Case Note & Summary
Background: The dispute concerned the method of constitution of Standing Committees in Municipal Corporations under Section 31A of the Bombay Provincial Municipal Corporations Act, as amended by the Maharashtra Municipal Corporation (Amendment) Act, 2007. The Act contemplated proportional representation based on the strength of recognised parties, groups, or fronts in the General Body, with a proviso enabling nomination of councillors not belonging to such entities. Facts: A Division Bench of the Bombay High Court, in Vasant Gite v. Municipal Corporation of City of Nashik, decided on 30 April 2007, laid down a specific method for calculating the quotient for party-wise representation. It held that the total number of elected councillors should be divided by the strength of the Standing Committee (e.g., 108/16 = 6.75), and fractions of 0.5 or more rounded up to one, while fractions below 0.5 ignored. The same Bench further held that a recognised party entitled to a quota could nominate a councillor not belonging to it, relying on the proviso. This view was subsequently doubted by another Division Bench in Writ Petition No. 5857 of 2008, which considered that allowing a party to nominate a non-member councillor would defeat the Maharashtra Local Authority Members' Disqualification Rules, 1987. The Bench therefore referred the question to a larger bench. Meanwhile, another Division Bench in Writ Petition No. 7938 of 2008 framed additional questions concerning the interpretation of Section 31A(2), including the meaning of "as nearly as may be", the inclusion of independent councillors in the calculation of strength, and the nature of the proviso. Legal Issues: Five questions were ultimately referred to the Full Bench: (1) whether a party entitled to a quota can nominate a member not belonging to it; (2) whether the procedure laid down in Vasant Gite for determining party-wise representation is consistent with Section 31A(2); (3) whether the phrase "in proportion to the strength of such parties or groups" includes independent councillors; (4) whether the first proviso is merely enabling/discretionary and creates no vested right; and (5) whether nomination to the Standing Committee must be only from councillors representing recognised parties, registered parties, groups or fronts. Arguments: Mr. Vashi, for the petitioners, argued that the Vasant Gite method of ignoring fractions below 0.5 was contrary to the express language of the Act and that the expression "as nearly as may be" permitted deviation but did not justify a rigid cut-off. He submitted that all fractions should be considered and seats allotted in descending order of fractions, and that nomination should be confined to councillors from recognised parties. Mr. Anturkar, for the respondents, contended that no universal formula could be imposed and that the proviso gave the General Body the power to nominate any member, ensuring true representation. He argued that the legislature had intentionally provided flexibility and that the Vasant Gite interpretation was correct. Court's Analysis: The Full Bench recorded the submissions at length, noting the divergent views and the need for an authoritative interpretation. No final decision appears in the provided excerpt; the matter was reserved for judgment after hearing arguments that also included submissions by Mr. Dhake (which remain incomplete in the text). The historical background, including the dismissal of SLPs against the Vasant Gite judgment, was noted. Decision: Not mentioned.
Headnote
A) Municipal Corporation - Constitution of Standing Committee - Proportional Representation - Method of calculating quotient under Section 31A(2) - Bombay Provincial Municipal Corporations Act, Section 31A(2) - The Division Bench in Vasant Gite v. Municipal Corporation of City of Nashik held that quotient is obtained by dividing total assembly seats by committee size (e.g., 108/16 = 6.75), and fractions of 0.5 or more counted as one, below 0.5 ignored. The question referred to Full Bench is whether this procedure is consistent with the scheme of the Act. (Paras 1, 3)
B) Municipal Corporation - Standing Committee - Nomination of Members - Scope of proviso to Section 31A(2) - Whether a recognised party can nominate a councillor not belonging to it - Bombay Provincial Municipal Corporations Act, Section 31A(2) and Maharashtra Local Authorities Members Disqualification Rules, 1987 - The Division Bench in W.P. No. 5857/2008 doubted the view in Vasant Gite which allowed such nomination, considering it may defeat disqualification rules; referred to Full Bench. (Paras 2, 3)
C) Constitutional Law - Words and Phrases - "As nearly as may be" - Interpretation - Bombay Provincial Municipal Corporations Act, Section 31A(2) - Section 31A(2) uses phrase "as nearly as may be" for proportional representation; judicial precedents cited (Jayshekar Prasad v. State of Bihar, R.C. Poudyal v. Union of India) to contend it permits deviation; issue of whether strict mathematical proportion is required or approximation is enough forms part of reference. (Para 4)
D) Municipal Corporation - Standing Committee - Inclusion of Independent Councillors - Whether the words "in proportion to the strength of such parties or groups in the Corporation" include independent councillors - Bombay Provincial Municipal Corporations Act, Section 31A(2) - Question referred to Full Bench. (Para 3)
E) Municipal Corporation - Standing Committee - Nomination - Vested Right - Whether the first proviso to Section 31A(2) is enabling/discretionary and does not create a vested right of nomination for councillors not belonging to recognised parties - Bombay Provincial Municipal Corporations Act, Section 31A(2) - Question referred to Full Bench. (Para 3)
F) Municipal Corporation - Standing Committee - Scope of Appointment - Whether nomination must be only from councillors representing recognised parties, registered parties, groups or fronts - Bombay Provincial Municipal Corporations Act, Section 31A(2) - Question referred to Full Bench. (Para 3)
Issue of Consideration
The core issue is the proper interpretation of Section 31A(2) of the Bombay Provincial Municipal Corporations Act regarding the method of determining party-wise representation on the Standing Committee and whether a recognised party can nominate a councillor who does not belong to that party.
Law Points
- Proportional representation in municipal committees
- interpretation of 'as nearly as may be'
- party-wise quota for standing committee
- nomination of non-member councillors
- scope of enabling provision in first proviso to Section 31A(2)
Case Details
2010 LawText (BOM) (04) 101
Writ Petition No. 5287 of 2008 along with Writ Petition Nos. 5857 of 2008, 7935 of 2008, 8094 of 2008, 2675 of 2009 and 4964 of 2009
F.I. Rebello, D.G. Karnik, J.H. Bhatia
Mr. N.R. Bubna, Ms. Manisha Salekar, Mr. M.M. Vashi, Mr. Rahul Kate, Mr. R.P. Behere, Mr. P.K. Dhakephalkar, Mr. M.S. Kunthekar, Mr. A.S. Rao, Mr. A.V. Anturkar, Mr. S.S. Deshmukh, Mr. M.L. Patil, Mr. T.S. Ingale, Smt. Deepa S. Matwankar, Mr. J.N. Pawar, Mr. R.M. Pethe, Mr. R.S. Khadapkar, Mr. V.A. Gangal, Mr. Ashok Gade, Mr. Vindu Pandey, Mr. M.P. Vashi
Shri. Jayram Tolaji Shinde & Sau. Kavita B. Kardak (Petitioners in W.P. No. 5287/2008) along with Petitioners in connected matters: Ateeq Ahmed Kamal Ahmed, Abdul Malik Mohammed Yunus, Nandkumar Digambar Dhule and Ors., Sayyad Mushir Muniroddin
The Secretary, Urban Development Department, Maharashtra State; The Commissioner, Nashik Municipal Corporation; The State of Maharashtra; Sanjay Uttamrao Chavan (Respondents in W.P. No. 5287/2008) and similarly designated authorities in connected matters
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Nature of Litigation
Interpretation of statutory provisions for constitution of Standing Committee of Municipal Corporation.
Remedy Sought
Petitioners sought declaration of correct method of calculating proportional representation and scope of nomination under Section 31A.
Filing Reason
Previous Division Bench in Vasant Gite had laid down a method; another Division Bench doubted its correctness regarding nomination of non-member councillors, leading to reference to Full Bench.
Previous Decisions
The Division Bench in Vasant Gite v. Municipal Corporation of City of Nashik (30.04.2007) held that a party entitled to a quota can nominate a person not belonging to it and laid down a method for calculating quotient. This was doubted in later petitions, resulting in reference to Full Bench.
Issues
Whether, in the light of Section 31A(2) of the Bombay Provincial Municipal Corporations Act, a party which is entitled to a quota can nominate to the committee member who does not belong to it?
Whether the procedure laid down in para 6 of the judgment in Vasant Nivrutti Gite v. Municipal Corporation of City of Nashik (WP 2564/2007) for determining the party-wise representation on the Standing Committee is in keeping with the scheme of sub section (2) of section 31A of the Act?
Whether the words “in proportion to the strength of such parties or groups in the Corporation” contemplate inclusion of the number of the independent Councilors or Councilors/members not belonging to any recognized party or registered party or group or front/Aghadi?
Whether the first proviso below sub section (2) of section 31A of the Act is only an enabling/discretionary provision and it does not create any vested right of appointment by nomination in favour of any Councilor/member not belonging to any recognized parties or registered parties or groups or fronts/aghadis?
Whether the appointment by nomination on the Standing Committee is required to be made only from amongst the Councilors/members from/representing the recognized parties or registered parties or groups or fronts/aghadis?
Submissions/Arguments
Mr. Vashi contended that the view taken in Vasant Gite regarding fraction below 0.5 being ignored was contrary to the express language of section 31A(2). He argued that the expression 'as nearly as may be' permits latitude and all fractions should be considered with seats allotted in descending order of fractions. He submitted that appointment to the Standing Committee has to be made only from councillors representing recognised parties or registered parties/groups, and the proviso is merely enabling, not conferring a vested right.
Mr. Anturkar submitted that no universal formula could be judicially devised and that the legislature intended flexibility. The proviso empowers the General Body to nominate any member, ensuring true representation. He argued that the interpretation in Vasant Gite was correct and that adopting a highest-fraction method would substitute the statutory remedy.
Mr. Dhake's submissions began but were not fully recorded in the excerpt.
Judgment Excerpts
The question which will have to be considered by the Full Bench is : (1) Whether, in the light of Section 31A(2) of the Bombay Provincial Municipal Corporations Act, a party which is entitled to a quota can nominate to the committee member who does not belong to it?
(2) Whether the procedure laid down in para 6 of the judgment in the case of Vasant Nivrutti Gite and anr. Vs. The Municipal Corporation of City of Nashik and Ors. (Writ Petition No. 2564 of 2007 decided on 30.4.2007) for determining the party-wise representation on the Standing Committee is in keeping with the scheme of sub section (2) of section 31A of the Act?
(3) Whether the words “in proportion to the strength of such parties or groups in the Corporation” contemplate inclusion of the number of the independent Councilors or Councilors/members not belonging to any recognized party or registered party or group or front/Aghadi?
(4) Whether the first proviso below sub section (2) of section 31A of the Act is only an enabling/discretionary provision and it does not create any vested right of appointment by nomination in favour of any Councilor/member not belonging to any recognized parties or registered parties or groups or fronts/aghadis?
(5) Whether the appointment by nomination on the Standing Committee is required to be made only from amongst the Councilors/members from/representing the recognized parties or registered parties or groups or fronts/aghadis?
Procedural History
A Division Bench of the High Court in Vasant Gite v. Municipal Corporation of City of Nashik (WP 2564/2007, decided 30.04.2007) interpreted Section 31A(2) and laid down a method for calculating proportional representation on the Standing Committee, including the treatment of fractions and nomination of non-member councillors. SLPs against this judgment were dismissed as withdrawn on 10.07.2009. Subsequently, another Division Bench in WP 5857/2008 doubted the correctness of Vasant Gite on the issue of nominating a non-member and referred the question to a Full Bench. Yet another Division Bench in WP 7938/2008 framed additional questions on various aspects of Section 31A and also referred them to the Full Bench. All these petitions were clubbed and placed before the present Full Bench for hearing, which heard arguments on 01.04.2010 but the final order is not included in the instant excerpt.
Acts & Sections
- Bombay Provincial Municipal Corporations Act: Section 31A, Section 31A(2)
- Maharashtra Municipal Corporation (Amendment) Act, 2007:
- Maharashtra Local Authorities Members Disqualification Act, 1976:
- Maharashtra Local Authority Members’ Disqualification Rules, 1987:
