"Politically Motivated": Bombay High Court Dismisses BJP & MNS Members' PIL Against Draft Notification By Municipal Commissioner To Increase Civic Wards

A bench of Justices AA Sayed and Abhay Ahuja refused relief in a plea filed by Nitesh Singh of the Bharatiya Janata Party (BJP) along with Advocate Rajhans Singh of the Maharashtra Navnirman Sena (MNS) against a draft notification by the Municipal Commissioner to increase the number of municipal wards.

The draft notification inviting objections was issued under section 5 and 18A of the Mumbai Municipal Corporation Act, 1888 and ahead of the elections to be held next month.

The notification was challenged on two grounds-

1.The State Election Commission (SEC) being an independent body cannot delegate its power to the Municipal Commissioner, a state government employee.

2.The SEC is barred from altering boundaries of wards for six months before the elections.

The bench held that under Article 243ZA(2) the state is permitted to make provisions regarding election to Municipalities. In Maharashtra, the State Election Commissioner may by order delegate any of his powers and functions to any officer of the Corporation not below the rank of the Ward Officer according to section 18(2) of the MMC Act.

"In the teeth of the aforesaid provision of Section 18A(2) of the MMC Act …we fail to see how it is open for the Petitioners to contend that no power can be delegated by the State Election Commissioner upon the Municipal Commissioner to publish the impugned draft Notification."

The bench distinguished the present case from the Supreme Court's decision in State of Goa & Anr. Vs. Fouziya Imtiaz Shaikh & Anr stating that this case was only about issuance of a draft notification.

In the SC case, the State's decision to give the Law Secretary, Goa, additional charge as State Election Commissioner was quashed observing that the SEC must be independent.

The court also recorded SEC's submission that it has 'skeletal staff' and most of the persons working on deputation for SEC are employees of the State Government. Moreover, the final decision of re-drawing ward boundaries is taken by the State Election Commissioner.

Regarding the second submission on addition in number of wards, the High Court held that according to an SEC order from January 27, 2005 there is a bar on re-drawing the limits of a municipal corporation six months before the election. However, "The bar does not apply to alteration of Ward boundaries within the Corporation area."

There should not be any inclusion/exclusion of area within/from the area of the Corporation within six months prior to the month of election, it clarified.

The SEC order had been misread, the court held. Redrawing internal wards was necessary to accommodate the 9 new councillors (from 227 to 236) who were added after an amendment to the MMC Act in November 2021.

"For the aforesaid reasons, we find that the PIL Petition is thoroughly misconceived. The PIL Petition, filed by members of rival political parties to the ruling coalition government, appears to be politically motivated ostensibly filed in public interest, and without any averment whether the Petitioner had raised any objections to the draft Notification, for which the last date was 14 February 2022...The PIL Petition is filed without the mandatory averments and disclosures required to be made under Bombay High Court Public Interest Litigation Rules, 2010," the bench held.

Case Title: Nitesh Singh & Anr. v. Municipal Corporation of Gr. Mumbai & Ors.

Citation: 2022 LiveLaw (Bom) 47

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