Jeevan Chandrabhan Idnani
& ANR. Vs. Divisional Commissioner, Konkan Bhavan & Ors.
[Civil Appeal No.1192
of 2012 arising out of Special Lave Petition (Civil) No.14988 of 2011]
J U D G M E N T
interpretation and purport of the second proviso to Sub-section (2) of Section 31(A)
of the Bombay Provincial Municipal Corporation Act, 1949 (hereinafter referred to
as "Municipal Corporation Act") falls for the consideration of this Court.
constitution of the "Municipal Corporations"1 (in the State of Maharashtra),
their powers, functions and various allied matters are regulated by the above- mentioned
Act. Section 5(2)2 of the Act declares, every "Corporation" shall consist
of a definite number of elected and a few nominated councillors. The number of elected
Councillors with respect to any Corporation is determined on the basis of the population
of that Municipal Corporation. The case on hand pertains to the Ulhasnagar Municipal
Corporation, the third respondent herein, which has a total of 76 elected Councillors.
to the third respondent took place sometime in the month of February, 2007 and the
Corporation was duly constituted with 76 elected Councillors. The break- up of the
76 Councillors is specified in the Judgment under appeal as follows:-
Bharti Party 14
Congress Party 15
Sena Party 16
Janata Party 12
National Congress 6
Party of India (A) 5
Navnirman Sena 2
Party of India (G) 1 1 Sec.2
"Corporation" means the Municipal Corporation constituted or deemed to
have been constituted for a larger urban area known as a City. Sec. 2(8) - "City"
means the larger urban area specified in a notification issued in respect thereof
under clause (2) of article 243-Q of the Constitution of India or under sub-section
(2) of section 3 of the Act, forming a City. 22 Sec.5 (2) Each Corporation shall
consist of,- (a) such number of councilors, elected directly at ward elections,
as is specified in the table below- T A B L E XXX XXX XXX XXX (b) such number of
nominated councilors not exceeding five, having special knowledge or experience
in Municipal Administration to be nominated by the Corporation in such manner as
may be prescribed.
from the fourteen Members elected as Councillors to the Ulhasnagar Municipal Corporation
on behalf of the Lok Bharti Party, two more Councillors, one independent and the
other a lone Councillor, belonging to the Republican Party of India (G), joined
hands with the Councillors of the Lok Bharti Party and formed a front/aghadi immediately
after the election availing the facility provided under the 2 nd proviso to Section
31A (2) of the Municipal Corporation Act.
Nos. 6 to 13 herein were admittedly members of the said Aghadi. However, they decided
to quit the Aghadi and form a `Swatantar Aghadi' and addressed a letter dated 23rd
February, 2011 to the first respondent herein requesting the first respondent to
make suitable changes in the records maintained under the Disqualification Act and
the rules made thereunder.
first respondent accepted the above-mentioned request. The same is evidenced by
his communication dated 11th March, 2011 (hereinafter referred to as `the impugned
the above-mentioned communication, two of the Councillors belonging to the Lok Bharti
Party approached the Bombay High Court by way of a writ petition (civil) No. 2237
of 2011. By the judgment under appeal, the said writ petition was dismissed.
substance of the objection to the legality of the impugned order is that in the
light of the language of the second proviso to Section 31A(2), formation of a front
or aghadi after the completion of the election process to the municipal body is
permissible only when that is done within one month from the date of the notification
of the results of the election. The impugned communication purports to recognise
an aghadi/front beyond the above-mentioned period of one month which is clearly
impermissible and hence illegal.
High Court rejected the above-mentioned submission. On an examination of the various
provisions of the Act, the Court rightly held that the appointment to the four categories
of Committees specified under Sections 31A(1) takes place "at least more than
once" "during the tenure of the Corporation". Therefore the High
Court opined "the relative strength of the recognised parties or registered
parties or groups at the time of appointments" whenever made "would be
relevant". Hence, found no reason to find fault with the impugned order. The
correctness of the said judgment is in issue before us.
examine the correctness of the conclusion reached by the High Court, a brief survey
of the relevant provisions of the Municipal Corporation Act is required. Section
20 of the Act contemplates the constitution of a Standing Committee consisting of
16 Councillors to be appointed by the Corporation out of its own body. It is further
stipulated in Section 20(3) that half of the members of the Standing Committee shall
retire every succeeding year.
24 authorises the Standing Committee to delegate any of its powers and duties to
any Special Committee appointed under Section 30 of the Act.
31 contemplates the appointment of ad-hoc Committees for inquiring into or reporting
or for giving opinion with reference to such subjects relating to the purpose of
31(A) of the Act stipulates that in the case of
c. Special or
d. ad hoc Committees, the
appointment of Councillors to such Committees shall be made by the Corporation in
accordance with the provisions of Sub-section (2) thereof.
by nomination committees to be by proportional representation (1) Notwithstanding
anything contained in this 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):-
special Committee appointed under section 30;
ad hoc Committee appointed under section 31." 6 Sub-section (2) stipulates
that in making nomination of the Councillors to the above- mentioned Committees,
the Corporation is required to take into account the relative strength of recognised
or registered parties or groups in the Corporation and nominate members as nearly
as in proportion to the strength of such parties or groups in the Corporation. "31A
(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." In making such nomination, the
Corporation is required to consult the Leader of the House and the Leader of the
the first proviso to sub-section (2) would recognise the authority of the Municipal
Corporation to nominate any Councillor to any one of the above- mentioned Committees
notwithstanding the fact that such a Councillor does not belong to any party or
group. "Proviso (1) - 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." Second proviso - the exact
meaning and scope of which is required to be examined in this appeal - reads as
follows: 7 "Proviso (2) - 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 elections results,
from the aghadi or front and, on its registration, the provision 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."
may mention here that some of the political parties to which the councillors of
the 3rd respondent corporation belong to, such as Bhartiya Janata Party, Indian
National Congress, National Congress, Shiv Sena, etc., are indisputably registered
political parties under Section 29A of the Representations of the People's Act and
also recognised political parties in terms of the allotment of the symbols orders
1968 made by the Election Commission of India. Unfortunately there is no material
on record to indicate whether Lok Bharti Party is either a registered or a recognised
already noticed under Section 31A of the Municipal Corporation Act, the Corporation
is required to take into account the relative strength of the recognised parties
or registered parties or groups. The expressions (1) `registered party', (2) `recognised
party', (3) groups and (4) `front or aghadi' occurring in Section 31A of the Municipal
Corporation Act are not defined under the said Act. However, the expression `front'
or `aghadi' is defined under Section 2(a) of the Disqualification Act. "2.(a)
"aghadi" or "front" means a group of persons who have formed
themselves into a party for the purpose of setting up candidates for election to
a local authority."
expressions "recognised party" and "registered party" in the
context of political parties have a definite legal connotation in this country.
IVA of the Representation of the People Act, 1951 provides for the registration
of political parties. Section 29A prescribes the procedure for the registration
of a political party. Such registration is not compulsory, but optional. However,
registration enables a political party to claim certain benefits under law such
as accepting of a contribution (See Section 29 B ) from any person or company etc.
Similarly under the Election Symbols (Allotment and Reservation) Order, 1968 certain
symbols are reserved for a `recognised political party' for the exclusive allotment
to the candidates set up by such political party. The above mentioned order stipulates
the various conditions which are required to be satisfied before a political party
is entitled for recognition under the said order.
expression "political party" itself is defined under the said order to
mean a political party registered under Section 29A of the Representation of the
People Act, 1951. "Political party' means an association or body of individual
citizens of India registered with the Commission as a political party under Section
29A of the Representation of the People Act, 1951."
In the absence of any
clear definition to the contra in either of the local acts of Maharashtra referred
to earlier, coupled with the established practice in this country that the various
`recognised political parties' under the symbols Order, 1968 set up 9 candidates
at the elections to the local bodies such as the third respondent and they are permitted
to use the symbols which are reserved for them under the provisions of the Election
Symbols (Reservation and Allotment) Order, 1968, the expressions `political party',
`registered party' and `recognised party' occurring in Section 31A of the Municipal
Corporation Act, must necessarily be given the same meaning as assigned to them
in the Representation of the People Act, 1951 and the Election Symbols (Reservation
and Allotment) Order, 1968.
expression "groups", occurring under Section 31A(2), once again, is not
defined but in the context and scheme of the Section, in our view, the expression
"group" must be understood only as meaning - Councillors not belonging
to either a registered political party or a recognised political party, but persons
set up at the Municipal election by an Aghadi as defined under the Disqualification
arrived at the meaning of various undefined expressions employed in Section 31A
of the Municipal Corporation Act, the scheme and purpose of the 2nd proviso to Section
31A(2) is required to be examined. To understand the purport and scheme of the 2nd
proviso to Section 31A(2) of the Municipal Corporation act, we must first examine
relevance of the reference to the Maharashtra Local Authority Members Disqualification
Act, 1986 made in the said proviso, and the purpose sought to be achieved by the
legislature by excluding the application of the said Act through the 10 devise of
employing a non obstante clause.
For a ready reference
the relevant portion of the second proviso may again be extracted which reads as
follows:- "***** notwithstanding anything contained in the Maharashtra Local
Authority Members' Disqualification Act, 1986,********" The State of Maharashtra
made an enactment called Maharashtra Local Authority Members Disqualification Act,
1986. The Act provides for the disqualification of Members of the Local Authorities
i.e. Municipal Bodies and Panchayati Raj Institutions in certain circumstances.
Section 3 of the said Act declares that an elected Councillor of a Municipal Corporation
shall be disqualified for being (i.e. continuing as) a Councillor in three contingencies,
if such person –
(i) voluntarily gives
up the membership of the political party which had set him up as a candidate at
the election to the Municipal Corporation, (ii) on voting or abstaining from voting
in any meeting of the concerned municipal body, contrary to any directions issued
by the political party to which such a person belongs. Section 3 of the Disqualification
Act, in so far as it is relevant for the present purposes, reads as follows:- "
3.(1) Subject to the provisions of [section 5] a councillor ................ belonging
to any political party or aghadi or front shall be disqualified for being a councillor
(a) if he has voluntarily
given up his membership of such political party or aghadi or front; or
(b) if he votes or abstains
from voting in any meeting of a Municipal Corporation, Municipal Council, ............................
contrary to any direction issued by the political party or aghadi, or front to which
he belongs to by any person or authority authorised by any of them in this behalf,
without obtaining, 11 in either case, the prior permission of such political party
or aghadi or front, person or authority and such voting or abstention has not been
condoned by such political party or aghadi or front, person or authority within
fifteen days from the date of such voting or abstention: Provided that, such voting
or abstention without prior permission from such party or aghadi or front, at election
of any office, authority or committee under any relevant municipal law ........................
shall not be condoned under this clause; Explanation.—
For the purpose of this
(a) a person elected as
a councillor, ................ shall be deemed to belong to the political party
or aghadi or front, if any, by which he was set up as candidate for election as
such councillor ........... ;
" [emphasis supplied]
(iii) under sub-section(2) that an elected councillor who had been elected as such
otherwise than as a candidate set up by any political party or aghadi or front (i.e.
an independent councillor) shall be disqualified if he joins any political party
or aghadi after such election.
"(2) An elected councillor,
************** who has been elected as such otherwise than as a candidate set up
by any political party or aghadi or front shall be disqualified for being a councillor,
or as the case may be, a member if he joins any political party or aghadi or front
after such election."
5 of the Act carves out an exception to the Rule contained under Section 3(1) i.e.
it stipulates contingencies in which an elected councillor does not incur the disqualification
contemplated under Section 3(1) notwithstanding the fact that such person parted
ways with the original political party to which he/she originally belonged to. The
complete scheme of Section 5 may not be necessary for the purpose of this case but
we must take note of the fact that Section 5 does not recognise any 12 exception
to the rule contained in Section3(2) with respect to the independent councillors.
second proviso to sub-section (2) of Section 31A enables the formation of a Aghadi
or front within a period of one month from the date of notification of the election
results. Such an Aghadi or front can be formed by various possible combinations
of councillors belonging to either two or more registered parties or recognised
parties or independent councillors. The proviso categorically stipulates that such
a formation of an `Aghadi' or `front' is possible notwithstanding anything contained
in the Disqualification Act. Because an "Aghadi" or "front",
as defined under the Disqualification Act, clearly, can only be the combination
of a group of persons forming themselves into a party prior to the election for
setting up candidates at an election to a local authority but not a combination
of political parties or political parties and individuals.
second proviso to Section 31A (2) of the Municipal Corporation Act which is a later
expression of the will of the sovereign, in contrast to the stipulation as contained
under Section 2(a) and 3(2) of the Disqualification Act, would enable the formation
of post electoral aghadis or fronts. However, such a formation is only meant for
a limited purpose of enabling such aghadis to secure better representation in the
various categories of the Committees specified under Section 31A.
The component parties
or individual independent Councillors, as the case may be, in the case of a given
13 front/aghadi do not lose their political identify and merge in to the aghadi/front
or bring into existence a new political party. There is no merger such as the one
contemplated under Section 5 of the Disqualification Act. It is further apparent
from the language of the second proviso that on the formation of such an Aghadi
or front, the same is required to be registered. The procedure for such registration
is contained in the Maharashtra Local Authority Members Disqualification Rules,
such an Aghadi is registered by a legal fiction created under the proviso, such
an Aghadi is treated as if it were a pre-poll Aghadi or front. The proviso further
declares that once such registration is made, the provisions of the Disqualification
Act apply to the Members of such post poll Aghadi. We do not propose to examine
the legal consequences of such a declaration as it appears from the record that
a complaint has already been lodged against the respondents 6 to 13 herein under
the provisions of the Disqualification Act. The limited question before us is whether
the 1st respondent was legally right in registering an Aghadi or front formed after
the lapse of one month from the date of the notification of the election results.
paras 19 and 20 of the judgment under appeal, the High Court held: "19. Once
it is held that the appointment to the various Committees contemplated under Section
31A of the B.P.M.C. Act takes place more than once, the relative strength of the
recognized parties or registered parties or groups at the time of their appointment
would be relevant. In other words, the relative strength of the parties that was
at the time of registration with a period of one month from the date of notification
of the election results, would be relevant only on the first occasion after the
general elections are held. 14 xxxx xxxx xxxx xxxx xxxx xxxx 20. ............
If the interpretation
suggested by the petitioners is accepted, in our opinion, Rule 3(4) of the Rules
would be rendered otiose. We have already held that the provisions of the Act and
Rules are required to be taken into account while interpreting the provisions of
Section 31A of the B.P.M.C. Act. In view thereof, we are clearly of the opinion
that the appointment of various Committees under Section 31A of the B.P.M.C. Act
not being one time affair, the relative strength of the recognized parties or registered
parties or groups, subject to any change, if any, will have to be taken into account
at the time of appointment of councillors to these committees."
In substance, the High
Court held that the interpretation of the Section 31A depends upon the tenor and
scheme of the subordinate legislation. Such a principle of statutory construction
is not normally resorted to save in the case of interpretation of an old enactment
where the language is ambiguous.
We are conscious of the
fact that there is some difference of opinion on this principle but for the purpose
of the present case we do not think it necessary to examine the proposition in detail
as in our opinion the language of Section 31A is too explicit to require any other
external aid for the interpretation of the same. Subordinate legislation made by
the executive in exercise of the powers delegated by the legislature, at best, may
reflect the understanding of the executive of the scope of the powers delegated.
But there is no inherent guarantee such an understanding is consistent with the
true meaning and purport of the parent enactment.
variations of the relative strength of aghadis would have various legal consequences
provided under the Disqualification Act. Depending upon the fact situation in a
given case, the variation might result in the consequence of rendering some of the
Councillors disqualified for continuing as Councillors. Section 31A of the Municipal
Corporation Act only enables the formation of an aghadi or front within a month
from the date of the notification of the results of the election to the Municipal
Corporation. To permit recognition of variations in the relative strength of the
political parties beyond the above mentioned period of one month would be plainly
in violation of the language of the second proviso to Section 31A.
are, therefore, of the opinion that the judgment under appeal, as well as the impugned
order, cannot be sustained. We allow the appeal and set aside the impugned order.
(SURINDER SINGH NIJJAR)