"A Mere Change Of Heart Cannot Justify Removal Of Incumbent Leader Of Opposition"; Bombay HC Dismisses BJP Leader's Plea Seeking To Be Recognized As LOP In MCGM [Read Judgment]

Division bench of Justice SJ Kathawalla and Justice Madhav Jamdar observed that a mere volte-face or change of heart or decision to increase one's extent of participation whilst in opposition, cannot justify the removal of an incumbent Leader of Opposition who was otherwise duly appointed in accordance with law and as a result of the BJP's express refusal to accept the post in 2017.

Case Background

The elections for electing Councillors of the MCGM were conducted on February 21, 2017, and the results declared, were as under: Shiv Sena- 84, BJP- 82, INC- 31, NCP- 9, MNS- 7, SP- 6, AIMM- 2 and Others- 6.

A meeting of all the above 82 elected Councillors of the BJP was held on March 3, 2017 where it was unanimously decided that Manoj Kotak would be the Group Leader of the BJP in the MCGM. Then BJP President Ashish Shelar, addressed a letter dated March 3, 2017 to the Divisional Commissioner, Municipal Administration informing him about the said meeting held on that day and about the decision appointing Manoj Kotak as the Group Leader of the BJP in MCGM.

The BJP decided to remain neutral in the MCGM and to play the role of a "Paharekari" i.e. to maintain surveillance. In the General Body Meeting of the MCGM held on March 30, 2017, Ravi Raja from the INC demanded that the post of the Leader of Opposition be given to the BJP, considering that it is the largest Party in Opposition, and in case the BJP declines, then it be given to the INC being the second largest Party in opposition.

This meeting was adjourned by the Mayor in order to seek a legal opinion from the Legal Department of the MCGM in this regard. The Legal Department issued an opinion dated April 7, 2017, wherein it was opined that the post of Leader of Opposition should be offered by the Mayor to the second largest party i.e. the BJP and if the second largest party declines, it be offered to the third largest party i.e. the INC. This legal opinion inter alia took into consideration Section 371A of the Mumbai Municipal Corporation Act, 1888

Following the aforesaid, a meeting of the MCGM was convened on April 11, 2017. At this meeting, Manoj Kotak was offered the post of the Leader of Opposition. However, he informed the Mayor that the BJP was not interested in occupying the post of Leader of Opposition. Since the BJP refused to accept the post of Leader of Opposition, in compliance with the legal opinion obtained by the Mayor, the post of Leader of Opposition was offered by the Mayor to Raja Ravi of INC being the second largest Party in Opposition. This proposal was accepted and as a result Raja Ravi came to be appointed as Leader of Opposition in the MCGM.

Subsequently, after a lapse of almost 3 years from the appointment of Raja Ravi as Leader of Opposition, the new President of the BJP's umbai Unit, Mangal Prabhat Lodha addressed a letter dated February 28, 2020 to the Mayor requesting that the petitioner, Prabhakar Shinde be recognized as the Group Leader of BJP and that he also be appointed as the Leader of Opposition.

Submissions

Senior Advocate Dr.Birendra Saraf appeared on behalf of the petitioner. He submitted that the use of the word "shall" in Section 371A of the MMC Act indicates that the provision is mandatory and that the use of the words "for the time being" indicate that the Leader of Opposition need not be permanent.

Moreover, he contended that the decision of the Mayor is not 'final and conclusive' insofar as recognition of the Leader of Opposition is concerned and that he has proceeded on an ex-facie erroneous understanding and application of the legal position which has led to the perverse and illegal decision.

If the Leader of the largest Opposition Party is willing to take up the responsibility, the law does not deny him the same, merely because he had initially expressed unwillingness to do so for various considerations. There can be no waiver of a statutory right, Saraf argued.

On the other hand, Senior Advocate Ravi Kadam appeared on behalf of the Mayor of MCGM. He argued that the BJP has passed over its right to the post of Leader of Opposition and by following the due process of law, which the BJP has also accepted, Raja Ravi (Respondent No.4) of INC is performing the role of the Leader of Opposition since the last three years.

Merely because the BJP wants to more actively oppose the ruling party, it is not entitled to stake a claim to a post which is not vacant. There is no instance contemplated by the provisions of law, which permits a party to take a decision as to whether it will be more active or less active in opposition, Kadam contended.

In conclusion, the former Advocate General of Maharashtra said-

"A lawfully and duly appointed Leader of Opposition cannot be removed merely because the BJP decides that it wants to be a more active opposition than it already is."

Judgment

At the outset, Court relied upon the High Court's 'very illustrative and elaborate' decision in Vishnu Shivram Mehere vs. City of Akola Municipal Corporation wherein Court has interpreted Section 191AA of the Bombay Provincial Municipal Corporation Act, 1949, which is identical to Section 371 of the MMC Act.

The aforesaid decision duly recognizes the importance of the post of a Leader of Opposition and provides for a mechanism to deal with a situation where the leader of the largest party in opposition, declines the said post. This Court came to the conclusion that there was nothing wrong in recognizing a Corporator belonging to the party having the second highest strength as the Leader of the Opposition in the circumstances where the largest party refuses to shoulder the said responsibility.

This is exactly what was done in 2017, when Respondent No.4 was appointed Leader of the Opposition after the BJP's refusal, Court noted.

Moreover, the bench observed-

"At the relevant time, i.e. in 2017, none of the parties before us appear to have contested the fact that BJP was the "party in opposition having the greatest numerical strength". As a result, in compliance with the mandate of Section 317A, the post of Leader of Opposition was duly offered to the Leader of BJP. However, for reasons best known to them, the BJP and its Leader expressly declined to accept the post.

As a result, Respondent No.4 came to be appointed as the Leader of Opposition in compliance with the mandate of Section 371A and the principles enunciated in this Court's decision in Vishnu. In one sense, therefore, the appointment of Respondent No.4 attained finality in the facts and circumstances then prevalent. The appointment of Respondent No.4 is today sought to be unsettled on the ground of a mere change of mind by the BJP, as there is no other judicially recognized circumstance canvassed before us, such as change in the party in opposition, or its numerical strength, which are some of the accepted parameters for re-visiting the decision to change the post of the Leader of Opposition."

Finally, Court referred to Manoj Kotak's statement from the General Body Meeting held at March 23, 2017 wherein he as the Group Leader of BJP had expressly refused to accept the post of Leader of Opposition. The bench noted-

"We are in respectful agreement with the aforesaid finding of this Court that an "Unwilling person or party cannot be trusted with the responsibility of the office of the Leader of Opposition." This being the law, a mere volte-face or change of heart or decision to increase one's extent of participation whilst in opposition, cannot justify the removal of an incumbent Leader of Opposition who was otherwise duly appointed in accordance with law (and as a result of the BJP's express refusal to accept the post)."

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