Can A Nominated Councillor Be Appointed As Leader Of The House Under Section 19-1A Of The Maharashtra Municipal Corporation Act, 1949?: Bombay High Court Answers

The Petitioner, Ravindra Hemraj Dhangekar, Councillor elected at the Ward elections of the Pune Municipal Corporation held in February 2017 challenged the appointment of Respondent No. 1 as Leader of the House in the Pune Municipal Corporation ('the Corporation'). In the February 2017 Corporation elections, the Bharatiya Janata Party (BJP) secured 99 elected Councillors, the Nationalist Congress Party (NCP) secured 42 elected Councillors, Congress party and Shiv Sena secured 10 Municipal Councillors each. In terms of Rule 5 of the Maharashtra Municipal Corporation (Qualifications and Appointment of Nominated Councillors) Rules, 2012 (hereinafter referred to as 'the 2012 Rules') in proportion to the strength of the House, BJP could nominate three Councillors, NCP could nominate one Councillor and Shiv Sena could nominate one Councillor.

In 2017 Ward elections of the Corporation from Ward No.16 the Petitioner secured the highest number of votes and was elected to the Corporation. Regardless, BJP proposed Respondent No.1 for his appointment as nominated Councillor. Thereafter, Respondent No.1 was by way of resolution in a meeting of the Councillors of BJP appointed as Leader of the Party (BJP), later he came to be appointed as Leader of the House under section 19-1A of the Maharashtra Municipal Corporation Act, 1949 ('the said Act').

Respondent Nos. 1 to 3 contended that the Writ Petition is not maintainable as the Petitioner has no locus standi. Petitioner belongs to the Congress Party and the Respondent No.1 belongs to BJP and the Petition is filed only in an attempt to settle political scores. The respondent relied upon judgments of the Supreme Court in Vinoy Kumar vs. State of U.P., (2001) 4 SCC 734, Jasbhai Motibhai Desai vs. Roshan Kumar, Haji Bashir Ahmed & Ors., (1976) 1 SCC 671 and Charan Singh Sahu vs. Giani Zail Singh & Anr., (1984) 1 SCC 390.

The bench observing that the Petitioner is essentially seeking a writ of quo warranto in seeking the prayer to quash the appointment of Respondent No.1 as Leader of the House, concluded that the Petitioner has locus standi. Reference was made to Central Electricity Supply Utility of Odisha vs. Dhobei Sahoo and others, (2014) 1 SCC 161 which states in paras 21 and 22 as follows:

'21. From the aforesaid exposition of law it is clear as noonday that the jurisdiction of the High Court while issuing a writ of quo warranto is a limited one and can only be issued when the person holding the public office lacks the eligibility criteria or when the appointment is contrary to the statutory rules. That apart, the concept of locus standi which is strictly applicable to service jurisprudence for the purpose of canvassing the legality or correctness of the action should not be allowed to have any entry, for such allowance is likely to exceed the limits of quo warranto which is impermissible. The basic purpose of a writ of quo warranto is to confer jurisdiction on the constitutional courts to see that a public office is not held by usurper without any legal authority. 22. While dealing with the writ of quo warranto another aspect has to be kept in view. Sometimes a contention is raised pertaining to doctrine of delay and laches in filing a writ of quo warranto. There is a difference pertaining to personal interest or individual interest on one hand and an interest by a citizen as a relator to the Court on the other. The principle of doctrine of delay and laches should not be allowed any play because the person holds the public office as a usurper and such continuance is to be prevented by the Court. The Court is required to see that the larger public interest and the basic concept pertaining to good governance are not thrown to the winds.'

Section 19-1A lays down who can be appointed in the Corporation as the Leader of the House. It stipulates that only an 'elected Councillor' shall be eligible to be a Leader of the House. The entire controversy, therefore rests on the term `elected Councillor' appearing in section 19-1A. The bench referred to Illachi Devi (Dead) By LRs. & Ors. vs. Jain Society, Protection of Orphans India & Ors., (2003) 8 SCC 413, wherein the Supreme Court while dealing with interpretation of statutes, observed in paragraphs 40 to 44 as follows:

"40 It is well settled principles of law that a plain meaning must be attributed to the statute. Also, a statute must be construed according to the intention of the legislature. The golden rule of interpretation of a statute is that it has to be given its literal and natural meaning. The intention of the legislature must be found out from the language employed in the statute itself. The question is not what is supposed to have been intended but what has been said. (See Dayal Singh v. Union of India, (2003) 2 SCC 593."

Stating that it is well settled that when the legislature has employed plain and unambiguous language, the Court is not concerned with the consequences arising therefrom, the bench opined that the word 'means' employed in section 2(11) clearly indicates that the word 'Councillor' has to be interpreted in a restrictive manner to mean only an 'elected Councillor'. Section 2, which sets out the definitions of the terms used in the said Act, begins with the words – 'In this Act, unless there be something repugnant in the subject or context-'. Thus, depending on the subject or context, the word 'Councillor' would mean an 'elected Councillor' in some sections and may include a 'nominated Councillor' in other sections. The word 'Councillor' used in section 19-1A is prefaced with the word 'elected'. There is therefore a clear and specific exclusion of all other types of Councillors including 'nominated Councillor'. It is not possible to read the word 'Councillor' in the said Section 19-1A, by relying upon the definition of 'Councillor' under section 2(11) to include even a 'nominated Councillor'.

Referring to Ramesh Mehta Vs. Sanwal Chand Singhvi & Ors. (2004) 5 SCC 40, the bench stated that: "Article 243-R of the Constitution itself recognizes two separate and distinct classes of Councillors viz. elected and nominated, therefore, it can hardly be disputed that there is a clear distinction between elected and nominated Councillors."

The bench regarded that under the 2012 Rules, for the purpose of appointing a person as 'nominated Councillor', the Commissioner has to consult the Leader of the House. Consequently, this supports the contention of the Petitioner that a nominated Councillor is not eligible to be appointed as 'Leader of the House'. As a legislative policy, the Legislature has restricted the eligibility/entitlement to be recognized as a Leader of the House, only and only to an elected Councillor by excluding nominated Councillor, out of the two types of the Councillors included in the definition of the term 'Councillor'.

Respondent relied upon Anil (Vidyarthi) Chanderlal vs. State of Maharashtra, 2016, (2) Mh.L.J. 708, wherein a Full Bench of Bombay High Court has held that a nominated Councillor can be equated with a Councillor elected at Ward election, and both direct election and nomination are nothing but elections. However, the bench noted that the judgment of the Full Bench is only in the context of section 16 of the said Act (and section 21 of the Maharashtra Municipal Council, Nagar Panchayat and Industrial Township Act, 1965, which is a similar provision, with which we are not concerned in the present case).

The bench stated: "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 held that that a 'nominated Councillor' is not an 'elected Councillor' within the meaning of section 19-1A and unless a person is an elected Councillor, in that, he is directly elected at Ward elections, he is not eligible to be appointed as 'Leader of the House' under section 19-1A and quashed the appointment of Respondent No. 1 as Leader of the House in Pune Municipal Corporation. It is pertinent to note that upon an assurance of the learned Senior Counsel that the Respondent No. 1 would not discharge functions as Leader of the House in the Corporation, we stay the operation of this order for a period of 2 weeks.