Shri Bhanji B. More Vs. the State of Maharashtra and anr. - Court Judgment

Excerpt:
civil - appointment of leader of opposition - appointment vide resolution passed by municipal corporation - interference by state government - jurisdiction thereof - section 19-iaa of the bombay provincial municipal corporation act, 1949 - respondent-state government suspended resolution of municipal corporation appointing petitioner as leader of opposition - hence, present petition - whether state government was within its jurisdiction to stay the resolution - held, the power conferred is not on the corporation, but is a statutory power conferred on the mayor to appoint the leader of the opposition - the language of the section does not in any way provide that the leader of the opposition would be appointed by a resolution passed by the corporation - once there is a statutory provision and pursuant to the statutory provision, the power has been conferred on a named authority that authority alone must exercise the power to the exclusion of all others, unless there will be a provision for delegation - in the instant case, there is no such provision - therefore, the power has to be exercised by the mayor and mayor alone - the resolution by the corporation was therefore, illegal - the state government therefore was within its jurisdiction to stay the resolution - rule made absolute accordingly. - section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - 11. for the aforesaid reasons, we are clearly of the opinion that the state government was within its jurisdiction to interfere.ferdino i. rebello, j.1. rule. by consent, heard forthwith.2. the petitioner claims to be the leader of the republican party of india,which has 5 seats in the ulhasnagar municipal corporation. according to the petitioner, lok bharati party, shiv sena, congress (i) and b.j.p. have formed a front which is the ruling front in the said corporation.3. ncp is a party having 15 seats in the corporation and mns is having 2. in other words, ncp is having the largest strength outside the agadi in the corporation.4. section 19-iaa of the bombay provincial municipal corporation act, 1949 provides for appointment of a leader of the opposition. it reads as under:19.ia. 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 conclusive.5. a perusal of sub-section (1) of section 19-iaa would show that an elected councillor who is the leader of the party in opposition having the greatest numerical strength is to be recognised by the mayor and he shall be the leader of the opposition. the statute therefore describes the member who can be the leader of the opposition and who has to be given recognition as such.6. it appears that the corporation passed a resolution on 12.6.2008 appointing the petitioner as the leader of the opposition. this resolution of the corporation has been suspended by the state government and, consequently, the present petition.7. it is now the case of the petitioner that the state government could not have interfered with the resolution passed by the corporation as it was within the competence of the corporation to appoint an elected councillor as the leader of the opposition.8. we have heard the learned counsel for the parties.9. in our opinion, insofar as section 19-iaa is concerned, the power conferred is not on the corporation, but is a statutory power conferred on the mayor to appoint the leader of the opposition. the language of the section does not in any way provide that the leader of the opposition would be appointed by a resolution passed by the corporation. once there is a statutory provision and pursuant to the statutory provision, the power has been conferred on a named authority that authority alone must exercise the power to the exclusion of all others, unless there be a provision for delegation. in the instant case, there is no such provision. therefore, the power has to be exercised by the mayor and mayor alone. the resolution by the corporation was therefore illegal. the state government therefore was within its jurisdiction to stay the resolution.10. the other aspect of the matter is that if we permit the leader of a party having 5 seats to be appointed by the mayor to the exclusion of a party having 15 seats and which is the largest party in opposition, that would amount to defeating the very basis of our parliamentary democracy and the provisions of the bombay provincial municipal corporation act, 1949. all councillors, whether elected or nominated, must function within the provisions of the act. a duty is cast on the mayor as the head of the party in the corporation to maintain and uphold democratic principles and traditions. it is immaterial at what point of time which party is in power. what must be adhered to is the normal democratic principle, that the largest party in the opposition must have its leader recognized as the opposition leader in terms of section 19-iaa of the act. this court will not and cannot permit the destruction of these democratic principles by party or a group in power subverting these basic principles and appointing a minority party as leader of the opposition.11. for the aforesaid reasons, we are clearly of the opinion that the state government was within its jurisdiction to interfere. at the same time, we are very clear that the petitioner herein has chosen to approach this court not to uphold the democratic principles, but to claim a post to which he in law is not entitled.12. it is the petitioner who has come to this court and not the main opposition party, ncp. we are of the opinion that as there is an authority by the mayor to exercise his power under section 19-iaa of the act, the post of the leader of the opposition cannot be kept vacant. there is no legal impediment in filling the post. we, therefore, direct the mayor of the respondent no. 2 to act strictly in terms of section 19-iaa of the bombay provincial municipal corporation act, 1949 and nominate a leader of the opposition from the leader of the opposition party having the maximum number of members. in the instant case, the ncp.13. rule made absolute accordingly. there shall be no order as to costs.