Nominated Councillor Cannot Be Appointed As Leader Of The House : Bombay High Court

A division bench of Justices AA Sayed and SG Dige observed that under section 19-1A only an elected councillor, directly elected at Ward elections, is eligible to be appointed as 'Leader of the House.'

It therefore allowed a petition filed by elected councillor Ravindra Dhangekar against the appointment of BJP's Ganesh Bidkar, a nominated councillor of Pune, as Leader of the House.

The court observed that in a democratic set-up, a councillor who was not elected though ward elections cannot by a "backdoor entry" become the Leader of the House after being nominated by the party with maximum number of elected councillors.

"The word 'Leader' means a person who leads - he must lead by example. Prima facie, it seems illogical and difficult for us to comprehend that after being defeated by will of the majority at the Ward election by process of ballot, how Respondent can be eligible to be appointed as 'Leader of the House' of a Corporation comprising of 175 elected Councillors (elected by the process of ballot at the Ward 30 election) and only 5 nominated Councillors [who are in the Corporation essentially in an advisory capacity as held by the three-judge."

The bench stayed the operation of the order for two weeks to allow Bidkar time to appeal against the order after he undertook not to discharge functions as Leader of the House in the Corporation.

Facts of the Case

Both Dhangekar and Bidkar has contested ward elections from Ward No. 16 in Pune in 2017. While petitioner Dhangekar won and was elected to the corporation, Bidkar was unsuccessful. However, BJP proposed Bidkar's name as a nominated councillor. Subsequently on 11 December 2020, Bidkar was appointed as Leader of the Party (BJP) in the Corporation and thereafter, he was appointed as Leader of the House.

In view of section 5 of the MM Act which deals with constitution of the corporation, a maximum of 5 'nominated councillors' are permitted in the corporation apart from elected councillors. In the 2017 election BJP had the highest number of elected councillors.

Elected Councillor and Nominated Councillor

Section 19-1A stipulates that only an 'elected Councillor' shall be eligible to be a Leader of the House. Therefore, the entire controversy rests on the term `elected Councillor' appearing in section 19-1A.

Bidkar represented by senior advocate Ravi Kadam submitted that the definition of 'councillor' includes 'nominated councillor.' They further argued that Section 2(11) of the 2012 Rules under the MMC Act don't bar a nominated councillor from being appointed as leader of the house.

Significantly, Kadam argued that a full bench in Anil (Vidyarthi) Chanderlal Ailani vs. State of Maharashtra, 2016 (2) interpreted 'elected' appearing in Section 16 of the said Act and held that 'election' would also mean 'nomination.'

Observations

The court held that in section 19- 1A, 'Councillor' is clearly prefaced with the word 'elected'. "There is therefore a clear and specific exclusion of all other types of Councillors including 'nominated Councillor'."

"If the intention of the Legislature was to treat both the categories of Councillors equally and to include even a nominated Councillor to be eligible to be appointed as Leader of the House under section 19-1A, the said section would have simply said 'Councillor' and not 'elected Councillor'."

The court noted that only because nominated councillors and elected councillors a judicially held to be treated equally, under certain circumstances they can't be treated as one and the same for all purposes of the Act.

"It is worthwhile to note that in every aspect these two types Councillors differ from each other, be it their route of entry into the Corporation, their right to vote, etc. Separate set of Rules are provided which lay down the method and manner of nominating Councillor to the Corporation,"

Significantly the court held that it is well settled that the provisions of a statute must be read as it is and be given plain and simple meaning. "If the words of the statute are clear and unambiguous, they are required to be interpreted in their plain, natural and ordinary sense. Every word used by the Legislature is presented to be with definite purpose. The Court cannot read a law as if the language is different from what it actually is, as it would tantamount to amending the law."

The bench also rejected other contentions raised by the respondents.

"The principles of a democratic setup and polity need to be adhered to. A person who was not successful in the Ward elections cannot by an indirect method or backdoor entry become the Leader of the House, as in the present case. If the Legislature has placed an embargo upon a nominated Councillor by providing in section 2(11) that a nominated Councillor shall not have the right to vote or become a Mayor or for that matter even a Chairperson of a Committee, we do not think the Legislature intended to allow a nominated Councillor to become the Leader of the House," the bench further observed.

Condition of Locus Standi Can be Relaxed For Writ of Quo Warranto

Senior Advocate Kadam contended that the petition was not maintainable for want of locus as Dhangekar, who was from the Congress, was not an aggrieved party. He argued that the petition was filed to settle political scores.

The bench observed ordinarily a petitioner must have locus standi to invoke the court's writ jurisdiction, however, this legal position is relaxed when a petitioner is seeking a writ like habeas corpus or quo warranto.

"The Petitioner is therefore essentially seeking a writ of quo warranto in seeking the prayer to quash the appointment of Respondent No.1 (Bidkar) as Leader of the House," therefore the petition is maintainable.

Case Title: Ravindra Hemraj Dhangekar V/S Ganesh Madhukar Bidkar & Ors. 

Citation: 2022 LiveLaw (Bom) 68

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