Writ petition challenging the Mayor's recognition of a Member as Leader of Opposition based on an Aghadi strength. Court held that Aghadis under s.31A are irrelevant for s.19-1AA. Recognized Shiv Sena as opposition leader.
Impugned communication quashed; Mayor directed to recognize petitioner as Leader of Opposition.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.1263/2014
Sanjay s/o Sudhakar Jadhav,
age 42 yrs., occu.business,
r/o Siddhartha Nagar, Plot No.63,
Chitod Road, Dhule. Dist.Dhule.
...Petitioner..
Versus
1] The State of Maharashtra , through its Principal Secretary, Urban Development Department, Mantralaya, Mumbai – 32.2] The Dhule Municipal Corporation, Dhule. Dist.Dhule. Through its Commissioner.3] The Mayor, Jayshree Kamalakar Ahirrao, age ___, occu.business, Dhule Municipal Corporation, Dhule Dist.Dhule.4] Sau.Madhuri Nandlal Ajalkar, age major, occu.household, r/o Raulwadi, Chitod Road, Near Municipal School No.28, Dhule, Tq. & Dist.Dhule.5] Gulab Janglu Mahajan, age ___, occu.business, r/o Subhash Nagar, Old Dhule. Dist.Dhule....Respondents...
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.....
Shri P.D. Bachate, Advocate for petitioner.
Shri S.V. Kurundkar, Govt.Pleader for respondent no.1.
Shri S.P. Shah, Advocate for respondent no.2.
Respondent no.3 served.
Shri Amol Sawant, Advocate for respondent no.5.
.....
CORAM: R.M. BORDE & A.M. BADAR, JJ. DATE: 07.05.2014
JUDGMENT (Per A.M. Badar, J.) :
1]Rule. Rule made returnable forthwith. With the
consent of learned counsel for the parties, this petition
is finally heard at the stage of admission.
2]The petitioner by filing the instant petition has
assailed the order passed by respondent no.3 – Mayor,
Municipal Corporation, Dhule on 20.1.2014 thereby
recognising respondent no.5 - Shri Gulab Janglu Mahajan
as Leader of Opposition, in exercise of powers u/s 19-1AA
of the Maharashtra Municipal Corporations Act, 1949
(hereinafter referred to as the said Act”.
3]The facts leading to the institution of the present
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petition are thus:
[a]In pursuance to the program declared by the
State Election Commission, general election of Dhule
Municipal Corporation was held and on 18.12.2013,
result thereof was published in the official
gazette. In all, 70 Councillors were declared
elected. The petitioner is one of the elected
Councillor of Dhule Municipal Corporation, Dhule.
[b]The party-wise strength in the House of Dhule
Municipal Corporation was as follows:
Nationalist Congress Party |
34 |
|
|---|---|---|
Shivsena |
11 |
|
Indian National Congress |
07 |
|
Bhartiya Janata Party |
03 |
|
Samajwadi Party |
03 |
|
B.S.P. |
01 |
|
Loksangram |
01 |
|
Independent Candidates |
11 |
|
[c] |
Meeting for conducting election |
of the President |
and Vice President of Dhule Municipal Corporation
was held on 31.12.2013. The mode of voting was by
raising hand. Sow.Jayashree Kamlakar Ahirrao and
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Shah Farooque Anwar Shah – both from Nationalist
Congress party were then elected as Mayor and Deputy
Mayor on securing 54 and 55 votes respectively. As
seen from minutes of the said meeting (Exh.B), 9
independent Councillors and 3 Councillors from
Samajwadi party voted in favour of Sow.Jayashree
Ahirrao and Shah Farooque Anwar Shah in the said
election. The respondent no.4 – Madhuri Ajalkar and
respondent no.5 Shri Gulab Mahajan, who is
recognised as Leader of Opposition, had voted in
favour of Sow.Jayashree Ahirrao and Shah Farooque
Anwar Shah, who were declared as Mayor and Deputy
Mayor of Dhule Municipal Corporation.
[d]On 3.1.2014, Shri Sanjay Gujarathi, group leader
of Shiv Sena by a letter (Exh.C) requested
respondent no.3 – Sow.Jayashree Ahirrao – Mayor to
recognise the petitioner – an elected Councillor as
Leader of Opposition by contending that Shiv Sena is
the party in opposition having greatest numerical
strength. While that letter was pending
consideration, vide letter dated 6.1.2014, 9
independent Councillors and 3 Councillors from
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SamajwadipartyrequestedtheDivisional
Commissioner, Nasik, to register them as Aghadi or
front for the purpose of Section 31A of the said
Act. Accordingly, by letter dated 15.1.2014, the
Divisional Commissioner, Nasik, informed respondent
no.4 – Sow.Madhuri Ajalkar that her group comprising
of 12 Councillors is registered in pursuance to the
provisions of Section 31A of the said Act as Dhule
Shahar Vikas Aghadi and the note thereof is taken in
the relevant register. Thereafter, vide
communication dated 18.1.2014 (Exh.E), respondent
no.4 – Sow.Madhuri Ajalkar requested respondent no.3
– Mayor of Dhule Municipal Corporation to recognise
respondent no.5 – Shri Gulab Janglu Mahajan as
Leader of Opposition by contending that Dhule Shahar
Vikas Aghadi / front is having 12 members and as
such is the party in opposition having greatest
numerical strength.
[e]By the impugned order dated 20.1.2014 (Exh.F),
respondent no.3 – Mayor was pleased to accept the
request so made and accordingly respondent no.5 –
Shri Gulab Janglu Mahajan was recognised by her as
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Leader of Opposition.
4]Heard learned counsel appearing for respective
parties.
5]Learned counsel for petitioner vehemently argued
that in the election of respondent no.3 as Mayor, 9
independent Councillors and 3 Councillors belonging to
Samajwadi party had voted in favour of respondent no.3 –
Mayor and as such the Aghadi formed by them cannot be
considered as party in opposition. According to him,
Dhule Shahar Vikas Aghadi is in fact ruling party having
supported the Mayor as well as the Deputy Mayor in their
election. By relying on several judgments of this Court,
it was argued on behalf of petitioner that the Aghadi or
front registered u/s 31A of the said Act needs to be kept
out of consideration while deciding the Leader of
Opposition.
6]Per contra, learned counsel appearing for the
respondents supported the impugned communication by
contending that respondent no.3 – Mayor has rightly
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recognised respondent no.5 – Shri Gulab Mahajan as Leader
of Opposition as he was chosen to be leader of the front
comprising of 12 elected Councillors, which is not the
part of ruling party. According to the learned counsel
appearing for respondents, numerical strength is required
to be taken into consideration while recognising Leader
of Opposition and Dhule Shahar Vikas Aghadi is having
greatest numerical strength and is not a ruling party.
As such according to respondents, the impugned
communication is perfectly legal.
7]At this juncture, it is apposite to consider
provisions of Section 19-1AA as well as 31A of the said
Act. Section 19-1AA of the said Act contemplates
recognition of an elected Councilor by the Mayor as a
leader of opposition. For such nomination, the Mayor has
to examine whether an elected Councilor belongs to a
party in opposition and whether said opposition party is
having greatest numerical strength in the House. It is
sought to be canvassed by the respondents that Aghadi /
front named Dhule Shahar Vikas Aghadi registered u/s 31A
of the said Act and having numerical strength of 12
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elected Councilors needs to be considered as single unit
and as such is the party in opposition having greatest
numerical strength. As such it becomes necessary to
consider the provisions of Section 19-1AA and Section 31A
of the said Act, which read thus:
“19-1AA. 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.
(2)There shall be paid to the Leader of the
Opposition such honoraria and allowances and
other facilities as may be provided by the
regulations made in this behalf by the
Corporation.”
“31A. Appointment by nomination committees to
be, by proportional representation.
(1)Notwithstanding anything contained int his
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Act or the rules or bye-laws made thereunder, in
the case of the following Committees, except
where it is provided by this Act, that the
appointment of a Councillor to any Committee
shall be by virtue of his holding any office,
appointment of Councillors to these Committees,
whether in regular or casual vacancies, shall be
made by the Corporation by nominating Councillors
in accordance with the provisions of sub-section
(2):-
[a]Standing Committee;
[b]Transport Committee;
[c]Any special Committee appointed under
section 30;
[d]Any ad hoc Committee appointed under
section 31.
(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, the relative strength of the
recognized parties or registered parties or
groups or aghadi or front shall be calculated by
first dividing the total number of Councillors by
the total strength of members of the Committee.
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The number of Councillors of the recognized
parties or registered parties or groups or aghadi
or front shall be further divided by the quotient
of this division. The figures so arrived at
shall be the relative strength of the respective
recognized parties or registered parties or
groups or aghadi or front. The seats shall be
allotted to the recognized parties or registered
parties or groups or aghadi or front by first
considering the whole number of their respective
relative strength so ascertained. After
allotting the seats in this manner, if one or
more seats remain to be allotted, the same shall
be allotted one each to the recognized parties or
registered parties or groups or aghadi or front
in the descending order of the fraction number in
the respective relative strength starting from
the highest fraction number in the relative
strength, till all the seats are allotted:
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
MaharashtraLocalAuthorityMembers'
Disqualification Act, 1986, within a period of
one month from the date of notification of
election results, form the aghadi or front and,
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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.
(3)If any question arises as regards the
number of Councillors to be nominated on behalf
of such party or groups, the decision of the
Corporation shall be final.”
8]Perusal of Section 19-1AA makes it clear that the
Mayor is duty bound to determine firstly as to which
party in opposition has the greatest numerical strength
and then to recognise the leader of that party – an
elected Councillor as a Leader of Opposition. Section
19-1AA thus cast duty on the Mayor to uphold democratic
principle that the leader of opposition must be an
elected Councillor from the largest party in opposition.
9] The learned counsel for the petitioner rightly relied on Databhau Annasaheb Pathrikar V/s State of Maharashtra & others (2007 (3) Bom.CR, 667) penned down by one of us (Shri R.M. Borde, J.) wherein the Division
Bench of this Court held that it is the numerical
strength of the Councillors of the largest party in
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opposition that determines who is entitled to be recognised as the leader of opposition and the Mayor is not entitled to recognise a person as the leader of opposition on the basis of any decision of the party or its office bearers. Said judgment was followed by the Division Bench of this Court in Narendra Gotu Pardesi V/s Mayor, Dhule Municipal Corporation (2007 (5) Bom.C.R., 674) and it would be appropriate to reproduce paragraph no.24 of the said ruling which reads thus:
“It is clear therefore that the elected Councillor
who is the Leader of the party in Opposition
having the greatest numerical strength has to be
recognised by the Mayor as the Leader of the
Opposition and the rest of the parties which are
in opposition will not be entitled to participate
in any way in the process.”
10] The question which needs to be decided in this
petition is the meaning of the term party in opposition
used in Section 19-1AA as to whether it includes the
aghadi or front registered under Section 31A of the said
Act. Bare reading of Section 31A makes it clear that the
same deals only with nomination of Councillors on
Standing, Transport, Special and Ad-hoc Committees by
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nomination by considering the relative strength of the
concerned parties. For the purpose of deciding relative
strength of the concerned parties or groups or elected
Councillors, they can within a period of one month from
the date of notification of election results, form aghadi
or front, which is then treated as pre-poll aghadi or
front. The question as to whether the aghadi or front registered under the second proviso to Section 31A of the said Act can be considered as the party in opposition having greatest numerical strength is no more resintegra . The Division Bench of this Court in the case of Ulhas Vasant Bagul @ Aba Bagul V/s Pune Municipal Corporation & others (2009 (1) Mh.L.J., 813) has held thus in paragraph no.25 :
“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
5threspondent Divisional Commissioner, is
required to be considered only for the purpose of
section 31-A 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
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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 19-1AA 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 19-1AA 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 pre-poll or
post-poll 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 19-1AA
of the said Act.”
This judgment is followed by the Division Bench in Jeevan Abajirao Ghogre Patil V/s Mayor, Nanded-Waghala Municipal Corporation & others (2012 (5) Mh.L.J., 330).
11]It is thus clear from the ratio of this judgment
that for claiming to be a party in opposition having
greatest numerical strength, the aghadis and/or fronts
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registered u/s 31A of the said Act are totally irrelevant
and are required to be kept out of consideration. Such
aghadis and/or fronts cannot be treated as one single
unit kept out of consideration. It is thus clear that
Aghadi or front formed by 9 independent Councillors and 3
Councillors of Samajwadi party, which is registered as
Dhule Shahar Vikas Aghadi, comprising of 12 elected
Councillors cannot be considered for the purpose of
recognition of leader of the party in opposition u/s 19-
1AA of the said Act. The said recognition is
specifically granted u/s 31A of the said Act of 1949 and
that is useful only for the purpose of proportional
representation in various committees of the Municipal
Corporation mentioned in Section 31A of the said Act.
Only the Aghadi and/or front registered as contemplated
bytheMaharashtraLocalAuthorityMembers
Disqualification Act, 1986, can be considered for the
purpose of Section 19-1AA of the said Act and there is
nothing on record to hold that Dhule Shahar Vikas Aghadi
is the Aghadi and/or front registered under this Act. As
such we are unable to uphold impugned communication dated
20.1.2014 by which respondent no.3 – Mayor has recognised
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respondent no.5 – Shri Gulab Mahajan as Leader of
Opposition in pursuance to the request made by respondent
no.4 – Sow.Madhuri Ajalkar.
12] In order to recognise an elected Councillor as
leader of the party in opposition, he must belong to a
party in opposition and numerical strength of such party
in opposition must be the greatest one. In view of
foregoing discussion, Dhule Shahar Vikas Aghadi – a front
formed by 12 Councillors and registered u/s 31A of the
said Act needs to be kept out of consideration while
deciding the leader of the party in opposition having
greatest numerical strength. If that is so, then
naturally Shiv Sena is the only party in opposition
having greatest numerical strength in Dhule Municipal
Corporation as it is having 11 elected Councillors in the
general body of the Corporation. As such respondent no.3
– Mayor has no other option but to recognise the
Councillor of Shiv Sena party as it is having greatest
numerical strength as a Leader of Opposition.
Undisputedly, the elections to Dhule Municipal
Corporation have been conducted on party basis.
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13] The leader of party in opposition means that a
leader of political party, which is sitting in
opposition. In the case in hand, minutes of the meeting
dated 31.12.2013 convened for election of the President
and Vice President of Municipal Corporation, which are at
Annexure D clearly show that all Councillors of Dhule
Shahar Vikas Aghadi voted in favour of respondent no.3 –
Mayor in her election as a Mayor of Dhule Municipal
Corporation and in a similar way, they voted in favour of
Shah Farooque Anwar Shah who is elected as Deputy Mayor
in the said election. The legislature wanted that a
political party which has the greatest numerical strength
and which sits in the opposition is entitled to get its
Councillor recognised as a Leader of Opposition. As
such, by no stretch of imagination, Dhule Shahar Vikas
Aghadi can be considered as party sitting in opposition,
and as such decision of the Mayor to recognise respondent
no.5 – Shri Gulab Mahajan cannot be upheld.
14] In the result, the petition is allowed. Rule is
made absolute in terms of prayer clauses [B] and [C].
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The impugned communication dated 20.1.2014 issued by
respondent no.3 – Mayor recognising respondent no.5 –
Shri Gulab Janglu Mahajan as Leader of Opposition is
quashed and set aside. The respondent no.3 – Mayor is
hereby directed to issue appropriate declaration and/or
communication recognising the petitioner as the “Leader
of the party in opposition” in the House of respondent
no.2 – Dhule Municipal Corporation. No order as to
costs.
ndk/ ssj.doc
3 issues framed by the court
Whether an Aghadi or front registered u/s 31A of the Maharashtra Municipal Corporations Act, 1949 can be considered as a party in opposition u/s 19-1AA of the said Act.
Whether the Mayor should recognise the Leader of Opposition based on the numerical strength of an Aghadi formed by independents and non-opposition parties who voted for the Mayor.
Whether the petition challenging the recognition of Gulab Janglu Mahajan as Leader of Opposition should be allowed.
Colour shows how this judgement treated each authority
Databhau Annasaheb Pathrikar V/s State of Maharashtra & othersFollowed¶84
Databhau Annasaheb Pathrikar V/s State of Maharashtra & others
Narendra Gotu Pardesi V/s Mayor, Dhule Municipal CorporationFollowed¶87
Narendra Gotu Pardesi V/s Mayor, Dhule Municipal Corporation
Ulhas Vasant Bagul @ Aba Bagul V/s Pune Municipal Corporation & othersFollowed¶97
Ulhas Vasant Bagul @ Aba Bagul V/s Pune Municipal Corporation & others
Jeevan Abajirao Ghogre Patil V/s Mayor, Nanded-Waghala Municipal Corporation & othersFollowed¶103
Jeevan Abajirao Ghogre Patil V/s Mayor, Nanded-Waghala Municipal Corporation & others
2 provisions across 1 enactments
Sanjay s/o Sudhakar Jadhav
The State of Maharashtra
The Dhule Municipal Corporation
Sow. Jayshree Kamalakar Ahirrao
Sau. Madhuri Nandlal Ajalkar
Gulab Janglu Mahajan
R.M. Borda
A.M. Badar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court