Umesh @ Ganesh v. The State of Maharashtra

Smt. Anita Rajendra Rathod, R/o-648, Tophkhana, Thakur Galli, Ahmednagar, District-Ahmednagar, 7) Sangram Arun Jagtap, R/o-Ahmednagar, 8) Ambadas Mahadeo Pandhade @ Aswar, R/o-Delhi Gate, Mohan Baug, Ahmednagar, Dist-Ahmednagar. ...RESPONDENTS. ... Shri. Sandeep S. Deshmukh Advocate for Petitioner. Shri.V.D. Godbharle, A.G.P. for Respondent Nos. 1 to 3. Shri.K.N. Lokhande Advocate for Respondent Nos. 4 and 5. Shri.R.R. Karpe Advocate for Respondent No.6. Shri.V.S. Bedre Advocate for Respondent No.7. Shri.R.N. Dhorde Advocate i/b. Shri. V.R. Dhorde Advocate for Respondent No.8. ... CORAM: NARESH H. PATIL AND S.V. GANGAPURWALA, JJ. DATE : 19TH JANUARY, 2011. PER COURT :

Heard learned counsel for the parties. 3 wp4676.10

The Petitioner claims to be a Councillor elected from Ward No.37 in the general elections held in November- December, 2008 of the Respondent No.5 - Municipal Corporation, Ahmednagar. It is contended that Respondent No.6 is elected Councillor and group leader of Shiv Sena Party. The Petitioner also claims to be belonging to Shiv Sena Party. The Respondent No.8 is elected Councillor belonging to Shiv Sena Party. The grievance of the Petitioner is that in exercise of powers under Section 19-1AA of the Bombay Provincial Municipal Corporations Act, 1949, Mayor of the Municipal Corporation, Ahmednagar appointed Respondent No.8 as a Leader of Opposition. The Petitioner's contention is that his name was recommended by Shiv Sena Party for the appointment Leader of Opposition, which recommendation is binding on the Mayor.

Affidavit in reply came to be filed on 4 wp4676.10 behalf of Respondent No.7 and Respondent No.8.

Shri. Deshmukh, learned counsel appearing for the Petitioner submitted that the practice has been that on recommendation by the party which is having greatest numerical strength as Opposition Party, Mayor shall appoint Leader of Opposition as per the recommendations. This practice has been given a go bye, by the Mayor. In support of his submissions, learned counsel Shri. Deshmukh placed reliance on the following Reported Judgments: 1) Ulhas Vasantrao Bagul @ Aba Bagul vs. Pune Muncipal Corporation and others, 2009 (2) Bom.C.R. 84, 2) Databhau Annasaheb Pathrikar vs. State of Maharashtra and others, 2007 (3) Bom. C.R. 667, 3) Narendra Gotu Paresi vs. Mayor, Dhule Municipal 5 wp4676.10 Corporation, 2007 (5) Bom. C.R.

Shri. Deshmukh, learned counsel for the Petitioner further referred to the proceedings of Writ Petition No.5104 of 2009, which was admitted by this Court (CORAM: NARESH H. PATIL & K. U. CHANDIWAL, JJ.) and by way of interim relief, Municipal Commissioner and the Mayor were directed to take further steps for appointment of Leader of the Opposition in accordance with law.

6. Shri. Dhorde, learned counsel appearing for Respondent No.8 submits that firstly, the Councillors belonging to Shiv Sena Party are not registered under the provisions of the Maharashtra Local Authority Members' Disqualification Act,

1986. The second submission is that recommendation made by the Party recommending name of a particular Councilor for appointment as a Leader of Opposition, is not binding on the Mayor. The 6 wp4676.10 Mayor exercises powers in accordance with the provisions of Section 19-IAA of the Bombay Provincial Municipal Corporations Act, 1949. In support of his submissions, Shri. Dhorde, learned counsel placed reliance on the Reported Judgment in the case of Dattatraya Maruti Bawalekar and others vs. Pandurang Dagadu Parte and others, A.I.R. 1998 Supreme Court, 1994.

Shri. Bedre, learned counsel appearing for Respondent No.7 - Mayor, submits that in accordance with the powers conferred under Section 19-IAA of the Bombay Provincial Municipal Corporations Act, 1949, the Mayor has exercised his discretion in accordance with law and appointed Respondent No.8 as a Leader of Opposition.

The provisions of Section 19-IAA of the Bombay Provincial Municipal Corporations Act, 1949 reads thus: 7 wp4676.10 "19-IAA. (1) An elected Councillor who is, for the time being, the Leader of the Party in opposition, having greatest numerical strength recognised as such by the Mayor, shall be the Leader of the Opposition. Explanation.- Where there are two or more parties in the opposition, having the same numerical strength, the Mayor shall, having regard to the status of the party, recognise the Leader of any one of such parties as a Leader of the Opposition for the purposes of this Act and such recognition shall be final and conclusive. (2) There shall be paid to the Leader of the Opposition such honor aria and allowances and other facilities as may be provided by regulations made in 8 wp4676.10 behalf Corporation. "

Prima facie, we find that the leader of the party in opposition having greatest numerical strength and recognized by such a Mayor, shall be Leader of Opposition. Admittedly the Petitioner is not the leader of the party in opposition, even according to the Petitioner. The Petitioner's contention is that, as his name was recommended by the Shiv Sena Party, he ought to have been appointed as a Leader of Opposition.

The Respondent No.6, who is admittedly a group leader of opposition party, has not challenged the decision of the Mayor.

We have perused the Judgments cited before us. We have perused the relevant provisions of the Bombay Provincial Municipal Corporations Act, 1949 and the Maharashtra Local Authority 9 wp4676.10 Members' Disqualification Act, 1986. We do not find any merit in the Petition. The Writ Petition is dismissed. [S.V. GANGAPURWALA, J.] [NARESH H. PATIL, J.] asb/JAN11/wp4676.10