Case Note & Summary
The matter comprised two writ petitions under Article 226 of the Constitution of India heard together by a Division Bench of the Bombay High Court. The first petition, Writ Petition (St.) No.98279 of 2020, was filed by four individuals, including three nominated councillors of the Mira Bhayandar Municipal Corporation and a BJP group leader, seeking to set aside the decision dated 7 December 2020 and communication dated 8 December 2020 of the Minister for Urban Development and Public Works Department and the State of Maharashtra. The second petition, Writ Petition No.3654 of 2020, was filed by Nitesh Sudharkar Mungekar challenging the Corporation's resolution No.26 regarding subject No.35 passed on 7 December 2020.
The background involved the election of 95 councillors in August 2017, with BJP winning 61 seats, Shiv Sena 22, and Congress Lokshahi Aghadi 12. Under Rule 3 of the Maharashtra Municipal Corporation (Qualifications and Appointment of Nominated Councillors) Rules, 2012, five persons were to be nominated after the general elections. A public notice was issued on 24 January 2020, six nominations were received, one candidate withdrew, and on 13 February 2020 the Municipal Commissioner declared six candidates valid. Objections were raised on 3 October 2020 regarding the eligibility of respondent no.5, Vikram Pratap Singh, who was associated with a foundation that had received a work order from the Corporation. The Municipal Corporation in its meeting on 7 December 2020 resolved to appoint petitioners 1-3 and one Shafique Ahmed Shadad Khan as nominated councillors, while rejecting respondent no.5 on the ground that he was disqualified under Section 10(1)(f) read with Section 11(a) of the Maharashtra Municipal Corporation Act, 1949. The resolution passed with 38 councillors voting in favour and 24 against. Respondent no.4, Geeta Jain, then allegedly filed a complaint before the Minister, which resulted in the Minister staying the entire resolution pending a detailed report.
The petitioners contended that the Minister's stay violated Section 451(1) because no opinion was formed that the resolution was in contravention of law, likely to breach peace, cause injury or annoyance, or waste municipal funds. They argued that the complaint was limited to rejection of one candidate's nomination, yet the Minister stayed the entire resolution, thereby acting without application of mind and exceeding jurisdiction. The petitioners maintained that they were qualified under Rules 3 and 4 of the 2012 Rules and that due procedure was followed. They also pointed to alleged political motivation of respondent no.4, who originally belonged to BJP and later joined Shiv Sena after electoral defeat.
The court heard the submissions of Dr. Birendra Saraf, senior counsel for the petitioners, who placed reliance on Section 451(1) and the 2012 Rules, and argued that the Minister had not formed the requisite opinion before passing the stay order. The excerpt of the judgment records these submissions and the factual matrix but does not include the court's final reasoning or operative order, as the provided text ends before the decision. Consequently, the final holding and directions are not available from the text.
Headnote
A) Constitutional Law - Writ Jurisdiction - Article 226 of Constitution of India - Invocation of High Court's writ jurisdiction to challenge ministerial stay and municipal resolution; both petitions heard together. (Paras 2-3)
B) Municipal Law - Powers of Minister to Suspend Municipal Resolution - Section 451(1) of Maharashtra Municipal Corporation Act, 1949 - Minister required to form opinion on specified grounds before suspending resolution; alleged failure to form opinion and record reasons before staying entire resolution. (Paras 14-15, 17)
C) Municipal Law - Nominated Councillors - Qualifications and Appointment - Section 10(1)(f), Section 11(a) of Maharashtra Municipal Corporation Act, 1949 read with Rules 3 and 4 of Maharashtra Municipal Corporation (Qualifications and Appointment of Nominated Councillors) Rules, 2012 - Corporation resolution declared petitioners 1-3 as nominated councillors and rejected respondent no.5 due to alleged interest in foundation having corporation work order; challenge to procedure and qualifications. (Paras 5-9, 16)
D) Administrative Law - Bias and Limited Scope of Complaint - Minister's stay of entire resolution despite complaint limited to one candidate's nomination; allegation of political motivation and lack of application of mind; court was considering whether stay exceeded scope of complaint and Section 451(1) requirements. (Paras 11-13, 14, 17)
Issue of Consideration
Whether the Minister's stay of the entire municipal resolution was valid under Section 451(1) of the Maharashtra Municipal Corporation Act, 1949; whether the nominated councillors were validly appointed under the 2012 Rules; whether the Minister's order lacked application of mind and exceeded the scope of the complaint
Law Points
- Minister must form opinion on specified grounds before suspending municipal resolution under Section 451(1)
- order must record reasons
- nominated councillors qualification under 2012 Rules
- municipal corporation's power to reject candidate under Section 10(1)(f) read with Section 11(a)
- Article 226 writ jurisdiction
Case Details
2021 LawText (BOM) (02) 29
Writ Petition (St.) No.98279 of 2020 along with Writ Petition No.3654 of 2020
Dr.Birendra Saraf, Ms.Aseem Naphade, Tarun Sharma, Sandesh Patil, Chintan Shah, Samit Shinde, P.S. Gole, P.P. Kakade, Y.D. Patil, Y.S. Jahagirdar, Mayuresh Lagu
Ajit Bhagwan Patil, Anil Baburao Bhosale, Bhagwati Tuganchand Sharma, Hasmukh Gehlot (Petitioners in WPST/98279/2020); Nitesh Sudharkar Mungekar (Petitioner in WP/3654/2020)
State of Maharashtra, Mira Bhayandar Municipal Corporation, Eknath Shinde, Geeta Jain, Vikram Pratap Singh, Mayor Mira Bhayander Municipal Corporation, Mr.S.A. Khan, Bhagwati Sharma, Anil Bhosale, Ajit B. Patil
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Nature of Litigation
Two writ petitions under Article 226 of Constitution of India challenging ministerial stay of municipal resolution and municipal corporation resolution regarding nomination of councillors.
Remedy Sought
WPST 98279/2020 sought setting aside decision dated 7 December 2020 and communication dated 8 December 2020 of Minister and State; WP 3654/2020 sought to impugn resolution number 26 regarding subject no.35 passed on 7 December 2020 by Corporation.
Filing Reason
Petitioners in first petition alleged Minister stayed entire resolution without forming opinion under Section 451(1); petitioner in second petition challenged Corporation resolution rejecting one candidate's nomination.
Issues
Whether the Minister's stay order dated 7/8 December 2020 was valid under Section 451(1) of Maharashtra Municipal Corporation Act, 1949.
Whether the Minister was required to form an opinion on specified grounds and record reasons before suspending the entire resolution.
Whether the nominated councillors (petitioners 1-3) were validly appointed under Rules 3 and 4 of the 2012 Rules.
Whether the Minister's stay exceeded the scope of the complaint which was limited to rejection of respondent no.5's nomination.
Whether the Minister's order lacked application of mind and was politically motivated.
Submissions/Arguments
Respondent no.4 originally belonged to BJP and after electoral defeat joined Shiv Sena, indicating political motivation.
Minister stayed the entire resolution though complaint was limited to rejection of respondent no.5's nomination, in violation of Section 451(1).
Minister did not form opinion as required under Section 451(1) that resolution was in contravention of law, likely to breach peace, cause injury or annoyance, or waste municipal funds.
Minister failed to record reasons before suspending the resolution.
Petitioners 1-3 were qualified under Rules 3 and 4 of 2012 Rules and Corporation followed due procedure for nomination.
Judgment Excerpts
The petitioners in Writ Petition (St.) No.98279 of 2020 have invoked Article 226 of the Constitution of India and have prayed for setting aside the decision dated 7th December 2020 and communication dated 8th December 2020 of the respondent nos.3 - Minister for Urban Development and Public Works Department and the respondent no.1 respectively.
He strongly placed reliance on Sub-section (1) of Section 451 of the said Act and would submit that for suspending the resolution passed by the respondent no.2 Corporation, learned Minister was required to form an opinion that the execution of such resolution or order of the Corporation was in contravention of or in excess of the powers conferred by or under this Act or any other law for the time being in force, or is likely to lead to a breach of the peace or to cause injury or annoyance to the public or any class or body of persons, or is likely to lead to abuse or misuse of or to cause waste of municipal funds against the interest of the public or was likely to be against the financial interest of the Corporation or against larger public interest.
It is submitted by the learned senior counsel that the impugned order passed by the learned Minister is without application of mind and is in contravention of Sub-section (1) of Section 451 of the said Act.
Procedural History
August 2017: election for 95 councillors in Mira Bhayandar Municipal Corporation; BJP won 61 seats, Shiv Sena 22, Congress Lokshahi Aghadi 12. 24 January 2020: public notice issued for nomination of 5 persons as nominated councillors; six nominations filed. 13 February 2020: Municipal Commissioner declared six candidates valid after scrutiny. 3 October 2020: objections raised regarding eligibility of respondent no.5. 22 October 2020: Municipal Corporation meeting; objections regarding respondent no.5 rejected; one candidate withdrew candidature. 4 December 2020: Municipal Commissioner issued minutes recommending five names. 7 December 2020: Municipal Corporation passed resolution appointing petitioners 1-3 and Shafique Ahmed Shadad Khan as nominated councillors, rejecting respondent no.5; resolution passed with 38 votes in favour and 24 against. Shiv Sena proposed alternative resolution to include respondent no.5, which was rejected. Respondent no.4 filed complaint before Minister; Minister passed stay order pending detailed report. Writ petitions filed challenging ministerial stay and corporation resolution. Both petitions heard together on 5 February 2021.
Acts & Sections
- Constitution of India: Article 226
- Maharashtra Municipal Corporation Act, 1949: Section 10(1)(f), Section 11(a), Section 451(1)
- Maharashtra Municipal Corporation (Qualifications and Appointment of Nominated Councillors) Rules, 2012: Rule 3, Rule 4
