IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1388 OF 2015
(Arising out of S.L.P. (Civil) No. 28853 of 2013)
Ajay Ramdas Ramteke and Anr. ... Appellants
Versus
Mahanagar Sudhar Samiti, Akola & Ors. ...Respondents
J U D G M E N T
Prafulla C. Pant, J.
Leave granted.
2. The question involved in this appeal is whether respondent no. 1 -
Mahanagar Sudhar Samiti, Akola, an "aghadi" or "front" formed by some of
the elected councillors of respondent no. 5 -Akola Municipal Corporation in
March, 2013, without its registration under second proviso to Section
31A(2) of the Maharashtra Municipal Corporations Act, 1949 (for short
"1949 Act") stood registered and recognized as a party or group for the
purposes of representation, and as such whether the petition filed by
respondent no.1 before the High Court challenging the Standing Committee
constituted under the 1949 Act was maintainable.
3. Brief facts of the case are that elections were held for Akola
Municipal Corporation in February, 2012, wherein 73 councillors were
elected to the House. From amongst elected members, initially 23 members,
and thereafter in all 26 members claimed to have formed an "aghadi" (group
of persons) with the name "Mahanagar Sudhar Samiti". On 5.3.2012, within
one month of the election, leader of the said group submitted an
application before the Divisional Commissioner for its registration under
second proviso to Section 31A(2) of the 1949 Act. It appears that in the
meantime there was a controversy as to whether two of the elected members
projected to be part of the group were actually members of the aghadi
(respondent no.1) or another group Akola Vikas Mahaaghadi (present
respondent no.6). The said issue was decided by the High court by a
detailed judgment dated 08.05.2012 passed in writ petition no. 1426 of 2012
holding that the aforesaid two members were not part of either respondent
no. 1 or 6. Thereafter, the Divisional Commissioner passed a detailed
order on 28.08.2012 whereby the application for registration of respondent
no.1 as aghadi filed in March 2012 was rejected. Said order was not
challenged by any party. However, meanwhile Resolution dated 29.04.2013
was passed by the Akola Municipal Corporation whereby the present
appellants and six others (present respondent nos. 9 to 14) were nominated
in the Standing Committee as members thereof. The Resolution was
challenged by respondent nos. 1 to 3 by filing a Writ Petition no. 2571 of
2013 before the Nagpur Bench of the High Court of Judicature at Bombay. A
preliminary objection was raised on behalf of Mayor (respondent no. 4)
before the High Court that the writ petition was not maintainable.
Defending the Resolution dated 29.04.2013, it was stated that there was no
illegality in nominating the members whose names figured in the Standing
Committee constituted vide Resolution dated 29.04.2013.
4. After hearing the parties, the High Court took the view that
since the application for registration, in the register maintained in Form
IV as per Rule 5 of Maharashtra Local Authority Members' Disqualification
Rules, 1987 (for short "1987 Rules"), was made within time, the respondent
no.1 should have been treated as separate aghadi, and as such non-inclusion
of names of its members for proportional representation in the Standing
Committee invalidates the Resolution dated 29.04.2013. Accordingly, the
High Court quashed the Resolution dated 29.04.2013 and allowed the writ
petition.
5. Aggrieved, by the above order dated 14.08.2013, passed by the
High Court, in Writ Petition No. 2571 of 2013, this appeal is filed by the
appellants who were respondent nos. 6 and 7 before the High Court, through
special leave.
6. It is pleaded on behalf of the appellants that the High
Court has erred in law by accepting the writ petition filed by respondent
nos. 1 to 3 which was not maintainable. It is stated that the High Court
ignored the fact that vide order dated 28.08.2012, the Divisional
Commissioner had rejected the application for registration moved by
respondent No. 1 as separate aghadi. It is further pleaded that
registration of post-poll group or alliance was mandatory under Section 31A
of 1949 Act read with 1987 Rules. It is argued before us that
unregistered aghadi is not an aghadi in the eyes of law, and as such,
neither the same could have been recognized for its representation in the
Standing Committee nor maintain the writ petition in the High Court.
7. On the other hand, on behalf of the respondent nos. 1 to 3,
who were the writ petitioners before the High Court, contended that since
there was no rule or procedure prescribed for registration as such their
only duty was to intimate the Divisional Commissioner under Rule 3 of
1987 Rules about the formation of aghadi, and the rest was the ministerial
work to be completed. The contesting respondent nos. 1 to 3 placed their
reliance in the case of Jeevan Chandrabhan Idnani and Another vs.
Divisional Commissioner, Konkar Bhawan and others (2012) 2 SCC 794.
8. Before further discussion, we think it just and proper to mention as
to what is the meaning of word 'Aghadi', and for what purpose it is
constituted by the councillors of Corporation. Word 'aghadi' is defined in
Clause (a) of Section 2 of Maharashtra Local Authority Members'
Disqualification Act, 1986 (for short "1986 Act") which reads as under:
"2. In this Act unless the context otherwise requires,-
"aghadi" or "front" means a group of persons who have formed themselves
into party for the purpose of setting up candidates for election to a local
authority."
9. Object of allowing elected members to form an aghadi as post-poll
alliance is to give proportional representation of its members to the
various standing committees constituted for functioning of the
Corporations.
10. Second proviso to sub-section (2) of Section 31A of 1949 Act
allows the concillors to form an aghadi after the election to a Municipal
Corporation. Section 31A reads as under:
"31A. Appointment by nomination on 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):-
Standing Committee;
Transport Committee;
Any special Committee appointed under section 30;
Any ad hoc Committee appointed under section 31"
(2) In nominating the Councillors on the Committee, the Corporation
shall take into account the relative strength of the recognized 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:
Provided that, the relative strength of the recognized parties or
registered parties or groups or aghadi or front shall be calculated by
first dividing the total number of Councillors by the total strength of
members of the Committee. The number of Councillors of the recognized
parties or registered parties or groups or aghadi or front shall be further
divided by the quotient of this division. The figures so arrived at shall
be the relative strength of the respective recognized parties or registered
parties or groups or aghadi or front. The seats shall be allotted to the
recognized parties or registered parties or groups or aghadi or front by
first considering the whole number of their respective relative strength so
ascertained. After allotting the seats in this manner, if one or more
seats remain to be allotted, the same shall be allotted one each to the
recognized parties or registered parties or groups or aghadi or front in
the descending order of the fraction number in the respective relative
strength starting from the highest fraction number in the relative
strength, till all the seats are allotted:
Provided further that, for the purpose of deciding the relative strength of
the recognized parties or registered parties or groups under this Act, the
recognized 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 (Mah. XX of 1987), within a period of one month from the date of
notification of election results, from the aghadi or front and, on its
registration, the provisions 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.
(3) If any question arises as regards the number of Councillors to be
nominated on behalf of such party or group, the decision of the Corporation
shall be final".
11. In Jeevan Chandrabhan Idnani (supra), this Court has made following
observations interpreting the second proviso of sub-section 2 of Section
31A:
"26. The second proviso to sub-section (2) of Section 31-A enables the
formation of an 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.
27. Therefore, the second proviso to Section 31-A(2) of the Municipal
Corporations Act which is a later expression of the will of the sovereign,
in contrast to the stipulation as contained under Sections 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 31-A. The
component parties or individual independent Councillors, as the case may
be, in the case of a given front/aghadi do not lose their political
identity and merge into 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, 1987.
28. Once 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 a 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 Respondents 6 to 13 herein under the provisions
of the Disqualification Act. [pic]The limited question before us is whether
the first 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.
XXX XXX XXX XXX
30. In substance, the High Court held that the interpretation of Section 31-
A 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 31-A 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 that such an understanding is
consistent with the true meaning and purport of the parent enactment.
31. Such 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 31-A 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 [pic]beyond the abovementioned period of one month
would be plainly in violation of the language of the second proviso to
Section 31-A."
12. We have already discussed that an aghadi formed after election is
required to be registered as provided in sub-section (2) of Section 31A of
1940 Act. Rule 5 of 1987 Rules, which relates to maintaining a register of
information as to councilors and members, provides as under:
"Register of information as to councilors or members.- (1) The Commissioner
in the case of a councilor of a Municipal Corporation and the Collector, in
the case of any other councilor or member, shall maintain in Form IV, a
register based on the information furnished under rules 4 and 5 in relation
to the councilor of a municipal party, Zilla Parishad party or, as the case
may be, member of a Panchayat Samiti Party."
13. There is no detailed procedure prescribed for registration of
an aghadi. It is evident from Rule 5 quoted above, that power to register
vests with the Commissioner. The word "Commissioner" is defined in clause
(c) of Rule 2 of 1986 Act and the same is reproduced below:
"(c) "Commissioner" means the Commissioner of a revenue division appointed
under Section 6 of the Maharashtra Land Revenue Code, 1966".
14. In earlier round, respondent no. 1 filed writ petition no. 1426
of 2012 challenging Resolution dated 20.03.2012 passed in the General Body
Meeting of Akola Municipal Corporation which was decided by the High Court
with the following two concluding paragraphs:
"30. This discussion leads to conclusion that Respondent Nos. 5 & 6 could
not have been treated as members either of Respondent No. 4 or then of the
petitioner. The proportionate representation of the Petitioner &
Respondent No. 4 on Standing Committee needed to be worked out by ignoring
them. The Petitioner therefore, is rightly given 5 members. But then
there has to be proportionate reduction in representation allotted to
Respondent 4. Strength of Respondent No. 4 in general body of 73 is 33.
It therefore gets 7.23 seats in Standing Committee i.e. 7 seats. One seat
remains vacant and decision about it cannot be taken as Respondent No. 3
Divisional Commissioner has still not completed his exercise of
verification. First proviso to Section 31A(2) does not prohibit
Corporation from filling in such vacancy by nominating on the Committee
any member not belonging to any such party or group. If no such member is
available, Respondent Nos. 1 to 4 as also Petitioner have to start working
with Standing Committee of 15 members only & continue till the Respondent
No. 3 decides on the validity of change or then status of Respondent Nos. 5
& 6. It is settled position that law does not expect compliance with the
impossibilities. Holding of a General Body Meeting for this limited
purpose is essential. If Respondent 3 finds Respondent Nos. 5 & 6 not
disqualified, Corporation can thereafter, proceed to fill in the sixteenth
vacancy.
31. Accordingly, Respondent No. 4 Aghadi as also Respondent Nos. 1 & 2
are directed to bring down representation of Respondent No. 4 on Standing
Committee from 8 to 7. Proceedings and meeting conducted on 20.03.2012 are
quashed & set-aside to that extent. Respondent Nos. 1,2 & 4 to hold a
general body meeting to bring down the strength of representatives of
Respondent No. 4 from 8 to 7. Respondent 1 Corporation is free to fill in
resulting vacancy by nominating on the Standing Committee a Councillor as
per first proviso to Section 31A(2) of the Corporation Act in this meeting.
Said general body meeting be held within period of three weeks from
today. If 16th seat in Standing Committee can not be filled in, the
Respondent Nos. 1 to 4 shall function with Standing Committee of 15 members
only. Petition is thus partly allowed. Rule is made absolute in above
terms. However, there shall be no order as to costs."
But in that round of litigation, Divisional Commissioner was neither a
party, nor any direction was sought against him.
15. Shri Nikhil Nayyar, learned counsel for the respondent no. 1
referred to a copy of letter dated 06.05.2013 (Annexure R1/5) annexed
with the reply on behalf of respondent no. 1 and contended that respondent
1 was registered. Per contra on behalf of appellants, Shri Shekhar
Naphade, learned senior counsel drew our attention to the copy of order
dated 28.8.2012 (Annexure P-5) whereby application for registration of
Mahanagar Sudhar Samiti - respondent no. 1 as an aghadi was rejected by the
Divisional Commissioner, Amravati.
16. Copy of communication dated 06.05.2013 (Annexure R-1/5) issued
by Municipal Secretary, Akola earlier informing that Mahanagar Sudhar
Samiti as one of the registered aghadi is re-produced below:
"O.N.AMNC/NS/25/12
Office of Municipal Secretary
Akola Municipal Corporation
Akola Dated.6/5/13
To Shri Sunil Meshram
Member, MNC
Ward no.8-A
Subject - Regarding the list of Gatneta and Aghadi which are approved by
Divisional Commissioner, Amravati.
|S. No | Name of |Gatneta |
| |Party/Aghadi/Gat | |
|1) |Akola Vikas Mahaaghadi |Shri Madan Babulal Bhargad|
|2) |Mahanagar Sudhar Samiti |Shri Harish Ratanlal |
| | |Alimchandani |
|3) |Shivsena |Smt. Manusha Sanjay Shelke|
|4) |Akola Shahar Vikas Aghadi |Shri Beni Sh. Ganga |
| | |Beniwale. |
The Divisional Commissioner Amravati had issued a letter bearing no.
MNC/Namuna 5/akola/MNC/12/2012 Dtd.7/6/2012 by which it is communicated to
Municipal Corporation that four Aghadi and Gatneta are registered under the
provisions of Maharashtra Local Authorities Members Disqualification Act
and the list of the same is appended herewith
Sd/-
Municipal Secretary Akola"
17. Before above communication the Divisional Commissioner had passed
order dated 28.08.2012, relevant extracts of the same are reproduced as
under:
"BEFORE SHRI GANESH THAKUR, DIVISIONAL COMMISSIONER, AMRAVATI DIVISION,
AMRAVATI.
Case No. 3/Akola M.C/2011-12
Shri Harish Ratanlalji Alimchandani, Party
leader, Mahanagar Sudhar Committee,
Akola, Municipal Corporation, Akola, R/o.
Aalsi Plots, Tq & Distt. Akola ....Applicant
Shri Madan Bodulal Bhargad,
Party Leader, Akola Vikas
Mahaaghadi, Municipal Corporation,
Akola, R/o. Geeta Nagar, Tq &
Distt. Akola ...Applicant
Adv. Milind Vaishnav.... On behalf of Applicant No. 1
O R D E R
As per Maharashtra Local Authority Membership Disqualification Act,
1986 (hereinafter referred to as "Disqualification Act") and Rule 3(a) of
the Maharashtra Local Authority Membership Disqualification Rules, 1987
(hereinafter referred to as "Disqualification Rules") thereunder, on
05/03/2012 Shri Harish Ratanlalji Alimchandani, Party Leader, Mahanagar
Sudhar Samiti, Akola, Municipal Corporation, Akola submitted proposal in
prescribed form for registration of "Mahanagar Sudhar Samiti, Akola",
sponsored by " Bhartiya Janata Party" in the registration book of
Divisional Commissioner Office. Alongwith the present application the
applicant no.1 has filed list of members (List of Councillors). The
applicant no.2, Shri Madan Bodulal Bhargad, Party Leader, Akola Vikas
Aghadi, Municipal Corporation, Akola on 16/03/2012 submitted proposal in
prescribed form as per provisions of Disqualification Act for registration
of Akola Vikas Mahaaghadi sponsored by Bhartiya Rashtriya Congress in
registration book of the office of Divisional Commissioner. Alongwith the
proposal in prescribed form the applicant has submitted list of total 35
members (List of Councillors).
On scrutiny of both the proposals, it comes to the notice that, in the
proposal submitted by applicant no.1 the name of Shri Sanjay Babulal Badone
is at Sr.no.20 and name of Sau. Madhuri Sanjay Badone is at Sr.no.21. So
also, in the proposal filed by applicant no. 2 the name of Shri Sanjay
Babulal Badone is at Sr.no.(Five) (2) and name of Sau. Madhuri Sanjay
Badone is at Sr.no.(Five)(3). As the names of Shri Sanjay Babulal Badone
and Sau. Madhuri Sanjay Badone are mentioned in both the lists, confusion
has been created as to which vanguard/front they are members. Therefore,
by notice dt. 23/03/2012 both the applicants and City Secretary of
Municipal Corporation were informed to remain present for hearing on
27/03/2012 alongwith original documents and proof.
On 27/03/2012 both the applicants alongwith their Advocates and City
Secretary of Municipal Corporation Shri Gajanan Madhusudan Pande remained
present for hearing. In the said case, Adv. G.B. Lohiya advanced argument
on behalf of Municipal Corporation, Akola. Adv. Santosh Rahate advanced
his argument on behalf of Shri Sanjay Babulal Badone and Sau. Madhuri
Sanjay Badone.
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
In the affidavit dt. 14/03/2012 sworn by Shri Sanjay Babulal Badone and
Sau. Madhuri Sanjay Badone there is no name and signatures of witnesses
and on 14/03/2012 the said affidavit has been recorded at Sr.no.174/12 by
Notary Shri R.R. Deshpande, Adv. As per provisions of Indian Evidence Act,
the said affidavit cannot be held as complete unless attested. Therefore,
there is no sufficient scope to treat the said affidavit of Shri Sanjay
Babulal Badone and Sau. Madhuri Sanjay Badone as valid.
After considering all the aspects above in totality and on careful perusal
of concerned documents filed in the case it comes to the notice that, from
the entry made by Stamp Vendor on the stamp papers, the stamp papers appear
to have been purchased on 23/02/2012 for the affidavit of Shri Sanjay
Babulal Badone and Sau. Madhuri Sanjay Badone attached to the proposal dt.
05/03/2012 submitted by applicant no.1 Shri Harish Alimchandani to the
Divisional Commissioner for registering the Mahanagar Sudhar Samiti
sponsored by Bhartiya Janta Party as per provisions of rule 3 of the
Disqualification Rules. Yet the date of attestation being not as
'23/02/2012' it is "22/02/2012". How the affidavit has been sworn on
22/02/2012 by purchasing stamp papers on 23/02/2012 is an incomprehensible
aspect. He filed Xerox copies of said affidavit after receipt of notice in
the case before the Divisional Commissioner. It is a notable aspect that,
Shri Harish Alimchandani has not submitted original copies of affidavits
during hearing of present case.
Shri Sanjay Babulal Badone and Sau. Madhuri Sanjay Badone have been elected
from Prabhag no. 34-A and no.34-B in the Akola Municipal Corporation
elections as independent candidates. As the applicant no.1 and applicant
no.2 have failed to file any kind of reliable documents in regard as to in
which front created in the Akola Municipal Corporation Shri Sanjay Babulal
Badone and Sau. Madhuri Sanjay Badone have participated, I have come to the
conclusion that it does not become clear that definitely to which
vanguard/Committee/front out of Mahanagar Sudhar Committee sponsored by
Bhartiya Janta Party or Akola Vikas Mahaaghadi sponsored by Bhartiya
Rashtriya Congress, Shri Sanjay Babulal Badone and Sau. Madhuri Sanjay
Badone are attached.
Therefore, the following order is being passed.
ORDER
As per provisions of Maharashtra Local Authority Membership
Disqualification Act 1986 and Rule 3(a) of the Maharashtra Local Authority
Membership Disqualification Rules, 1987, the proposal submitted by Shri
Harish Ratanlalji Alimchandani, Party Leader, Mahanagar Sudhar Samiti,
Akola, Municipal Corporation, Akola in prescribed form for registration of
"Mahanagar Sudhar Samiti, Akola", sponsored by Bhartiya Janata Party on
05/03/2012 for registration in the Register Book of the office of
Divisional Commissioner, is hereby rejected.
As per provisions of Maharashtra Local Authority Membership
Disqualification Act 1986 and Rule 3(a) of the Maharashtra Local Authority
Membership Disqualification Rules, 1987, the proposal submitted by Shri
Madan Bodulal Bhargad, Party Leader, Akola Vikas Mahaaghadi, Akola,
Municipal Corporation, Akola in prescribed form for registration of " Akola
Vikas Mahaaghadi Akola", sponsored by Bhartiya Rashtriya Congress Party on
16/03/2012 for registration in the Register Book of the office of
Divisional Commissioner, is hereby rejected.
The said order passed today on 28th August, 2012 under my signature and
seal.
Sd/- 28.08.2012
(Ganesh Thakur)
Divisional Commissioner, Amravati"
18. We have gone through the above two documents. Order dated
28.08.2012 passed by Divisional Commissioner, Amravati, whereby the
application for registration was disposed of, shows that the application of
the writ petitioners was rejected as affidavits of Sanjay Babulal Badone
(respondent no. 14) and Smt. Madhuri Sanjay Badone were not complete. The
two, who were elected from Prabhag no.31 and Prabhag no. 34-B as
independent candidates, failed to file any document to show as to which
group they belonged. Their names figured in two groups.
19. In the order dated 28.08.2012 the Divisional Commissioner also
referred to a serious infirmity in accepting the proposal, as he found that
the affidavit was sworn to and attested on 22.02.2012, whereas the stamps
were purchased on 23.02.2012 which the Divisional Commissioner held to be
an incomprehensible act of the proposer. Such serious infirmities which
weighed with the Divisional Commissioner in passing the order of rejection
dated 28.08.2012 cannot be found fault with. Considering the Scheme of the
1987 Rules, we are convinced that it was incumbent upon the Divisional
Commissioner to hold a meaningful exercise of scrutinizing the proposal for
registration and pass a positive order of registration and then alone the
exception carved out under Section 31A(2) of the 1949 Act, even for the
limited purpose to get rid of disqualification under the 1987 Rules can be
allowed to operate. Viewed in that respect also the order dated 28.08.2012
assumes greater significance and, therefore, unless and until the said
order was set aside in the manner known to law, the formation of the aghadi
as claimed by the first respondent could not have come into effect.
20. It is not disputed that no one challenged the order dated
28.08.2012 passed by the Divisional Commissioner, as such the same has
attained finality. That being so, the Mahanagar Sudhar Samiti, Akola
(respondent no.1) cannot be said to be a registered group as required under
second proviso of sub-section (2) of Section 31A of the Act of 1949. In
our opinion, the High Court has erred in law by ignoring the above order of
the Divisional Commissioner, and holding that respondent no. 1 stood
registered. If there was objection to registration of an aghadi, on the
ground that names of certain members were falsely or wrongly shown in the
list, the Commissioner had no option but to verify the same. And, in such
cases, unless the verification is done, an aghadi can not be said to have
got registered, by merely submitting an application within one month of
election to Municipal Corporation. Had the writ petitioners challenged
order dated 28.08.2012 passed by the Divisional Commissioner, with the
Resolution dated 29.04.2013, the situation would have been different. But
in the present case, order of Divisional Commissioner rejecting application
for registration has attained finality, and same cannot be ignored. As
such, writ petition filed by respondent nos. 1 to 3 questioning validity of
resolution dated 29.04.2013 was liable to be dismissed.
21. Therefore, this appeal deserves to be allowed. Accordingly, the
appeal is allowed and impugned order dated 14.8.2013 passed by the High
Court in Writ Petition no. 2571 of 2013 is hereby set aside, and the
Resolution dated 29.04.2013 shall stand restored. No orders as to costs.
.....................................................J.
[Fakkir Mohamed Ibrahim Kalifulla]
......................................................J.
[Prafulla C. Pant]
New Delhi;
February 02, 2015.
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1388 OF 2015
(Arising out of S.L.P. (Civil) No. 28853 of 2013)
Ajay Ramdas Ramteke and Anr. ... Appellants
Versus
Mahanagar Sudhar Samiti, Akola & Ors. ...Respondents
J U D G M E N T
Prafulla C. Pant, J.
Leave granted.
2. The question involved in this appeal is whether respondent no. 1 -
Mahanagar Sudhar Samiti, Akola, an "aghadi" or "front" formed by some of
the elected councillors of respondent no. 5 -Akola Municipal Corporation in
March, 2013, without its registration under second proviso to Section
31A(2) of the Maharashtra Municipal Corporations Act, 1949 (for short
"1949 Act") stood registered and recognized as a party or group for the
purposes of representation, and as such whether the petition filed by
respondent no.1 before the High Court challenging the Standing Committee
constituted under the 1949 Act was maintainable.
3. Brief facts of the case are that elections were held for Akola
Municipal Corporation in February, 2012, wherein 73 councillors were
elected to the House. From amongst elected members, initially 23 members,
and thereafter in all 26 members claimed to have formed an "aghadi" (group
of persons) with the name "Mahanagar Sudhar Samiti". On 5.3.2012, within
one month of the election, leader of the said group submitted an
application before the Divisional Commissioner for its registration under
second proviso to Section 31A(2) of the 1949 Act. It appears that in the
meantime there was a controversy as to whether two of the elected members
projected to be part of the group were actually members of the aghadi
(respondent no.1) or another group Akola Vikas Mahaaghadi (present
respondent no.6). The said issue was decided by the High court by a
detailed judgment dated 08.05.2012 passed in writ petition no. 1426 of 2012
holding that the aforesaid two members were not part of either respondent
no. 1 or 6. Thereafter, the Divisional Commissioner passed a detailed
order on 28.08.2012 whereby the application for registration of respondent
no.1 as aghadi filed in March 2012 was rejected. Said order was not
challenged by any party. However, meanwhile Resolution dated 29.04.2013
was passed by the Akola Municipal Corporation whereby the present
appellants and six others (present respondent nos. 9 to 14) were nominated
in the Standing Committee as members thereof. The Resolution was
challenged by respondent nos. 1 to 3 by filing a Writ Petition no. 2571 of
2013 before the Nagpur Bench of the High Court of Judicature at Bombay. A
preliminary objection was raised on behalf of Mayor (respondent no. 4)
before the High Court that the writ petition was not maintainable.
Defending the Resolution dated 29.04.2013, it was stated that there was no
illegality in nominating the members whose names figured in the Standing
Committee constituted vide Resolution dated 29.04.2013.
4. After hearing the parties, the High Court took the view that
since the application for registration, in the register maintained in Form
IV as per Rule 5 of Maharashtra Local Authority Members' Disqualification
Rules, 1987 (for short "1987 Rules"), was made within time, the respondent
no.1 should have been treated as separate aghadi, and as such non-inclusion
of names of its members for proportional representation in the Standing
Committee invalidates the Resolution dated 29.04.2013. Accordingly, the
High Court quashed the Resolution dated 29.04.2013 and allowed the writ
petition.
5. Aggrieved, by the above order dated 14.08.2013, passed by the
High Court, in Writ Petition No. 2571 of 2013, this appeal is filed by the
appellants who were respondent nos. 6 and 7 before the High Court, through
special leave.
6. It is pleaded on behalf of the appellants that the High
Court has erred in law by accepting the writ petition filed by respondent
nos. 1 to 3 which was not maintainable. It is stated that the High Court
ignored the fact that vide order dated 28.08.2012, the Divisional
Commissioner had rejected the application for registration moved by
respondent No. 1 as separate aghadi. It is further pleaded that
registration of post-poll group or alliance was mandatory under Section 31A
of 1949 Act read with 1987 Rules. It is argued before us that
unregistered aghadi is not an aghadi in the eyes of law, and as such,
neither the same could have been recognized for its representation in the
Standing Committee nor maintain the writ petition in the High Court.
7. On the other hand, on behalf of the respondent nos. 1 to 3,
who were the writ petitioners before the High Court, contended that since
there was no rule or procedure prescribed for registration as such their
only duty was to intimate the Divisional Commissioner under Rule 3 of
1987 Rules about the formation of aghadi, and the rest was the ministerial
work to be completed. The contesting respondent nos. 1 to 3 placed their
reliance in the case of Jeevan Chandrabhan Idnani and Another vs.
Divisional Commissioner, Konkar Bhawan and others (2012) 2 SCC 794.
8. Before further discussion, we think it just and proper to mention as
to what is the meaning of word 'Aghadi', and for what purpose it is
constituted by the councillors of Corporation. Word 'aghadi' is defined in
Clause (a) of Section 2 of Maharashtra Local Authority Members'
Disqualification Act, 1986 (for short "1986 Act") which reads as under:
"2. In this Act unless the context otherwise requires,-
"aghadi" or "front" means a group of persons who have formed themselves
into party for the purpose of setting up candidates for election to a local
authority."
9. Object of allowing elected members to form an aghadi as post-poll
alliance is to give proportional representation of its members to the
various standing committees constituted for functioning of the
Corporations.
10. Second proviso to sub-section (2) of Section 31A of 1949 Act
allows the concillors to form an aghadi after the election to a Municipal
Corporation. Section 31A reads as under:
"31A. Appointment by nomination on 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):-
Standing Committee;
Transport Committee;
Any special Committee appointed under section 30;
Any ad hoc Committee appointed under section 31"
(2) In nominating the Councillors on the Committee, the Corporation
shall take into account the relative strength of the recognized 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:
Provided that, the relative strength of the recognized parties or
registered parties or groups or aghadi or front shall be calculated by
first dividing the total number of Councillors by the total strength of
members of the Committee. The number of Councillors of the recognized
parties or registered parties or groups or aghadi or front shall be further
divided by the quotient of this division. The figures so arrived at shall
be the relative strength of the respective recognized parties or registered
parties or groups or aghadi or front. The seats shall be allotted to the
recognized parties or registered parties or groups or aghadi or front by
first considering the whole number of their respective relative strength so
ascertained. After allotting the seats in this manner, if one or more
seats remain to be allotted, the same shall be allotted one each to the
recognized parties or registered parties or groups or aghadi or front in
the descending order of the fraction number in the respective relative
strength starting from the highest fraction number in the relative
strength, till all the seats are allotted:
Provided further that, for the purpose of deciding the relative strength of
the recognized parties or registered parties or groups under this Act, the
recognized 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 (Mah. XX of 1987), within a period of one month from the date of
notification of election results, from the aghadi or front and, on its
registration, the provisions 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.
(3) If any question arises as regards the number of Councillors to be
nominated on behalf of such party or group, the decision of the Corporation
shall be final".
11. In Jeevan Chandrabhan Idnani (supra), this Court has made following
observations interpreting the second proviso of sub-section 2 of Section
31A:
"26. The second proviso to sub-section (2) of Section 31-A enables the
formation of an 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.
27. Therefore, the second proviso to Section 31-A(2) of the Municipal
Corporations Act which is a later expression of the will of the sovereign,
in contrast to the stipulation as contained under Sections 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 31-A. The
component parties or individual independent Councillors, as the case may
be, in the case of a given front/aghadi do not lose their political
identity and merge into 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, 1987.
28. Once 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 a 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 Respondents 6 to 13 herein under the provisions
of the Disqualification Act. [pic]The limited question before us is whether
the first 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.
XXX XXX XXX XXX
30. In substance, the High Court held that the interpretation of Section 31-
A 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 31-A 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 that such an understanding is
consistent with the true meaning and purport of the parent enactment.
31. Such 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 31-A 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 [pic]beyond the abovementioned period of one month
would be plainly in violation of the language of the second proviso to
Section 31-A."
12. We have already discussed that an aghadi formed after election is
required to be registered as provided in sub-section (2) of Section 31A of
1940 Act. Rule 5 of 1987 Rules, which relates to maintaining a register of
information as to councilors and members, provides as under:
"Register of information as to councilors or members.- (1) The Commissioner
in the case of a councilor of a Municipal Corporation and the Collector, in
the case of any other councilor or member, shall maintain in Form IV, a
register based on the information furnished under rules 4 and 5 in relation
to the councilor of a municipal party, Zilla Parishad party or, as the case
may be, member of a Panchayat Samiti Party."
13. There is no detailed procedure prescribed for registration of
an aghadi. It is evident from Rule 5 quoted above, that power to register
vests with the Commissioner. The word "Commissioner" is defined in clause
(c) of Rule 2 of 1986 Act and the same is reproduced below:
"(c) "Commissioner" means the Commissioner of a revenue division appointed
under Section 6 of the Maharashtra Land Revenue Code, 1966".
14. In earlier round, respondent no. 1 filed writ petition no. 1426
of 2012 challenging Resolution dated 20.03.2012 passed in the General Body
Meeting of Akola Municipal Corporation which was decided by the High Court
with the following two concluding paragraphs:
"30. This discussion leads to conclusion that Respondent Nos. 5 & 6 could
not have been treated as members either of Respondent No. 4 or then of the
petitioner. The proportionate representation of the Petitioner &
Respondent No. 4 on Standing Committee needed to be worked out by ignoring
them. The Petitioner therefore, is rightly given 5 members. But then
there has to be proportionate reduction in representation allotted to
Respondent 4. Strength of Respondent No. 4 in general body of 73 is 33.
It therefore gets 7.23 seats in Standing Committee i.e. 7 seats. One seat
remains vacant and decision about it cannot be taken as Respondent No. 3
Divisional Commissioner has still not completed his exercise of
verification. First proviso to Section 31A(2) does not prohibit
Corporation from filling in such vacancy by nominating on the Committee
any member not belonging to any such party or group. If no such member is
available, Respondent Nos. 1 to 4 as also Petitioner have to start working
with Standing Committee of 15 members only & continue till the Respondent
No. 3 decides on the validity of change or then status of Respondent Nos. 5
& 6. It is settled position that law does not expect compliance with the
impossibilities. Holding of a General Body Meeting for this limited
purpose is essential. If Respondent 3 finds Respondent Nos. 5 & 6 not
disqualified, Corporation can thereafter, proceed to fill in the sixteenth
vacancy.
31. Accordingly, Respondent No. 4 Aghadi as also Respondent Nos. 1 & 2
are directed to bring down representation of Respondent No. 4 on Standing
Committee from 8 to 7. Proceedings and meeting conducted on 20.03.2012 are
quashed & set-aside to that extent. Respondent Nos. 1,2 & 4 to hold a
general body meeting to bring down the strength of representatives of
Respondent No. 4 from 8 to 7. Respondent 1 Corporation is free to fill in
resulting vacancy by nominating on the Standing Committee a Councillor as
per first proviso to Section 31A(2) of the Corporation Act in this meeting.
Said general body meeting be held within period of three weeks from
today. If 16th seat in Standing Committee can not be filled in, the
Respondent Nos. 1 to 4 shall function with Standing Committee of 15 members
only. Petition is thus partly allowed. Rule is made absolute in above
terms. However, there shall be no order as to costs."
But in that round of litigation, Divisional Commissioner was neither a
party, nor any direction was sought against him.
15. Shri Nikhil Nayyar, learned counsel for the respondent no. 1
referred to a copy of letter dated 06.05.2013 (Annexure R1/5) annexed
with the reply on behalf of respondent no. 1 and contended that respondent
1 was registered. Per contra on behalf of appellants, Shri Shekhar
Naphade, learned senior counsel drew our attention to the copy of order
dated 28.8.2012 (Annexure P-5) whereby application for registration of
Mahanagar Sudhar Samiti - respondent no. 1 as an aghadi was rejected by the
Divisional Commissioner, Amravati.
16. Copy of communication dated 06.05.2013 (Annexure R-1/5) issued
by Municipal Secretary, Akola earlier informing that Mahanagar Sudhar
Samiti as one of the registered aghadi is re-produced below:
"O.N.AMNC/NS/25/12
Office of Municipal Secretary
Akola Municipal Corporation
Akola Dated.6/5/13
To Shri Sunil Meshram
Member, MNC
Ward no.8-A
Subject - Regarding the list of Gatneta and Aghadi which are approved by
Divisional Commissioner, Amravati.
|S. No | Name of |Gatneta |
| |Party/Aghadi/Gat | |
|1) |Akola Vikas Mahaaghadi |Shri Madan Babulal Bhargad|
|2) |Mahanagar Sudhar Samiti |Shri Harish Ratanlal |
| | |Alimchandani |
|3) |Shivsena |Smt. Manusha Sanjay Shelke|
|4) |Akola Shahar Vikas Aghadi |Shri Beni Sh. Ganga |
| | |Beniwale. |
The Divisional Commissioner Amravati had issued a letter bearing no.
MNC/Namuna 5/akola/MNC/12/2012 Dtd.7/6/2012 by which it is communicated to
Municipal Corporation that four Aghadi and Gatneta are registered under the
provisions of Maharashtra Local Authorities Members Disqualification Act
and the list of the same is appended herewith
Sd/-
Municipal Secretary Akola"
17. Before above communication the Divisional Commissioner had passed
order dated 28.08.2012, relevant extracts of the same are reproduced as
under:
"BEFORE SHRI GANESH THAKUR, DIVISIONAL COMMISSIONER, AMRAVATI DIVISION,
AMRAVATI.
Case No. 3/Akola M.C/2011-12
Shri Harish Ratanlalji Alimchandani, Party
leader, Mahanagar Sudhar Committee,
Akola, Municipal Corporation, Akola, R/o.
Aalsi Plots, Tq & Distt. Akola ....Applicant
Shri Madan Bodulal Bhargad,
Party Leader, Akola Vikas
Mahaaghadi, Municipal Corporation,
Akola, R/o. Geeta Nagar, Tq &
Distt. Akola ...Applicant
Adv. Milind Vaishnav.... On behalf of Applicant No. 1
O R D E R
As per Maharashtra Local Authority Membership Disqualification Act,
1986 (hereinafter referred to as "Disqualification Act") and Rule 3(a) of
the Maharashtra Local Authority Membership Disqualification Rules, 1987
(hereinafter referred to as "Disqualification Rules") thereunder, on
05/03/2012 Shri Harish Ratanlalji Alimchandani, Party Leader, Mahanagar
Sudhar Samiti, Akola, Municipal Corporation, Akola submitted proposal in
prescribed form for registration of "Mahanagar Sudhar Samiti, Akola",
sponsored by " Bhartiya Janata Party" in the registration book of
Divisional Commissioner Office. Alongwith the present application the
applicant no.1 has filed list of members (List of Councillors). The
applicant no.2, Shri Madan Bodulal Bhargad, Party Leader, Akola Vikas
Aghadi, Municipal Corporation, Akola on 16/03/2012 submitted proposal in
prescribed form as per provisions of Disqualification Act for registration
of Akola Vikas Mahaaghadi sponsored by Bhartiya Rashtriya Congress in
registration book of the office of Divisional Commissioner. Alongwith the
proposal in prescribed form the applicant has submitted list of total 35
members (List of Councillors).
On scrutiny of both the proposals, it comes to the notice that, in the
proposal submitted by applicant no.1 the name of Shri Sanjay Babulal Badone
is at Sr.no.20 and name of Sau. Madhuri Sanjay Badone is at Sr.no.21. So
also, in the proposal filed by applicant no. 2 the name of Shri Sanjay
Babulal Badone is at Sr.no.(Five) (2) and name of Sau. Madhuri Sanjay
Badone is at Sr.no.(Five)(3). As the names of Shri Sanjay Babulal Badone
and Sau. Madhuri Sanjay Badone are mentioned in both the lists, confusion
has been created as to which vanguard/front they are members. Therefore,
by notice dt. 23/03/2012 both the applicants and City Secretary of
Municipal Corporation were informed to remain present for hearing on
27/03/2012 alongwith original documents and proof.
On 27/03/2012 both the applicants alongwith their Advocates and City
Secretary of Municipal Corporation Shri Gajanan Madhusudan Pande remained
present for hearing. In the said case, Adv. G.B. Lohiya advanced argument
on behalf of Municipal Corporation, Akola. Adv. Santosh Rahate advanced
his argument on behalf of Shri Sanjay Babulal Badone and Sau. Madhuri
Sanjay Badone.
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
In the affidavit dt. 14/03/2012 sworn by Shri Sanjay Babulal Badone and
Sau. Madhuri Sanjay Badone there is no name and signatures of witnesses
and on 14/03/2012 the said affidavit has been recorded at Sr.no.174/12 by
Notary Shri R.R. Deshpande, Adv. As per provisions of Indian Evidence Act,
the said affidavit cannot be held as complete unless attested. Therefore,
there is no sufficient scope to treat the said affidavit of Shri Sanjay
Babulal Badone and Sau. Madhuri Sanjay Badone as valid.
After considering all the aspects above in totality and on careful perusal
of concerned documents filed in the case it comes to the notice that, from
the entry made by Stamp Vendor on the stamp papers, the stamp papers appear
to have been purchased on 23/02/2012 for the affidavit of Shri Sanjay
Babulal Badone and Sau. Madhuri Sanjay Badone attached to the proposal dt.
05/03/2012 submitted by applicant no.1 Shri Harish Alimchandani to the
Divisional Commissioner for registering the Mahanagar Sudhar Samiti
sponsored by Bhartiya Janta Party as per provisions of rule 3 of the
Disqualification Rules. Yet the date of attestation being not as
'23/02/2012' it is "22/02/2012". How the affidavit has been sworn on
22/02/2012 by purchasing stamp papers on 23/02/2012 is an incomprehensible
aspect. He filed Xerox copies of said affidavit after receipt of notice in
the case before the Divisional Commissioner. It is a notable aspect that,
Shri Harish Alimchandani has not submitted original copies of affidavits
during hearing of present case.
Shri Sanjay Babulal Badone and Sau. Madhuri Sanjay Badone have been elected
from Prabhag no. 34-A and no.34-B in the Akola Municipal Corporation
elections as independent candidates. As the applicant no.1 and applicant
no.2 have failed to file any kind of reliable documents in regard as to in
which front created in the Akola Municipal Corporation Shri Sanjay Babulal
Badone and Sau. Madhuri Sanjay Badone have participated, I have come to the
conclusion that it does not become clear that definitely to which
vanguard/Committee/front out of Mahanagar Sudhar Committee sponsored by
Bhartiya Janta Party or Akola Vikas Mahaaghadi sponsored by Bhartiya
Rashtriya Congress, Shri Sanjay Babulal Badone and Sau. Madhuri Sanjay
Badone are attached.
Therefore, the following order is being passed.
ORDER
As per provisions of Maharashtra Local Authority Membership
Disqualification Act 1986 and Rule 3(a) of the Maharashtra Local Authority
Membership Disqualification Rules, 1987, the proposal submitted by Shri
Harish Ratanlalji Alimchandani, Party Leader, Mahanagar Sudhar Samiti,
Akola, Municipal Corporation, Akola in prescribed form for registration of
"Mahanagar Sudhar Samiti, Akola", sponsored by Bhartiya Janata Party on
05/03/2012 for registration in the Register Book of the office of
Divisional Commissioner, is hereby rejected.
As per provisions of Maharashtra Local Authority Membership
Disqualification Act 1986 and Rule 3(a) of the Maharashtra Local Authority
Membership Disqualification Rules, 1987, the proposal submitted by Shri
Madan Bodulal Bhargad, Party Leader, Akola Vikas Mahaaghadi, Akola,
Municipal Corporation, Akola in prescribed form for registration of " Akola
Vikas Mahaaghadi Akola", sponsored by Bhartiya Rashtriya Congress Party on
16/03/2012 for registration in the Register Book of the office of
Divisional Commissioner, is hereby rejected.
The said order passed today on 28th August, 2012 under my signature and
seal.
Sd/- 28.08.2012
(Ganesh Thakur)
Divisional Commissioner, Amravati"
18. We have gone through the above two documents. Order dated
28.08.2012 passed by Divisional Commissioner, Amravati, whereby the
application for registration was disposed of, shows that the application of
the writ petitioners was rejected as affidavits of Sanjay Babulal Badone
(respondent no. 14) and Smt. Madhuri Sanjay Badone were not complete. The
two, who were elected from Prabhag no.31 and Prabhag no. 34-B as
independent candidates, failed to file any document to show as to which
group they belonged. Their names figured in two groups.
19. In the order dated 28.08.2012 the Divisional Commissioner also
referred to a serious infirmity in accepting the proposal, as he found that
the affidavit was sworn to and attested on 22.02.2012, whereas the stamps
were purchased on 23.02.2012 which the Divisional Commissioner held to be
an incomprehensible act of the proposer. Such serious infirmities which
weighed with the Divisional Commissioner in passing the order of rejection
dated 28.08.2012 cannot be found fault with. Considering the Scheme of the
1987 Rules, we are convinced that it was incumbent upon the Divisional
Commissioner to hold a meaningful exercise of scrutinizing the proposal for
registration and pass a positive order of registration and then alone the
exception carved out under Section 31A(2) of the 1949 Act, even for the
limited purpose to get rid of disqualification under the 1987 Rules can be
allowed to operate. Viewed in that respect also the order dated 28.08.2012
assumes greater significance and, therefore, unless and until the said
order was set aside in the manner known to law, the formation of the aghadi
as claimed by the first respondent could not have come into effect.
20. It is not disputed that no one challenged the order dated
28.08.2012 passed by the Divisional Commissioner, as such the same has
attained finality. That being so, the Mahanagar Sudhar Samiti, Akola
(respondent no.1) cannot be said to be a registered group as required under
second proviso of sub-section (2) of Section 31A of the Act of 1949. In
our opinion, the High Court has erred in law by ignoring the above order of
the Divisional Commissioner, and holding that respondent no. 1 stood
registered. If there was objection to registration of an aghadi, on the
ground that names of certain members were falsely or wrongly shown in the
list, the Commissioner had no option but to verify the same. And, in such
cases, unless the verification is done, an aghadi can not be said to have
got registered, by merely submitting an application within one month of
election to Municipal Corporation. Had the writ petitioners challenged
order dated 28.08.2012 passed by the Divisional Commissioner, with the
Resolution dated 29.04.2013, the situation would have been different. But
in the present case, order of Divisional Commissioner rejecting application
for registration has attained finality, and same cannot be ignored. As
such, writ petition filed by respondent nos. 1 to 3 questioning validity of
resolution dated 29.04.2013 was liable to be dismissed.
21. Therefore, this appeal deserves to be allowed. Accordingly, the
appeal is allowed and impugned order dated 14.8.2013 passed by the High
Court in Writ Petition no. 2571 of 2013 is hereby set aside, and the
Resolution dated 29.04.2013 shall stand restored. No orders as to costs.
.....................................................J.
[Fakkir Mohamed Ibrahim Kalifulla]
......................................................J.
[Prafulla C. Pant]
New Delhi;
February 02, 2015.
