Judgment:
S.B. Mhase and A.A. Kumbhakoni. JJ.
1. This petition is yet another case brought to this Court questioning recognition by a Mayor of a Municipal Corporation of a Municipal Councilor as 'a Leader of Opposition'. The petitioner also seeks writ of mandamus against the Mayor to recognise the petitioner, in place of the contesting respondent as a leader of opposition.
2. The facts of the case are very few and can be set out as under. The 1st respondent herein is the Municipal Corporation of the City of Pune, (hereinafter referred to as 'the Corporation' for the sake of brevity) incorporated under the provisions of Bombay Municipal Corporation Act, 1949 (hereinafter referred to as the 'said Act', for the sake of brevity). The 2nd respondent is the Commissioner of the said Corporation. 5th respondent is the Divisional Commissioner of Pune Revenue Division, Pune and the 6th respondent is the State.
3. The general elections for electing counselors, of the said Corporation was conducted on 14th February, 2007. The petitioner, 3rd & 4th respondents were elected as the counselors at this election. The total strength of counselors of the said Corporation is 144. The respective strength of counselors of various political parties is admittedly as under:
-------------------------------------------i) 41 National Congress Party (NCP)ii) 36 Indian National Congress (INC)iii) 25 Bharatiya Janata Party (BJP)iv) 20 Shiv Sena (SS)v) 08 Maharashtra Navnirman Sena (MNS)vi) 14 Independents (Ind.)-------------------------------------------144 Total.-------------------------------------------
The petitioner was elected as counselor from the INC. The 3rd respondent was elected from NCP and the 4th respondent was elected from BJP.
4. Admittedly, after the aforesaid elections the NCP along with 5 independent counselors registered Aghadi/Front with the 5th respondent the Divisional Commissioner under Section 31A of the said Act. Thus, total strength of this Aghadi of NCP works out to 46. Similarly, one more Aghadi/front was registered by the INC by including 8 independent counselors, thus, making total of this Aghadi/front of INC as 44.
5. In terms of Section 19 of the said Act, at the first meeting after the aforesaid General Elections, the 3rd respondent was elected as the Mayor. One Mr. Mokate (who is not a party to the present petition) belonging to SS, was elected as Dy. Mayor. Both of them secured 67 votes.
6. On 16th March 2007 the President of INC by way of written communication sought recognition of the petitioner as a leader of opposition. In this communication it is stated that Aghadi/front has been formed by INC along with 8 independent with total strength of 44 counselors. It is stated that BJP and SS had not formed alliance, in as much as the elections of the said Corporation are concerned. It is submitted that NCP counselor has been elected as a mayor and therefore, INC with 8 independent counselors who have formed the aforesaid Aghadi constitute 'the party in opposition having greatest numerical strength' and therefore, they are entitled to have their leader, the petitioner, to be recognised as a leader of opposition. 6. On the same day a communication was submitted to the 3rd respondent jointly by leaders of SS and BJP staking their claim for appointment of 4th respondent as leader of opposition. It is claimed therein that BJP, SS have been working as an alliance in the State of Maharashtra for the last 27 years and that they had contested 2007 election of the said Corporation jointly. It is claimed that on account of their combined strength, which is total 45, they constitute 'the party in opposition having greatest numerical strength' and therefore, they are entitled to have their leader, the 4th Respondent, to be recognised as a leader of opposition.
7. The 3rd respondent Mayor however issued a letter dated 17th March, 2007 to the 4th respondent as leader of BJP recognising him as the leader of opposition. It is pertinent to note that, this communication is issued on the sole and only basis that BJP and SS have formed an alliance and that their combined strength is 45. It is this decision and the communication which is in issue in the present matter.
8. The petitioner raised objection and also complained about the aforesaid impugned decision not only with the 3rd respondent Mayor, but also with the State Government. The 3rd respondent Mayor kept the matter pending with its office and kept on postponing consideration of the objections and/or complaints of the petitioner on one pretext or the other. However the State Government on 18th August, 2007 issued some kind of a resolution terming it as an order under Section 451 of the said Act, and suspended the aforesaid impugned decision of the Mayor.
9. Immediately upon the aforesaid decision of the State Government, the petitioner submitted a letter dated 21st August, 2007 again staking his claim for being recognised as the leader of opposition. A Writ Petition No. 6272 of 2007 came to be filed in this Court, questioning the aforesaid decision of the State Government, basically on the ground that the State Government had no role to play in this controversy, and the decision of the State Government was clearly without jurisdiction and/or any authority in law. A Division Bench of this Court on 20th September, 2007 was pleased to admit the petition and stay the operation and execution of the aforesaid resolution/decision of the State Government that is in issue in that petition.
10. During pendency of the aforesaid Writ Petition No. 6272 of 2007 the petitioner has filed the present Writ Petition, impugning directly the aforesaid decision of the Mayor. A Division Bench of this Court by its order dated 24th March, 2008 passed an order listing the present Writ Petition, after completion of the admission board, so that the petition can be disposed of finally at the admission stage itself. The parties were directed to complete the pleadings in the mean time. Since the parties have completed the pleadings, we have heard the matter at the admission stage itself for its final disposal on merits.
11. Hence, we grant Rule and make it returnable forthwith. Heard the Counsel appearing on behalf of the parties, by consent for final disposal of the petition at the admission stage itself.
12. The grounds on which the petitioner has impugned the decision of the 3rd respondent recognising the 4th respondent as the leader of opposition can be summarised as under. On the touch stone of democratic process only two separate groups i.e. ruling party and opposition party are recognised as two pillars, on which the entire edifice of the democracy rests. The leader of opposition ought to be a person belonging to a group, having largest support from the opposition members. The impugned decision is in breach of provisions of Section 19.IAA of the said Act and it wholly undemocratic as it cuts the very thread of democratic process, where two separate groups being opposition, ruling party are recognised and considered as pillars of governance. The alliance of BJP and SS was not recognised either prepoll or post poll, in as much as the elections of the said Corporation are concerned. It was therefore wholly impermissible and illegal for the 3rd respondent were to consider the combined strength of BJP and SS for determining the issue of party in opposition and recognising the leader of BJPSS combine as the leader of the opposition.
13. Affidavit in reply came to be filed by the Mayor, the 4th respondent, who is recognised as the leader of opposition by the impugned decision and by the State Government. In short the defences raised therein are as under. The State Government has filed three affidavits, supporting the case of the petitioner. It is contended that NCP and Shiv Sena supported the candidate of NCP for being elected as mayor, whereas the BJP remained neutral. The INC had sept up its candidate for being elected as Mayor who was defeated. It is further contended that INC is the opposition at the said Corporation, and therefore, it was necessary to recognise its leader as the leader of opposition. It is also further contended that BJPSS did not register any alliance prepoll or post poll, and therefore, the claim made by the 4th respondent as the leader of opposition on the basis of such non existing alliance could not have been accepted by the Mayor while taking the impugned decision. It is further pointed out that under Section 31A of the said Act, there were only two fronts/Aghadis, which were recognised viz. one was of the INC with 44 strength and the other one was of the NCP with 48 strength. The BJPSS have not formed such Aghadi and therefore, their combined strength could not have been considered.
14. The third respondent has opposed the petition by alleging two issues as to the maintainability of the petition and as to Our jurisdiction to try, entertain and decide the issue raised in this petition. The defence of the 3rd respondent is that the issue raised in the petition is a political question, which is not justiciable. In as much as the election of the Mayor is concerned, it is pointed out that under Section 19 of the said Act, irrespective of relative strength of all political parties, anybody can get elected as counselor and further as a Mayor. Therefore, election of Mayor cannot be considered as a criteria for deciding the status of any political party in the house, much less the ruling or opposition party, as such. It is contended that BJPSS had prepoll alliance and that this alliance has highest numerical strength in the House, and therefore, 4th respondent was rightly declared as the leader of opposition, who was set up by the said alliance.
15. The 4th respondent has opposed the petition on almost similar lines of defence as have been taken up by the State, as also the 3rd respondent. In addition thereto, it is contended that 'the leader of the opposition' term is required to be considered in the light of Section 2 of the Maharashtra Legislatures Salaries & Allowances Act, 1978. On that basis it is the case of the 4th respondent that explanation appended to Section 19IAA and the one to Section 2 aforesaid make it clear that recognition of the leader of opposition by the Mayor is final and conclusive, and therefore, it was beyond the scope of judicial review under Article 226 of the Constitution. It is contended that BJP and SS fought the elections in issue on the basis of common agenda and that in view of their prepoll alliance, the 4th respondent was rightly declared as the leader of the opposition by taking into consideration the collective strength of BJP and SS. Certain documents have been annexed to the affidavit of 4th respondent, in support of the claim that BJP and SS had formed pre poll alliance for contesting the elections in issue, held on 14th February, 2007.
16. The learned Counsel appearing on behalf of the 1st respondent has tendered certain documents for our perusal, which include an important document of election notification which gives the list of 144 elected counselors of the 1st respondent the Corporation, specifically mentioning the political party which had sept up each of them. A perusal of the same confirms the aforesaid table set out at the out set of this judgement indicating the relative strength of the respective political parties in the house of the said Corporation.
17. The issue raised in the present petition is truly not as to who is 'the leader' but is as to which is 'the party in opposition having greatest numerical strength' in the House of the first respondent Corporation. For determining this issue, we must first consider the provisions of Section 19-IA and 19-IAA of the said Act, which reads thus-
19.IA. Leader of House: [1] An elected Councillor who is, for the time being, the Leader of the Party having the greater numerical strength and recognised as such by the Mayor shall be the Leader of the House.
Explanation- When there are two parties in ruling, having the same numerical strength, the Mayor shall, having regard to the status of the Party, recognise the Leader of any one of such parties to be the Leader of the House.
[2] There shall be paid to the Leader of the House such honoraria and allowances and other facilities as may be provided by regulations made in this behalf by the Corporation.
19.IAA Leader of Opposition: [1] An elected Councillor who is, for the time being the Leader of the Party in opposition, having greatest numerical strength and recognised as such by the Mayor, shall be the Leader of the Opposition.
Explanation- Where there are two or more parties in the opposition, having the same numerical strength, the Mayor shall, having regard to the status of the party, recognise the Leader of any one of such parties as a Leader of the Opposition for the purposes of this Act and such recognition shall be final and disconclusive.
[2] There shall be paid to the Leader of the Opposition such honoraria and allowances and other facilities as may be provided by regulations made in this behalf by the Corporation.
18. The provisions of the Maharashtra Local Authority Members' Disqualification Act, the Rules framed thereunder and also the orders issued thereunder also may be relevant. In view of the various decisions of Division Benches of this Court, which are referred to here under, it may not be necessary for us to reproduce the same herein, as in our view it will unnecessarily over burden this judgment. Both the contesting parties relied on various reported decisions, summary of which with our comments as to their application, in the facts and circumstances of this case and especially to the issue involved herein are set out hereunder.
(i) Abdul Latif Muhammed Khatri v. State of Maharashtra reported in : 2006(1)MhLj786 and Sudhakar Waman Chavan v. State of Maharashtra reported in 2003 (3) Mh.L.J.631 These judgments really have no role to play in as much as the present case is concerned, as the issue involved therein was entirely different from the one involved in the present case. In those cases, the Court was really concerned with the question as to whether State Government can issue any direction in regard to the recognition of the leader of the opposition in the Municipal Corporation and as to whether the jurisdiction to decide such a question vests with the Mayor of the Corporation alone. In our view, in the present petition this issue does not arise at all. May be that the said issue will be relevant for deciding aforesaid Writ Petition No. 6272 of 2007, which is still pending in this Court. We therefore do not find appropriate to make any comment in that regard in this judgement.
(ii) Sunil Kotkar v. State of Maharashtra reported in 2004(4) Mh.L.J. 375.
In this case almost similar issues were involved and raised as are raised in the present case. However, it is pertinent to note that there is a clear distinguishing feature of this case that is absent in our case. In that case two political parties had equal strength of counselors and the Mayor in his wisdom and discretion, as contemplated by the aforesaid Explanation to Section 19.IAA recognised leader of one of such party, amongst the two parties having equal strength, as the leader of opposition. The learned Division Bench considered the entire legal aspect of the matter and held that in the limited judicial review available to this Court under Article 226 of the Constitution, the Court can not go and test the political issues, and therefore, was pleased to dismiss the petition.
19. At the outset we must note that this judgment will have no applicability whatsoever to the facts of our case because in that case explanation to Section 19.IAA was attracted as there were two political parties in opposition having same numerical strength. In our case, we do not have two political parties with equal strength, and therefore, the aforesaid explanation has no role to play at all. It is pertinent to note that in case of a situation to which aforesaid explanation applies, when a Mayor takes a decision for recognition of the Leader of Opposition, the Mayor is to have regard to the 'status of parties' amongst the two parties having equal strength of counselors. The explanation further states that such a recognition by the Mayor shall be final and conclusive. The finality and conclusiveness with which the recognition by the Mayor is clothed under the explanation, is not available to the recognition of a Mayor under Sub-clause (1) of Section 19.IAA of the said Act. In other words, the recognition by a Mayor of leader of opposition in a case where two or more political parties in opposition do not have same numerical strength, is not made final and conclusive under the said Act.
20. However, this Division Bench Judgment delivered in the case of Sunil Kotkar (Supra) deals extensively with the entire legal aspects of the matter and the case law on the subject which was then holding the field. We respectfully agree with the following conclusions drawn by the Division Bench, which are also applicable to our case:
In exercise of judicial review under Article 226 of the Constitution of India, to judge the action of Mayor, this Court is concerned with reviewing not the merit of the decision in support of which the petition for judicial review is made, but decision making process itself. Thus, the jurisdiction of this Court is confined to: (i) Whether Mayor exceeded his power? (ii) has committed an error of law; (iii) reached a decision which no reasonable person would have reached; (iv) Whether he has abused his powers.
The Gazette Notification issued in terms of Rule 39, Sub-rule (2) of the Election Rules, Schedule D of the Act being an authentic document can be considered to find out as to which political parties sponsored a Corporator in the elections of the Municipal Corporation.
Merely because two political parties have not sponsored candidates against each other in an election, it is not necessarily to drawn an inference that there was a prepoll alliance and/or Aghadi or Yuti between them. The prepoll alliance and/or Yuti and/or Aghadi is also a question of fact and has to be proved on the basis of legal evidence and even in a writ petition, such a fact can be proved by means of affidavits.
However, we do not agree with the following observations of the learned Division Bench, made in the case of Sunil Kotkar (Supra) at page 23 that....
As in the definition of the Leader of Opposition in Maharashtra Legislature Salaries and Allowances Act referred the term the party in opposition to the State Government. Therefore, we have to consider the word Leader of the party in opposition which means leader of party in opposition in the House (Corporation).
21. We may state here that the aforesaid observation of the learned Division Bench is per incurim of the legal position as is reflected by the judgment of the Supreme Court in the case of Union of India v. R.C. Jain and Ors. reported in : (1981)ILLJ402SC that This extract is taken from Union of India v. R.C. Jain : (1981)ILLJ402SC :
1. ...The definition of an expression in one Act must not be imported into another. 'It would be a new terror in the construction of Acts of Parliament if we were required to limit a word to an unnatural sense because in some Act which is not incorporated or referred to such an interpretation is given to it for the purposes of that Act alone' (per Loreburn, L.C. in Macbeth & Co. v. Chislett 1). For the same reason we refrain from borrowing upon the definition of 'local authority' in enactments such as the Cattle Trespass Act, 1871 etc. as the High Court has done.
22. However, this will not detain us in disposing of the petition in as much as the aforesaid observation has no role to play in the present case. A view taken one way or the other in this regard will not change the complexion of our conclusions drawn hereunder.
(ii) Vishnu Mhetre v. City of Akola Municipal Corporation reported in 2004(5) Bom. C.R. 847. The issues considered by the learned Division Bench in this case are set out in paragraph 30 of the judgment. A perusal of which clearly demonstrates that in our case none of these issues are involved, and therefore, in our view this judgment will not be of any assistance to us in answering the questions raised in the present case. In that case, these issues arose out of situation where there was a slit in a political party, which is not a case before us.
(iv) Rohidas Shankar Patil v. Maytra Gilbert Mendosa reported in : 2003(5)BomCR600 . The important feature of this case is that in this case there was no prepoll alliance between INC and NCP. In that background, the learned Division Bench was called upon to decide a question as to whether INC can be said to be a party in opposition. In the facts of that case which it is observed that both NCP and INC contested the elections against each other in several wards. It was therefore, specifically observed that though Mayoress belonged to NCP and Dy. Mayor belonged to INC and though both secured equal number of votes, it cannot be held that both parties are parties in ruling. It was specifically observed that in politics there may be various considerations for parties to support a candidate of each other and that the Court of Law was will suited to resolve the questions which are considered by the political parties, keeping in mind the divorce factors.
23. In our view this decision of the Division Bench will squarely apply to the facts of our case. In our case also, it is the contention of the petitioner that 3rd respondent Mayor was elected from NCP and the Dy. Mayor was elected from SS and that therefore, we should presume that there was a political alliance between NCP and SS. It is also further contended that at said election dated 15th March, 2007 BJP had put up a rival candidate and that he lost and that therefore, BJP should be considered as party in opposition. In our view this case is a complete answer to these contentions and therefore these contentions are hereby rejected.
(v) Dattabhau Pathrikar v. State of Maharashtra reported in : 2007(3)BomCR667 .
This judgment will not at all apply to the facts of this case, in as much as the issue involved in that case was not really as to which political party can be considered as opposition but the issue was as to who can be considered as 'a leader' of the party in opposition. In our case, there is no dispute that the 4th respondent is considered as a leader of BJP and SS combine. So also there is no dispute that the petitioner is the leader of the post poll alliance and/or Aghadi and/or front formed by INC with 8 independents, having total strength of 44.
(vi) Abdul Rashid s/o Abdul Sattar v. Vikas s/o. Ratanlal Jain reported in 2003 MCR 227.
The judgment in this was delivered by the learned Division Bench of which one of us [S.B. Mhase, J.] was a party. In fact the judgment is penned down by one of us [S.B. Mhase, J.]. In this judgment following conclusions were drawn, which will be relevat to our case:
. Election in the Corporation are contested on the basis of political parties, and therefore, counselor of political party who has a greatest numerical strength shall be considered as a leader of opposition.
. In the case of unequal strength of the party in opposition, the mayor has no other opposition but to recognise the counselor of a party having greatest numerical strength as a leader of opposition.
. The word 'party' appearing in Section 19 of the Act has to be interpreted as the political party in opposition.
. What has to be taken into consideration is that Section 19.IAA of the said Act does not contemplate an election of a person. It contemplates simplicitor recognition of an elected counselor by the Mayor as a leader of opposition. Therefore, the Mayor has to see that a person is an elected counselor, belongs to a party in opposition and the said opposition party is having greatest strength in the House. One more thing required to be looked into is that an elected counselor who is a leader of the party in opposition has to be recognised as a leader of opposition. The leader of the party in opposition means that a leader of political party which is sitting in opposition.
. While interpreting Section 19.IA of the said Act, the provisions of the Maharashtra Local Authority Members' Disqualification Act, 1986 cannot be ignored and the word 'party' appearing in Section 19 of the said Act is required to be interpreted as original party, front or Aghadi or Municipal party. The word 'party' in its proper connotation means the 'municipal party' in the Corporation, having greatest numerical strength and its elected counselor, will have to be recognised as a leader of opposition.
24. In this case the decision of the Mayor having been found against the provisions of Section 19.IA of the said Act was struck down and it was directed that the leader of the party having greatest numerical strength (Congress Party) be recognised as the leader of opposition.
25. In the present case contention has been raised by the petitioner that there are only two Aghadis and/or fronts which can be considered by us for the purpose of finding out as to which is the party having greatest numerical strength i.e. party in opposition. We do not agree with the contentions raised by the petitioner in the light of the provisions of Section 31A of the said Act. The second proviso to Section 31A reads thus:
(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 strength of such parties or groups in the Corporation, after consulting the Leader of the House, the Leader of Opposition and the leader of each such party or group:
Provided that, nothing contained in this sub-section be construed as preventing the Corporation from nominating on the Committee any member not belonging to any such party or group:
Provided further that, for the purpose of deciding the relative strength of the recognised parties or registered parties or groups under this Act, the recognised 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, 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 prepoll aghadi or front.
A perusal of the aforesaid proviso leaves no doubt that the registration of aghadi and/or front made in the present case by both NCP and INC with some independents, by registering the same with 5th respondent Divisional Commissioner, is required to be considered only for the purpose of Section 31A of the said Act. This Section 31A.
Relates to appointment by nomination on Committees to be by Proportional representation, set out in that section. In our view, therefore, registration of aghadi and/or front for the purpose of Section 31A of the said Act will not be of any assistance whatsoever for the petitioner to put up his case for being considered as a Leader of a Party in Opposition, under Section 19.IAA of the said Act. In our view for claiming to be a party with greatest numerical strength in Opposition, the aghadis and/or fronts registered under Section 31A of the said Act as one single unit is totally irrelevant and inconsequential. In our view for the purposes of Section 19.IAA of the said Act aghadis and/or fronts registered as contemplated by the provisions of the Maharashtra Local Authority Members' Disqualification Act, 1986 alone can be considered. The prepoll or postpoll alliance registered and/or made in terms of the Disqualification Act alone will have a role to play when questions are required to be answered in the light of the provisions of Section 19.IAA of the said Act.
26. In view of the aforesaid discussion of the legal aspects of the matter, now we will have to consider as to whether BJPSS can be considered as an alliance and consequently their combined strength can be considered as one 'party' for the purposes of Section 19.IAA of the said Act. In our view, the combine strength of BJPSS cannot be considered as an alliance in our case while considering the applicability of Section 19.IAA of the said Act. The reasons for the same are obvious and are as under:
i) There was no prepoll alliance and/or postpoll alliance registered by the BJPShiv Sena political parties or the counselors elected on the support of these two political parties or the councilors, sponsored specifically by these two political parties, as contemplated by the provisions of Section Maharashtra Local Authority Members' Disqualification Act, 1986.
(ii) The Gazette Notification issued in terms of Rule 39, Sub-rule (2) of the Election Rules, Schedule D, demonstrates that candidates were separately sponsored by BJPSS political parties. The BJPSS alliance as such did not sponsor even a single candidate at the elections of the said Corporations, dated 14th February, 2007.
(iii) Mere allegation that BJPSS are working as alliance for considerable length of time in State of Maharashtra by itself in the eye of law cannot make the councilors sponsored by BJP and/or Shiv Sena as candidate elected by BJPSS alliance, and their combined strength cannot be considered for the purpose of deciding the question as to which is the party with greatest numerical strength in Opposition.
(iv) The manner in which the Mayor or the Deputy Mayor were elected can never be considered as a factor to decide the legal status of the alleged BJPSS alliance. Nor can the elections of Mayor and Deputy Mayor be considered as a decisive factor for deciding the issue posed or our consideration.
27. The perusal of the letter submitted for seeking recognition of the 4th respondent as a Leader of Opposition dated 16th March, 2007 clearly demonstrates that a claim was accordingly made only on the basis that BJPSS is an alliance, and therefore, the collective strength of the councilors elected on the sponsorship of both these political parties should be considered together for finding out which is the party having been greatest numerical strength in opposition. For the aforesaid reasons that we have recorded hereinabove to the effect that the BJP and SS cannot be considered as alliance in the present case it becomes clear that the councilors elected on the sponsorship of BJPSS cannot be considered together as one unit for holding that they together constitute 'a party' having greatest numerical strength. As held by the learned Division Bench in the case of Abdul Rashid (supra) a term 'party' appearing in Section 19.IAA of the said Act has to be interpreted not to include such a non existent alliance of BJPSS. We therefore, hold that strength of councilors of BJP and SS will have to be considered separately as to two separate parties for determining as to which is the party in opposition having greatest numerical strength for the purpose of Section 19.IAA of the said Act.
28. Considering the case in its proper perspective, in the light of the discussion on the legal aspects of the matter made hereinabove, the picture as to relevant numerical strength of various parties as contemplated by Section 19.IAA of the said Act works out as under:
41 - NCP;36 - INC,25 - BJP,20 - Shiv Sena.
29. It is thus clear in the facts and circumstances of the present case narrated hereinabove that the NCP political party has secured 41 votes and is a party in opposition having greatest numerical strength in the house of the said Corporation. Therefore, in view of our aforesaid findings and conclusions, we hold that the the leader of the INC political party will be entitled to be recognised as the 'leader of the party in opposition', in the House of the said Corporation.
30. It is the case of the petitioner that the petitioner is the leader of the INC political party in the house of the said Corporation. On that basis, the present petition has been filed on 1st October, 2007 claiming a writ of Mandamus, directing the third respondent Mayor to recognise the petitioner as the 'Leader of Opposition'. However, we are afraid to state that we are not sure, much less certain, that on the date on which we are delivering this judgment, the petitioner still continues to be the Leader of INC political party in the house of the said Corporation. Therefore, we may not be justified in granting such a blanket aforesaid relief to the petitioner today. If the petitioner still continues to be the leader of the INC party in the house of the said Corporation certainly he is entitled to the aforesaid relief. However if the petitioner is not presently such a leader, it will be open for the INC political party to communicate the name of such leader to the 3rd respondent herein, the mayor of the said Corporation, who will within one week from the receipt of such communication issue appropriate declaration or communication to all concerned, recognising such a person as the 'Leader of the party in Opposition' in the House of the said Corporation.
31. In the result, we pass following order:
(a) This Writ Petition is allowed.
(b) The letter dated 17th March, 2007 (Exhibit 'F' to the present petition, produced at page 71) issued by the 3rd respondent herein, recognising the 4th respondent as the 'Leader of Opposition' in the House of the said Corporation, the 1st respondent herein, is quashed and set aside.
(c) The third respondent hereinthe Mayor of the said Corporation is hereby directed to issue appropriate declaration and/or communication recognising the Petitioner as the 'Leader of Party in Opposition' or, if the petitioner is not presently a Leader of Indian National Congress political party, then the Indian National Congress political party shall communicate within one week the name of the Leader of the party to the Mayorrespondent No.3 and the Mayorrespondent No. 3 shall thereafter, within one week, issue a declaration in favour of such person whose name has been communicated by the Indian National Congress as a Leader of the party in the said Corporation as Leader of party in opposition.
(d) Rule is made absolute accordingly, with no orders as to costs.
Prayer for stay of the judgment is made by the respondents No. 3 and 4. However, having found that the position of the Opposition Leader is to be held by a party who in opposition having greater numerical strength in the House and further having found that there was no PrePoll alliance of the BJP and Shiv Sena, we are not inclined to grant stay to the judgment. In a democratic set up, the Leader of the Opposition has its own importance and, therefore, judicially we have found that the petitioner or any other person nominated by the Indian Congress is to be the Leader of Opposition. Granting of stay will be against the democratic practice and the spirit with which the legislation has been carried out. Prayer for stay is rejected.