concept of Deputy Chief Minister is not at all constitutionally recognised and in fact the Division Bench of this Court has in in the case of
Devidas Venkatarao Pawar Versus Gopinath Munde, reported in 1995 (2) Mah LJ 711 specifcally held that describing any Minister as Deputy Chief
Minister was only descriptive. Therefore, the meeting dated 9th April, 2020 and the consequent decision and recommendation for nomination is itself
fawed being illegal and bad in the eyes of law.
iv. That the Sate of Maharashtra promulgated the Maharashtra Government Business Rules as per the mandate of Article 166 (3) of Constitution of
India. Further as per Rule 15, it is specifcally contemplated that appropriate Instructions, in support of these Rules, can be issued by the Hon’ble
Governor on advice of the Chief Minister. Accordingly, various Instructions have been issued from time to time. However, as set out in the Petition
the meeting dated 9th April, 2020 was held in contravention of the said Rules and instructions.
v. That in spite of the above aspect being brought to the notice of Respondent No. 1 vide representation / objection dated 12th April, 2020 issued in the
nature of Press Release, the authorities have not applied their judicious mind.
vi. That since the decision dated 9th April, 2020 is by the Council of the Ministers itself, the Petitioner apprehends legal malafdes and no fruitful
purpose will be served by approaching the State Authorities.
vii. That the impugned decision dated 9th April, 2020 is not only dehors the provisions of the Rules, but the same is a result of legal and factual
malafdes, which warrants judicial review of the impugned decision / advice dated 9th April, 2020 in exercise of the extraordinary jurisdiction vested in
this Court under Article of 226 of
The learned Advocate General for the State of Maharashtra has raised the plea of maintainability of the present Writ Petition, which plea is kept
open since the Writ Petition is not admitted and / or disposed of fnally today.
I have considered the submissions made in the Writ Petition and also by the learned Senior Advocate appearing for the Petitioner and the learned
Advocate General for the State of Maharashtra. The nomination of a member under Sub Clause (e) of Clause (3) of Article 171 of the Constitution of
India read with Clause (5) of that Article is a function to be exercised by the Hon’ble Governor. Under Article 163 of the Constitution of India, the
Council of Ministers aid and advise the Hon’ble Governor for such exercise. What the Council of Ministers have done here is giving such aid and
advice of appointing Respondent No. 2 - Shri Udhhav Bal Thackeray as member of the Legislative Council in terms of Article 171 (3) (e) of the
Constitution of India. They have thus made a proposal / recommendation to the Hon’ble Governor to use the power conferred upon him under
Article 171 (3) (e) of the Constitution of India and appoint Respondent No. 2 - Shri Udhhav Bal Thackeray as a member of the Legislative Council of
the State of Maharashtra. The Petitioner himself has averred in para 2 of the Petition that the Hon’ble Governor is bound “only by the valid aid
and advice of Council of Ministers as per the constitutional mandate.†The Hon’ble Governor has till date not taken any decision qua the proposal
/ recommendation received / to be received from the Council of Ministers. The Hon’ble Governor whilst considering the proposal /
recommendation of the Council of Ministers is expected to consider whether the proposal / recommendation received from the Council of Ministers is
valid in law. In my view, the Court’s interference at this stage is not at all required since any such interference at this stage would amount to
preventing the Hon’ble Governor from taking an independent decision inter alia qua the validity of the proposal received by him. The reliefs sought
in the Writ Petition therefore appear to be premature. The Petitioner at this stage is not entitled to any urgent reliefs.
This order will be digitally signed by the Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed
copy of this order.