1. The petitioners before this Court are questioning the suspension of nominations to its Standing Committee by Municipal Corporation, Akola, in its meeting dated 28.02.2011 by Respondent No. 1 - State Government under Section 451 of Bombay Provincial Municipal Corporation Act, 1949 (hereinafter referred to as 1949 Act). The nominations have been made under Section 31-A(2) thereof.
2. After the petition was filed before this Court on 11.03.2011, this Court issued notices to the respondents and on 25.03.2011 ordered status quo till the hearing of the matter for admission. On 20.04.2011, the contention about Section 451 were noted and Respondents No. 1 & 2 then agreed to comply with the procedure under Section 451 and follow principles of natural justice. In view of this, the matter was kept pending and Respondents No. 1 & 2 were permitted to hear the petitioners. Accordingly, State Government passed further appropriate orders on 25.05.2011 and maintained its earlier order dated 08.03.2011. Petition was then amended on 03.06.2011 to raise challenge to this later order dated 25.05.2011. In this background, we have heard matter finally by making Rule returnable forthwith at the request of Shri Madkholkar, learned counsel for the petitioner, Shri Sambre, learned Government Pleader for respondents No. 1 & 2, Shri Kaptan, learned counsel for respondent No.3 - Municipal Commissioner and Shri Deshpande, learned counsel for respondent No. 4.
3. According to Shri Madkholkar, learned counsel, issue is covered by the judgment of this Court dated 22.12.2010 in Writ Petition No. 1124 of 2010, where this Court found that consultation envisaged under Section 31-A in the process of nomination is a political question and this Court is not expected to decide the same in exercise of its power of judicial review. This Court also found that said consultation is part of process of nominating Councillors and Legislature has not laid down any mode and manner for its exercise. The said consultation is, therefore, held to be not mandatory.
4. In this background, when meeting was conducted on 28.02.2011 & nominations were done, instead of approaching this Court in the matter, Respondent No. 4 knocked the doors of State Government by invoking Section 451 of 1949 Act and Government on 08.03.2011, for wrong reasons, suspended those proceedings. Further procedure as contemplated by Section 451(2) read with Section 451(3) was then completed which led to passing of similar orders on 25.05.2011. It is pointed out that the said decision is based upon Government circular dated 06.07.2010 and that circular cannot modify the procedure prescribed by Section 31-A. It is contended that reasons given in the impugned order are non-compliance of procedure as contained in that circular and there is no provision in 1949 Act which permits the State Government to issue such circular in the matter of nomination by Corporation. The order is, therefore, stated to be without jurisdiction.
5. The judgment in the case of State of M.P vs. Municipal Corporation, Indore, reported at AIR 1987 SC 1983, is relied upon to urge that Section 451 cannot be used to issue such circular. The judgment in the case of Laxman Dundappa Dhamanekar vs. Vishwa Bharata Seva Samiti, reported at (2001) 8 SCC 378, is relied upon to point out the status of administrative circulars. It is pointed out that such circulars are administrative decisions, which can be issued only to fill in yawning gaps and as here in scheme of Section 31-A, there is no such gap, the circular dated 06.07.2010 is liable to be quashed and set aside. Judgment of this Court in the case of Sudhakar Waman Chavan vs. State of Maharashtra, reported at 2003 (1) Mh. L.J. 631 is pointed out to substantiate the scope of Section 451. It is also urged that in any case, as it is nomination to fill in 1/6th vacancies which occur due to rotation in Standing Committee, it is part of election process and power under Section 451 of 1949 Act cannot be used to interfere in said nomination process.
6. Lastly, the judgment of this Court dated 22.12.2010 in Writ Petition No. 1124 of 2010 (Madan Bodulaji Bhargad & Ors. vs. Akola Municipal Corporation & Ors.) is pointed out with contention that when Respondent No. 4 became aware that he cannot defeat nominations by filing another writ petition, malafidely Respondents No. 1 & 2 were approached. The judgment of the Hon'ble Apex Court in the case of State of Maharashtra vs. Sarangdharsingh & Ors., reported at 2011 (1) SCC 577, is pressed into service to point out how the Hon'ble Apex Court has imposed heavy costs for abuse of power and similar costs are prayed for in present matter.
7. Shri Kaptan, learned counsel for respondent No. 3 - Municipal Commissioner has invited attention to proceedings as recorded on 28.02.2011 to urge that in those proceedings, no resolution has been recorded as passed. He further states that meeting book which is recorded later on, however, shows such resolution and that is not correct position. Our attention has been drawn to submissions filed before this Court by the Municipal Commissioner on 15.04.2011 to show specific stand that on 28.02.2011, no resolution was either proposed or seconded and passed. In other words, he has contended that there was no nomination effected on 06.07.2010. Readiness and willingness to support this by video recording is also expressed.
8. The Government resolution dated 06.07.2010 is pressed into service to urge that said circular does not in any way encroach upon the powers of Corporation and though styled as Circulars, it is issued under the orders of and in the name of Hon'ble Governor for State of Maharashtra. This decision under Article 166 of Constitution of India was not pointed out to this Court in Writ Petition No. 1124 of 2010 which came to be decided on 22.12.2010. It is contended that even when nominations in terms of Section 31-A are to be done by Corporation, some disputes were arising and hence with a view to make that process more transparent, guidelines have been issued on 06.07.2010. The guidelines are read out to us to show that said guidelines only further the democratic process and hence there is no question of those guidelines being violative of Section 31-A or of any other provision of 1949 Act.
9. The learned counsel states that the provisions of the Act clearly show authorities entrusted with duties under 1949 Act and those authorities show that general body of Corporation i.e. Municipal Corporation and Mayor are different and not one and the same. It is further contended that the guidelines issued in this respect are, therefore, only to see that nomination proceeds in more democratic manner. Our attention has been invited to judgment of Division Bench of this Court in the case of Sujata vs. Akola Municipal Corporation, reported at 2010 (3) Mh. L.J. 230, to urge that under Section 31-A(2), elective process is neither expressed or implied. It is, therefore, urged that when it was noticed that there was no resolution and no nomination, the exercise of power under Section 451 by Respondent No. 1 deserves to be maintained. The judgment in the case of S.C. & S.T. Officers Welfare Council vs. State of U.P., reported at AIR 1997 SC 1451, is relied upon to urge that the Government decision dated 06.07.2010 is only for the purposes of filling in gaps and in the shape of guidelines.
10. Shri Sambre, learned Government Pleader has invited attention to the operative part of order dated 25.05.2011 passed by State Government to show that there the State Government has not used the word resolution. It is further stated that Government was not party to Writ Petition No. 1124 of 2010 and decision dated 06.07.2010 was not pointed out to this Court in that mater.
11. In reply arguments, Shri Madkholkar, learned counsel has contended that the document dated 06.07.2010 itself uses the word circular and, therefore, it cannot be traced to Article 166 of Constitution of India. He has invited attention to the fact that as per reply of Respondents No. 1 & 2, the circular has been issued in the absence of proper legislation on the subject & pending subordinate legislation to fill in that gap, the circular came to be issued. It is further contended that absence of any resolution on 28.02.2011 is a new defence and if there was no resolution, provisions of Section 451 of 1949 Act are not applicable or attracted. He has contended that in earlier similar meetings, there never was any resolution passed, there was no proposer or seconder noted in the proceedings and the nomination has been recorded appropriately in resolution book which is a separate record. It is contended that here the Municipal Commissioner has accepted holding of meeting on 28.02.2011. The learned counsel also urged that voting may become essential in nomination process only if it is demanded and on 28.02.2011, there was no such demand.
12. After hearing respective counsel as above, we found it appropriate to look into original proceedings book of Municipal Council to check whether on 28.02.2011, General Body passed any resolution nominating the members. Accordingly, directions were issued and the matter was adjourned. Thereafter the copies of proceedings i.e. minutes recorded as also the resolution book which contains gist of decision, have been produced before us by Respondent No. 3 after supplying the photostat copies thereof to the petitioners. The petitioners were also permitted to peruse the original records. The records of previous such nominations as demanded by the petitioners are also produced. In the meanwhile, on 29.06.2011 one Gajanan Madhusudan Pande, Municipal Secretary of Akola Municipal Corporation filed an affidavit stating that minute book and proceeding book of every meeting is maintained separately. He has stated that in minute book, entire discussion in the house noted by Stenographer is typed and recorded under the supervision of Municipal Secretary. In proceeding book the actual decision on the subject is reduced into writing. He has stated that on 28.02.2011, there was no voting as there was no demand therefor and detailed minutes of that meeting as recorded in minute book are duly signed by Mayor and by Municipal Secretary. He has stated that resolution was passed for appointing eight fresh members on Standing Committee. It was proposed by Mr. Dilip Deshmukh and seconded by Sau. Usha Virak. He has further stated that same procedure was followed in earlier years also.
13. This affidavit was filed after serving its copy upon the petitioners and Government Pleader's office. Copy was not supplied to either Respondent No. 4 or to counsel representing Respondent No. 3. The matter was, therefore, required to be adjourned as that affidavit was found filed by Gajanan Pande in person. He was identified by Advocate P.S. Malve from Akola, who has also earlier identified Respondent No. 4 in the matter. On 07.07.2011, the Municipal Commissioner has filed his personal affidavit stating that he had not instructed Municipal Secretary to tender any such affidavit. Thereafter, the matter came to be closed for orders.
14. After giving our anxious consideration to various arguments as advanced, we find it proper to note that Section 31-A speaks of appointment by nomination by Corporation on various Committees by following principle of proportional representation. The Standing Committee is one such Committee with which we are concerned here. Its sub-section (2) states that in nominating the Councillors on Committee, parties or registered parties or groups may nominate members, as nearly as may be, in proportion to strength of such parties or groups in the Corporation after consulting the Leader of the House, the Leader of the Opposition and the Leader of each such party or group. Its sub-section (3) further stipulates, if any question arises as regards the number of Councillors to be nominated on behalf of such party or group, the decision of the Corporation is final. This, therefore, clearly shows that Corporation (General Body) therefore, has the power to nominate members on Standing Committee for filling in vacancies which occur due to retirement on account of rotation as contemplated by Section 20(5) of 1949 Act. Various parties or groups in Corporation have their representatives on Standing Committee in proportion to their strength in General Body. The nomination is after consulting the Leader of the House i.e. Mayor himself, the Leader of Opposition and Leader of each other party or group which is recognized or registered party. The phrases like Corporation or then various other authorities constituted under 1949 Act find mention separately in Section 2(10) and Section 4, Section 19-IA of 1949 Act. In present facts, it is not necessary to go into those details.
The dispute in relation to such number is to be resolved by General Body of Corporation and its decision has been made final. It is, therefore, obvious that it is the General Body i.e. Corporation, which has been given all these powers.
15. The Division Bench of this Court in Sujata vs. Akola Municipal Corporation, (supra) has found that the said provision does not contemplate an elective process. Again, it is not necessary for us to delve even into this aspect. The perusal of admitted minutes as recorded on 28.02.2011 show that Mayor was the Presiding Officer/ Chairman of that meeting and Municipal Secretary was present in it. The present Respondent No. 4 demanded that Circular dated 06.07.2010 should be read out to the House and Mayor then told that High Court order dated 22.12.2010 should also be read. Only the Circular dated 06.07.2010 was then read out. Then concerned group leaders handed over sealed envelops to Mayor and those details are thereafter recorded. Respondent No. 4 then stated that names contained in those envelops should be read out by somebody else and not by Mayor and one other member demanded that business should be transacted as per Circular dated 06.07.2010. When process of reading names was undertaken, three members raised objection and Mayor suggested that after names are read out, Councillor should raise their objection and it would be recorded. Respondent No. 4 then again insisted for proceeding further as per clause 3 of circular dated 06.07.2010 and the Mayor did not accept it. There was some commotion. The Municipal Commissioner was then called upon to express his opinion and he stated that though Mayor has power to open the envelops, names contained therein should be read out by somebody else. Mayor then stated that reading of names contained in envelop was to start. He then read out names as contained in envelop one by one. Name of one Manjusha Shelke as representative of Shiv Sena was read out and it was not objected to by anybody. The name of Shantabai Ingle as representative of Bhartiya Janta Party (BJP) was read out and it was not objected to. The name of Sunil Meshram was read out as representative of Indian Republic Party (Bahujan Maha Sangh) and it was objected to on the ground that name of one Abdul Rauf was recommended by that party. The name of Rupali Adgaonkar was then read out as representative for Akola Vikas Aaghadi and three members then contended that the group leader and seniors in party have given another sealed envelop, which should be read out. Their objection was, therefore, recorded. It appears that these three members who raised objection included Respondent No. 4 also and then they were advised to occupy their seats so that further business could be transacted. After these three objectors occupied their seats, name of Rupali Adgaonkar, Sham Udewal, Jahuruddin Chauhan, Rafiq Siddiqui as representatives of Akola Vikas Aghadi and name of one Suryaprakash Shirsat, as group leader of Lok Jan Shakti Party were read out and again above mentioned three Councillors including Respondent No. 4 raised objection. There was commotion in the house and Mayor declared meeting over. He directed singing of Rashtra Geet (National Anthem) and Municipal Secretary then ordered the same. One of the objector then threw mike standing in front of Municipal Secretary and expressed that Rashtra Geet could not be sung as meeting was not over. Respondent No. 4 stated that Deputy Mayor would continue with meeting and one of the objectors took mike affixed in front of Mayor. Rashtra Geet had started in the meanwhile and hence these three objectors started singing Rashtra Geet. After Rashtra Geet was over, they broke glass with mike on dais and threw "Rajdand" down. The proceedings dated 28.02.2011 are over here and it bears signature of Mayor and Municipal Secretary at its end. The details recorded in Minute book as above are also filed in photostat before this Court. The said minute book nowhere shows name of any proposer or seconder as contained in affidavit of Municipal Secretary Gajanan Pande. The photostat copy of proceeding book in which decision on the subject is reduced into writing in the form of resolution is also produced before us. Its perusal reveals name of one Dilip as proposer and of Sau. Usha as seconder. The brief recording of resolution then states that names were read out in the house and were approved and then eight names are recorded at the end. Those eight names are Rupali Adgaonkar, Jahuruddin Chauhan, Mohd. Rafiq Siddiqui, Sham Udewal, Suryaprakash Shirsat, Shantabai Ingley and Sunil Meshram. Thus, it is shown that these eight Councillors have been nominated on Standing Committee by Corporation. The consideration of the minutes as recorded on 28.02.2011 mentioned above in detail show that there was no objection raised by anybody when names of Manjusha Shelke and Shantabai Ingle was read out. The objections were raised for over five names. Those minutes nowhere show that the General Body of Corporation accepted to nominate or resolved to nominate any of these persons. Even if absence of objection to name of Manjusha Shelke and Shantabai Ingle is to be presumed as their nomination, it is apparent that other five names were not cleared by Corporation and objections to the same were raised. Those objections were not looked into and the Mayor, all of a sudden declared the meeting over. The fact that meeting was not over as it had not come to its logical end is apparent from said minutes. The effort of Respondent No. 4 and others to continue further with the meeting was defeated. Entire minutes does not show any sentence showing any decision by General Body accepting any of these names & nominating them on the Standing Committee.
16. In any case when Section 31-A(2) gives power to Corporation, the power needs to be exercised only by passing a resolution. General body members cannot take any decision or cannot be presumed to have taken any decision in absence of such resolution. No resolution of General body accepting names of Manjusha Shelke or Shantabai Ingle is recorded in the minutes. There is no resolution regarding any other name as approved for nomination by Corporation. The facts, therefore, clearly show that on 28.02.2011, there was no resolution passed by the Corporation nominating anybody.
17. The Municipal Secretary, who has filed his affidavit has stated that on 28.02.2011, voting did not take place as there was no demand for voting. His affidavit, therefore, shows that in case of dispute about names as representative of a particular recognized party or group, the name could have been finalized by voting. We are not concerned with correctness of this assertion but then facts show that dispute on names was very much there on 28.02.2011. The said Municipal Secretary as also the petitioners have contended that same procedure was followed even while effecting nominations earlier. We have, therefore, perused the minutes as recorded on 26.02.2008 and it appears that the said contention is not correct because minutes at some place record the seconder and proposer also. The said minutes at its end at page 188 of the Minute book clearly record five names and nomination. The proceeding book which contains gist of minutes again shows names of proposer and seconder. The minutes of meeting dated 27.02.2009 again at its end at page 19 record fact of nomination on Standing Committee and at page 18 fact of nomination of five members on Standing Committee. The perusal of minutes as recorded on 26.02.2010 again record at its page Nos. 27, 28, 29 & 30, the nominations effected to Standing Committee. This nomination is missing in meeting as conducted on 28.02.2011. Minutes nowhere show that anybody has been nominated in it as Member of Standing Committee by Corporation.
18. In any case, in view of express language of Section 31-A(2) General Body meeting has to return a finding on all nomination through resolution and there is no such finding or resolution. In other words on 28.02.2011, Corporation has not effected any nomination on Standing committee. What is absent in minutes which are recorded simultaneously in the House by Stenographer under the supervision of Municipal Secretary and finalized later on, cannot therefore, form part of proceedings. The proceedings of nomination as recorded on 28.02.2011 are, therefore, misleading and bring into existence something which never happened in the House. Even if contention of Shri Madkholkar, learned counsel, that minutes and proceedings were similarly recorded in past, is to be presumed true, that does not cure the illegality in the process which took place on 28.02.2011.
19. The order dated 08.03.2011 initially impugned loses its significance in the light of later order dated 25.05.2011. The perusal of order dated 25.05.2011 shows that it records what is apparent from the minutes and also notices that Mayor has not conducted himself or the proceedings in the meeting were not conducted as per guidelines issued on 06.07.2010. In the light of this, the nomination on 28.02.2011 is found to be faulty and illegal. The operative part clearly shows that minutes as recorded and consequential decision to nominate has been, therefore, superseded under Section 451(3) of 1949 Act. This order no where shows that there was any resolution passed by General Body on 28.02.2011.
20. Section 451 of 1949 Act authorizes State Government to suspend or rescind any resolution or order of Corporation or any other authority or doing of any Act. Thus, power thereunder is not restricted only to cases in which Corporation or any authority has passed any resolution or order but then it also covers cases in which any act is being done and it is noticed that such act is in contravention of or in excess of powers conferred by or under 1949 Act. It is obvious that on 28.02.2011, there was no nomination by Corporation. The proceeding prepared contrary to minutes and showing such nomination and consequential filling up of vacancies in Standing Committee, is not an act in consonance with the provisions of Section 31-A. The State Government has, therefore, rightly intervened in the matter. The judgment of this Court dated 22.12.2010 in Writ Petition No. 1124 of 2010, considers the scope of consultation with respective leaders and parties as contemplated under Section 31-A(2). It does not deal with the role of General Body of Corporation in the matter. This Court has in the case of Digambar vs. Arya Hindi Vidya Mandir, 1984 Mah. L.R. 250, has already held that whenever an artificial person like management of School acts or takes any decision, it must come out in the shape of resolution. This exposition of law holds good even for such General Body like Corporation and its every collective decision has to manifest itself in the form of resolution. Here, as we have found that there is no such resolution or decision, controversy, therefore, is not covered by judgment dated 22.12.2010.
21. The circular or Government decision issued on 06.07.2010 is not pointed out to this Court in Writ Petition No. 1124 of 2010. In any case circular though issued in the name of the Hon'ble Governor itself stipulates that it contains only guidelines. These guidelines were read out upon permission from Mayor on 28.02.2011 and it is not the case of the petitioners that compliance therewith would have in any case violated rights of the Corporation or any Councillor under Section 31-A. The minutes as recorded on 28.02.2011 show that the effort was made by House to proceed further in accordance with those guidelines and the petitioners acquiesced in that effort. In these circumstances, in the absence of any argument on prejudice or then breach of any statutory provision by adherence thereto, we do not find substance in challenge to those guidelines.
22. We, therefore, do not find it necessary to consider various judgments cited for said purpose before us. Similarly, absence of nomination cannot be viewed as political question. Councillors not nominated by Corporation can not aspire for birth on Standing Committee & can not function as such. Cancellation of such minutes & proceeding dated 28.02.2011 disabling them from assuming that charge/position can not therefore be held to either erroneous or perverse by this Court. Government has acted within four corners of its powers in the matter. Even otherwise, as the petitioners are not in position to show any nominations on 28,02,2011, it is obvious that they have not suffered any legal injury to enable them to maintain such writ petition. Hence, it is also obvious that demand for costs as made by the petitioners in these facts, is equally misconceived and unsustainable. We, therefore, dismiss the petition. However, in the facts and circumstances of the case, there shall be no order as to costs.