SHAILESH BANDU SWAMI AND ANOTHER versus DIPAK AND OTHERS on 25 September 2018

118

SUPREME COURT REPORTS

[2018] 12 S.C.R.

A SHAILESH BANDU SWAMI AND ANOTHER

v.

DIPAK AND OTHERS

(Civil Appeal No. 9970 of 2018)

BSEPTEMBER 25, 2018

[UDAY UMESH LALIT AND ASHOK BHUSHAN, JJ.]

Maharashtra Municipal Corporation Act, 1949:

ss. 20, 21, 31A and 35A – Constitution of Standing CommitteeCand election of Chairman thereof – Propriety of – As per theprocedure contemplated u/s.20(3), the names of eight retiringmembers including the Chairman were selected by draw of lots –Thereafter, due to imposition of ‘code of conduct’ , next stagecontemplated by the Act i.e. appointment of eight new members wasnot undertaken – After the ‘code of conduct’ ceased to be inDoperation, by notice dated 6.6.2018 meeting was scheduled for14.6.2018 for appointment of eight new members – Another noticewas issued on 12.6.2018 whereby meeting was called on 15.6.2018for election of Chairman in terms of s.21(5) – Writ Petition wasfiled challenging the notice dated 12.6.2018 and meetings datedE14.6.2018 and 15.6.2018 – High Court held that there was violation of mandatory requirement of s. 20 and attempt was made to appointthe Chairman by notice dated 12.6.2018, when the StandingCommittee was not yet constituted – On appeal, held: Mandates asprescribed by various provisions of the Act were not adhered toand were violated – Due to coming into operation of ‘code ofFconduct’, steps could not be taken in strict compliance of prescribedtimeline – This irregularity led to a situation where urgent actionswere taken – Such irregular actions, in substance, followed themandate of the Act – Such actions have not resulted in deprivationof any right under the statute – There was no reason for the High GCourt to interfere in its writ jurisdiction.

Allowing the appeals, the Court

HELD: 1. The High Court has ruled that the StandingCommittee as was in existence before 02.05.2018 shall be theone which must take all the steps and decisions. The decision ofH

the High Court is premised on non-compliance of the mandatoryprovisions of the Maharashtra Municipal Corporations Act, 1949and non-adherence to the timelines as prescribed under the Act.It is clear from the record that the mandates as prescribed byvarious provisions of the Act were not adhered to and wereviolated. But the reasons that are forthcoming in the affidavits inreply filed by the respondents are to the effect that there was“code of conduct” issued by the Election Commission of India asa result of which no appropriate steps could be taken.Theoretically it was possible to initiate the steps in the first halfof April, 2018 itself but failure on that count, by itself does notmake the actions suspect. The “code of conduct” having beenbrought in force from 20.04.2018, no steps were taken either toidentify 8 outgoing members or to have election in terms of or tohave the meeting of the Corporation in terms of Sub-Section (5)of Section 20 before 30.04.2018. What happened thereafter wascertainly not in strict compliance of the timelines prescribed.[Para 12, 15 and 16] [130-E; 131-F; 132-D-F]

2. The circumstances show that the irregularity that hadcrept in as a result of non adherence to the various steps whichwere required to be taken in the month of April, 2018 led to asituation where certain urgent actions were required to be taken.Though said actions were in a way irregular, but in substance andin real sense they followed the mandate and appropriate stepswere taken by the bodies in question and not by any entity oragency which, in law, was not authorised. In this scenario, noemergent directions were required or called for. The appointmentof new members of the Standing Committee went on proportionalrepresentation theory and was purely by nomination coming fromthe group leaders. Even if very same exercise is to be undertakennow in terms of the orders passed by the High Court, it wouldnot be qualitatively different. It is not as if any person or a grouplost out or was deprived of any right under the statute. Thus,there was no reason for the High Court to interfere in its writjurisdiction and issue directions. [Paras 19 and 20] [134-A-D]

Prithipal Singh and Ors. v. State of Punjab and Anr.(2012) 1 SCC 10 : [2012] 14 SCR 862 – referred to.

AB

C

D

E

F

G

ACase Law Reference

[2012] 14 SCR 862 referred toPara 11

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9970of 2018.

BFrom the Judgment and Order dated 05.09.2018 of the HighCourt of Judicature of Bombay, Bench at Aurangabad in Writ PetitionNo. 6897 of 2018

WITH

Civil Appeal Nos. 9971-9972 of 2018.

C

B. H. Marlapalle, Sr. Adv., Shirish K. Deshpande, Mohit Gautam,Ajit Waggh, Ms. Apoorva Shukla, Sudhanshu S. Choudhari, Ms. SurabhiGuleria, Shakul R.Ghatole, Nishant R.Katneshwarkar, ChinmoyKhaladkar, Dilip Annasaheb Taur, Amol V. Deshmukh, Ms. HeenaKhan, Shashibhushan P. Adgaonkar, Advs. for the appearing parties.

D

The Judgment of the Court was delivered by UDAY UMESH LALIT, J. 1. Leave granted.

2. These appeals question the correctness of the Judgment andOrder dated 05.09.2018 passed by the High Court of Judicature atEBombay, Bench at Aurangabad in Writ Petition No.6897 of 2018.

3. Matters pertaining to elections to Municipal Corporations inMaharashtra including those relating to constitution of StandingCommittees of such Municipal Corporations are dealt with by MaharashtraMunicipal Corporations Act, 1949 (hereinafter referred to as the Act).FProvisions of Sections 20, 21, 31A and 35A which are relevant for thepresent purposes are quoted for ready reference:- “20. Constitution of Standing Committee.- (1) The StandingCommittee shall consist of sixteen councillors.

(2) The Corporation shall at its first meeting after generalGelections appointsixteen persons out of its own body to bemembers of the Standing Committee.

(3) One-half of the members of the Standing Committee shallretire every succeeding year at noon on the first day of themonth in which the first meeting of the Corporation mentionedHin sub-section (2) was held:

Provided that all the members of the Standing Committee inoffice when general elections are held shall retire from office onthe election of a new Committee under sub-section (2).

(4) The members who shall retire under sub-section (3) one yearafter their election under sub-section (2) shall be selected by lot atsuch time previous to the date for retirement specified insub-section (3) and in such manner as the Chairman of the StandingCommittee may determine, and in succeeding years the memberswho shall retire under this section shall be those who have beenlongest in office :

Provided that, in the case of a member who has beenreappointed, the term of his office for the purposes of thissub-section shall be computed from the date of his reappointment.

(5) The Corporation shall at its meeting held in the monthpreceding the date of retirement specified in sub-section (3)appoint fresh members of the Standing Committee to fill theoffices of those who are due to retire on the said date.

(6) Any Councillor who ceases to be a member of the StandingCommittee shall be eligible for reappointment.

21. Appointment of Chairman of Standing Committee.-(1) The Standing Committee shall at its first meeting after itsappointment under sub-section (2) of section 20 and at its firstmeeting in the same month in each succeeding year appoint one ofits own member to be the Chairman.

(2) The Chairman shall hold office until his successor has beenappointed under sub-section (1) but shall be eligible forreappointment.

(3) Notwithstanding the provisions of sub-sections (1) and (2) theChairman shall vacate office as soon as he ceases to be amember of the Committee.

(4) If any casual vacancy occurs in the office of the Chairman,the Standing Committee shall, as soon as conveniently may beafter the occurrence of the vacancy, appoint one of its member tofill such vacancy and every Chairman so appointed shall continuein office so long only as the person in whose place he is appointedwould have held it if such vacancy had not occurred.

AB

C

D

E

F

G

H

A

B

C

D

E

F

G

H

(5) If for any reason the Standing Committee does not appointthe Chairman under sub-section (1) or (4), within a period ofthirty days from the date of its appointment under sub-section (2)of section 20, or from the date following the date of retirement ofone-half of the members specified in sub-section (3) of thatsection, or from the date on which a casual vacancy occurs in theoffice of Chairman, as the case may be, the appointment of theChairman, after the expiry of the said period, shall be made by theCorporation, from amongst the members of the StandingCommittee, at a special meeting called and held for the purposewithin fifteen days from the expiry of the said period of thirtydays. At such meeting, the question shall be decided by a majorityof votes of the Councillors present and voting and if there be anequality of votes, the presiding authority shall have and exercise asecond or casting vote. Every Chairman so appointed, shall con-tinue in office so long only as the Chairman appointed by theStanding Committee would have continued in office.

… … …

31A. Appointment by nomination on Committees to be byproportional representation.- (1) Notwithstanding anythingcontained in this Act or the rules or bye-laws made thereunder, inthe case of the following Committees, except where it is providedby this Act, that the appointment of a Councillor to anyCommittee shall be by virtue of his holding any office,appointment of Councillors to these Committees, whether in regularor casual vacancies, shall be made by the Corporation bynominating Councillors in accordance with the provisions ofsub-section(2):- (a) Standing Committee; (b) Transport Committee;

(c) Any special Committee appointed under Section 30; (d) Any ad hoc Committee appointed under Section 31.

(2) In nominating the Councillors on the Committee, theCorporation shall take into account the relative strength of therecognized parties or registered parties or groups and nominatemembers, as nearly as may be, in proportion to the strength of such parties or groups in the Corporation, after consulting theLeader of the House, the Leader of Opposition and the leader ofeach such party or group:

Provided that, the relative strength of the recognized partiesor registered parties or groups or aghadi or front shall becalculated by first dividing the total number of Councillors by thetotal strength of members of the Committee. The number ofCouncillors of the recognized parties or registered parties or groupsor aghadi or front shall be further divided by the quotient of thisdivision. The figures so arrived at shall be the relative strength ofthe respective recognized parties or registered parties or groupsor aghadi or front. The seats shall be allotted to the recognizedparties or registered parties or groups or aghadi or front by firstconsidering the whole number of their respective relative strengthso ascertained. After allotting the seats in this manner, if one ormore seats remain to be allotted, the same shall be allotted oneeach to the recognized parties or registered parties or groups oraghadi or front in the descending order of the fraction number inthe respective relative strength, starting from the highest fractionnumber in the relative strength, till all the seats are allotted:

Provided further that, for the purpose of deciding therelative strength of the recognized parties or registered parties orgroups under this Act, the recognized parties or registered partiesor groups, or elected Councillors not belonging to any such partyor group may, notwithstanding anything contained in theMaharashtra Local Authority Members’ Disqualification Act, 1986,within a period of one month from the date of notification ofelection results, form the aghadi or front and, on its registration,the provisions of the said Act shall apply to the members of suchaghadi or front, as if it is a registered pre-poll aghadi or front.

(3) If any question arises as regards the number of Councillors tobe nominated on behalf of such party or group, the decision of theCorporation shall be final.

…

…

…

35A. Exercise of powers and discharge of duties of anyCommittee by Corporation.- If, any committee or special A

B

C

D

EF

G

Acommittee under this Act is not constituted at any point of time, orfor any reason not in a position to exercise its powers ordischarge its duties under this Act, its powers shall be exercisedand its duties shall be discharged by the Corporation until suchcommittee is constituted or in a position to exercise its powers ordischarge its duties.”

B

4. The aforesaid provisions thus contemplate:-

In terms of Sub-Section (2) of Section 20, the Corporation in itsfirst meeting after general elections is obliged to appoint 16 persons outof its own body to be members of the Standing Committee. As per Sub-CSection (1) of Section 21 soon after its constitution, the StandingCommittee is to appoint one of its own members as its Chairman. Interms of Sub-Section (3) of Section 20, one-half of the members namely8 out of 16 would retire every succeeding year on the first day of themonth in which the first meeting of the Corporation was held. Sub-Section (4) then contemplates a process under which the names of thoseDeight persons who would so retire in the succeeding year are to beidentified. Their names are to be selected by lot in such manner as theChairman of the Standing Committee may determine. Such selectionhas to be undertaken previous to the date of retirement as specified inSub-Section (3). Naturally the action to be contemplated in terms ofESub-Section (4) of Section 20 must be by the Chairman who was holdingoffice in terms of appointment under Section 21. In terms of sub-section(5) of Section 20, it is the Corporation which must appoint fresh membersof the Standing Committee in the month preceding the date of retirementas specified in sub-section (3).

FAccording to Section 21, the appointment of a Chairman could bein three contingencies. The first part of Sub-Section (1) of Section 21deals with the first meeting of the Standing Committee wherein theappointment of a Chairman has to be undertaken from amongst themembers of the Standing Committee. The second part of Sub-Section21(1) contemplates similar such exercise to be undertaken in theGsuccessive years as and when the constitution of the Standing Committeewould undergo change as a result of one-half of the body getting retiredand fresh elections to fill those vacancies taking place. The thirdcontingency is one which is spoken of in Sub-Section (4) of Section 21

when any casual vacancies were to arise in the office of the Chairman.Sub-Section (5) of Section 21 then contemplates a situation where noappointment of the Chairman is undertaken in terms of both limbs ofSub-Section (1) or under Sub-Section (4) of Section 21 and empowersthe Corporation to take appropriate steps in such cases.

Section 31A stipulates a salutary principle that appointments bynomination on Committees of the Corporation must be undertaken inaccordance with proportional representation and not by pure majority inthe house.

Section 35A gives general power to the Corporation to dischargethe duties as exercisable by any Committee in case such Committee orSub-Committee is not constituted at any point of time or is not in a positionto exercise its powers or discharge its duties under the Act.

5. In the present case we are concerned with the constitution ofStanding Committee in respect of Latur City Municipal Corporation, Latur.As per record[1], Latur City Municipal Corporation has 18 Wards and 70councillors are elected. In the general election held in the year 2017, 36elected members were from Bharatiya Janta Party, 33 members werefrom Indian National Congress Party and one member was fromNationalist Congress Party. In terms of Section 31-A of the Act, 8members from Bharatiya Janta party and 8 members from NationalistCongress Party were nominated to be the members of the StandingCommittee. The first meeting of the Standing Committee was held on22.05.2017 in which by draw of lots, a member from Indian NationalCongress Party was elected as Chairman of the Standing Committee.The first meeting having been held in the month of May 2017, in termsof Section 20(1) of the Act as stated hereinabove, the Chairman of theStanding Committee was obliged to select by lot before the expiry of theterm namely first day of the month of the succeeding year that is to saybefore 01.05.2018, names of 8 persons who would retire by rotation asmembers of the Standing Committee.

6. It however appears that because of biennial elections of LocalAuthorities constituency namely Latur-Osmanabad-Beed to electmembers of Maharashtra Legislative Council which were scheduled tobe held on 21.04.2018, the Election Commission of India had imposed 1Para 5 of Writ Petition No. 6897 of 2018

A

B

C

D

EF

G

A“code of conduct” with effect from 20.04.2018 which as a matter offact continued to be in operation till 31.05.2018[2]. It is thus a matter ofrecord that no steps were taken by the Chairman of the StandingCommittee to identify those who would retire in terms of Section 20(3).01.05.2018 being a holiday namely Maharashtra Day, a meeting of LaturCity Municipal Corporation was held on 02.05. 2018 pursuant to theBintimation dated 26.04.2018 issued by the District Collector instructingthe Commissioner of the Corporation to call such meeting. All themembers of the Standing Committee including the Chairman werepresent. The minutes of the meeting indicate that in the presence of allthe members it was decided to identify names of the retiring membersCby lots. Consequently 16 chits were kept in a pot and 8 chits were drawnrepresenting names of those 8 members who would retire in terms ofSection 20(3) of the Act. Those 8 members included the name of theChairman of the Standing Committee himself. However since the “codeof conduct” was still in operation the next stage contemplated by theAct namely to have fresh appointment of 8 new incoming members wasDnot undertaken. The “code of conduct” was in operation till 31.05.2018and the Municipal Corporation received an intimation after it ceased tobe in operation. Soon thereafter, on 06.06.2018 the Municipal Secretaryof the Corporation prepared Agenda and issued notices regarding meetingscheduled to be held on 14.06.2018[3].

E

7. A notice was also issued on 12.06.2018 to all elected Councillorsthat a meeting would be held on 15.06.2018 for election of the Chairmanof the Standing Committee in terms of Section 21(5) of the Act. Sinceby 12.06.2018, names of incoming 8 members of the Standing Committeewere still not known, notices were sent to all the members of theFCorporation. In its meeting dated 14.06.2018, the respective politicalparties through their block leaders submitted names of the Councillorswho would now be incoming or new members. True translation of theproceedings of said meeting dated 14.06.2018 is as under:-

“The block leaders from the respective parties have submittedGthe names of the corporation members, by nominations bycomparing as per their seats, for Standing Committee by certifyingrepresentative as per the Section 31 A for 8 posts of Standing 2Para 20 of the counter affidavit in aforesaid writ petition by the Mayor, Latur CityMunicipal Corporation3 Para 22 of the counter affidavit in the aforesaid writ petition filed by Mayor, LaturHMunicipal Corporation Sr.No

1. 2.

3.

4.

5.

6.

7.

8. Committee vacated as per the Section 20(3) of the MaharashtraMunicipal Corporations Act 1949 therefore, the Mayor hasdeclared the names of following 8 members appointed as thestanding committee members.

A

E

Sd/-

(Pawar Suresh Nivrutti)

Latur City Municipal Corporation, Latur.”

8. The names of incoming members show that since 6 outgoingmembers were from one political party, it had nominated 6 persons to bepart of the incoming group of 8 new members of Standing Committee.Thus by virtue of such nomination, the balance as it existed earlier wasagain maintained. Since the Standing Committee was now re-constituted,in the subsequent meeting held on the next day i.e. 15.06.2018 the entirebody of 16 members of the Standing Committee then elected one of itsown members namely Shailesh Prakash Gojamgunde to be the Chairmanof the Standing Committee.

F

G

9. Soon thereafter, Writ Petition No.6897 of 2018 was filed bytwo Councillors (one of them being Block Leader who had submittednames of his party members to be part of the Standing Committee in the H

Ameeting dated 14.06.2018) of Latur City Municipal Corporation submittinginter alia that the notice issued on 12.06.2018 for holding the meeting toelect the Chairman of the Standing Committee on 15.06.2018 wasinadequate and that before issuance of such notice there had to be aStanding Committee in existence which, as a matter of fact, was not so.The petition prayed inter alia for following reliefs:-B

“ A) Call for record and proceedings of the case.

B) Issue a writ of certiorari or any other appropriate in the natureof order and direction to quash and set aside the election ofChairman of Standing Committee dated 15.06.2018 beingCcontrary to the provisions of law.

C) Issue a writ of certiorari of any other appropriate in the natureof order and direction to quash and set aside the appointmentof fresh members in meeting dated 14.06.2018 being contraryto the provisions of law.

DD) Pending hearing and final disposal of this writ petition, kindlygrant stay to the election of Chairman of Standing Committeedated 15.06.2018 being contrary to the provisions of law.

E) Pending hearing and final disposal of this writ petition, kindlybe restrained the Chairman of Standing Committee from takingEany policy decision.

F) By allowing this Writ Petition, may kindly be disqualified therespondent No.6 from the post of mayor as he has misused hispost and power.

G) Ad-interim relief be granted in terms of prayer clause “D”Fand “E”.

Thus, the challenge was to the meetings held on 14.06.2018 and15.06.2018. However, no challenge was raised in respect of meetingheld on 02.05.2018 wherein names of 8 outgoing members wereidentified. Though the election held on 14.06.2018 to the StandingGCommittee was put in challenge, none of the Councillors appointed asnew members of the Standing Committee in its meeting dated 14.06.2018was made party to the petition.

10. Affidavits in reply opposing the petition were filed by respondentNo.6, namely, the Mayor of the Latur City Municipal Corporation and H

by respondent No.7 Shailesh Prakash Gojamgunde, Chairman of theStanding Committee elected on 15.06.2018.

A

11. After hearing learned counsel, the High Court by its judgmentand order dated 05.09.2018 allowed said Writ Petition. It was observedby the High Court that as on 12.06.2018 when notice was issued to holda meeting on 15.06.2018 the Standing Committee consisting of 16members had not come into existence; that mandatory requirements ofSection 20 of the Act were violated and an attempt was made to appointChairman of the Standing Committee by the Corporation under Section21(5) of the Act when the Standing Committee consisting of 16 memberswas not yet constituted. Relying on the judgment of this Court in PrithipalSingh and Ors. vs. State of Punjab and anr.[4] to the effect that whiledealing with unprecedented cases the court has to innovate and at timespass unconventional orders, the High Court passed certain directions inparagraph 43 of its judgment. Out of 11 directions so passed, we areconcerned with first 7 directions which pertain to the present matters.Rest of the directions are in the nature of guidelines with a view toensure compliance of various provisions of the Act. Said first 7 directionsas spelt out in paragraph no.43 are extracted hereunder:

B

C

D

“43. In the light of the above, the present Writ Petition is allowedand disposed of as follows:

E

(i) The election of respondent No.7 as Chairman of the StandingCommittee of the respondent Municipal Corporation in thespecial meeting held on 15.6.2018, is quashed and set aside asbeing contrary to the provisions of the Maharashtra MunicipalCorporations Act, 1949.

F

(ii) It is held that, the appointment of fresh 8 members on theStanding Committee in the meeting dated 14.6.2018 is illegaland hence, the same is also quashed and set aside.

(iii) The Standing Committee consisting of 16 members constitutedin the meeting dated 22.05.2017 immediately after generalelections of the Corporation held on 19.04.2017 and itsGChairman elected on 19.06.2017 shall take steps for selecting8 of its members for retirement from the Standing Committee.This step shall be taken by the said Standing Committee andits Chairman on 14[th] September, 2018.

4 (2012) 1 SCC 10

A(iv) The said Standing Committee shall then hold a meeting on18.09.2018 for appointing fresh 8 members on the StandingCommittee. This would enable any member who has beenselected for being retired from the Standing Committee to beeligible for reappointment.

B(v) The 8 members selected for retirement shall stand retired on19.09.2018 and the fresh 8 members shall become membersof the newly constituted Standing Committee on the same day.

(vi) Thereafter, such reconstituted Standing Committee shall in itsfirst meeting to be held in the month of September 2018, electCits Chairman. Accordingly, there would be a smooth transitionfrom the erstwhile Standing Committee to such newlyconstituted Standing Committee. If for some reason theStanding Committee is unable to appoint its Chairman within30 days of 19.09.2018, the Corporation shall appoint theChairman in a special meeting under Section 21(5) of the saidDAct, to be held within 15 days from expiry of the said period of30 days.

(vii) The reconstituted Standing Committee and its Chairmanappointed in terms of directions given hereinabove shall remainin existence for the remaining part of the one year tenure ofEthe Standing Committee.

…

…

…”

12. Thus, the High Court has ruled that the Standing Committeeas was in existence before 02.05.2018 shall be the one which must takeFall the steps and decisions. It must first, through its Chairman takeappropriate steps for selecting names of 8 members for retirement.Thereafter, the Standing Committee would hold a meeting for appointing8 new members on the Standing Committee. Such reconstituted StandingCommittee shall, thereafter, in a meeting elect its Chairman. The StandingCommittee so reconstituted with its Chairman shall then continue to beGin existence for the remaining part of the tenure of one year.

13. The decision of the High Court is under challenge in presentmatters. The first matter was filed by two councillors who are alsomembers of the Standing Committee, the first petitioner being a councillorwho was appointed as a member of the Standing Committee for the first H

time in the meeting dated 14.06.2018. Since both these petitioners werenot parties in the Writ Petition, they approached this Court with anapplication seeking permission to challenge the judgment under appeal.The second petition was filed by original respondent No.7. Both thesepetitions came up before this Court on 17.09.2018, on which date thelearned counsel for the writ petitioners also appeared on caveat.Considering the nature of urgency, where certain directions passed bythe High Court were to come into effect on 18[th] and 19[th] September,2018, the matter was immediately taken up for hearing. After conclusionof hearing, the following order was passed by this Court:

“Permission to file SLP is granted.

Heard learned counsel for the parties.

Issue notice. As Mr. Chinmoy Khaladkar, Adv. on the instructionsof Mr. Dilip Annasaheb Taur, Adv. appearing on caveat has shownhis readiness to go ahead with the final submissions at this stageitself, notice made returnable forthwith. We issued notice to Mr.Nishant R. Katneshwarkar, Adv. appearing for the State ofMaharashtra as well, who has appeared for the State.

Having heard learned counsel for the parties finally andconsidered their submissions, we direct (a) pending consideration,the judgment and order passed by the High Court shall remainstayed (b) the parties shall file their written submissions withinthree days from today (c) the matter will be posted forpronouncement of order next week.”

14. We have heard learned counsel for the parties and gone throughthe entire matter and the submissions on record.

15. The decision of the High Court is premised on non-complianceof the mandatory provisions of the Act and non-adherence to the timelinesas prescribed under the Act. According to the provisions of Sections 20and 21 of the Act following stages should have been undertaken in thepresent case:

a) Names of one-half of the members of the Standing Committeewho would be retiring on the first day of May of 2018 ought tohave been identified. Exercise to identify such persons oughtto have been undertaken well in advance.

AB

C

D

E

F

G

H

Ab) Any councillor who as a result of such exercise ceased to bea member of the Standing Committee would be eligible forreappointment in terms of Sub-Section (6) of Section 20 andas such adequate chance or opportunity seeking an‘appointment’ should have been afforded.

Bc) The Corporation would then appoint fresh members of theStanding Committee to fill the offices of those who “are due toretire” in terms Sub-Section (5) of Section 20 of the Act. Suchmeeting of the Corporation should have been held in the month“preceding the date of retirement” as specified in Sub-Section(3) of Section 20 of the Act, i.e. to say in April 2018.C

d) While making such appointments the Corporation would beguided by principles laid down in Section 31A of the Act namelythose relating to proportional representation.

16. It is clear from the record that the mandates as prescribed byDvarious provisions of the Act were not adhered to and were violated.But the reasons that are forthcoming in the affidavits in reply filed by therespondents are to the effect that there was “code of conduct” issuedby the Election Commission of India as a result of which no appropriatesteps could be taken. Theoretically it was possible to initiate the steps inthe first half of April, 2018 itself but failure on that count, by itself doesEnot make the actions suspect. The “code of conduct” having been broughtin force from 20.04.2018, no steps were taken either to identify 8 outgoingmembers or to have election in terms of or to have the meeting of theCorporation in terms of Sub-Section (5) of Section 20 before 30.04.2018.What happened thereafter was certainly not in strict compliance of theFtimelines prescribed. In the circumstances, there would be two coursesthat are open to be considered. (A) Upset all actions and relegate theissues to be dealt with afresh at the appropriate levels in accordancewith law. (B) Consider whether the actions taken by the concernedauthorities are only irregular or blatantly illegal. If there is a mereirregularity which has not caused prejudice to anyone, a call can certainlyGbe taken to condone such irregularity rather than nullifying all actions.

17. The High Court has adopted the first course and issued theaforementioned directions. Its direction No.(iv) is not quite correct. Itis the Corporation and not the Standing Committee which is to holdmeeting as per Section 20(5) of the Act for appointing fresh eightH

members. Be that as it may, the question is whether the first course orthe second course is the most appropriate one in the present matter.

18. In the present case there was no challenge to the meetingdated 02.05.2018 which identified names of eight members who wouldretire, which included the Chairman of the Standing Committee himself.Under the orders of the High Court, despite these developments, thesame Standing Committee is to be deemed to be in existence whichmust initiate all the actions de novo. In a given situation such extraordinarydirections may be justified. The question, however, is whether suchdirections were justified in the present case. On 02.05.2018, names ofeight outgoing persons were identified but nothing further was done asat that time, the “code of conduct” was still in operation. Appropriatesteps were taken only after the “code of conduct” ceased to be inoperation and a meeting was called on 14.06.2018 to appoint new set ofeight members to be part of the Standing Committee. Going by Sub-Section (5) of Section 20 such a meeting had to be held by the Corporationand was rightly undertaken. In this meeting the proportional representationwas maintained and those persons whose names were suggested by thegroup leaders of the respective political parties, were appointed as newmembers of the Standing Committee.

It is true that the Chairman had to be selected by the newlyconstituted Standing Committee. It appears that in order to expedite thematters, the meeting was scheduled to be held on the next date that is on15.06.2018. This meeting was called pursuant to agenda circulated on12.06.2018. It is again true that as on that date the reconstituted StandingCommittee was not in existence. However, since the Standing Committeewould be of the Councillors of the Corporation itself, and since the identityof eight new members who would now become part of the StandingCommittee was not yet known on 12.06.2018, notices were issued to allthe Councillors of the Corporation. The record then shows that item 10on the agenda for the special meeting dated 15.06.2018 was for electionof the Chairman. It is further clear that the meeting started at 11.00a.m. whereafter nominations for the post of Chairman were acceptedand various stages were thereafter conducted and the election of theChairman was done by 16 members of the Standing Committee. It isnot as if that the election was undertaken by an entity other than membersof the Standing Committee. The observations of the High Court in thatbehalf are not correct.

A

B

C

D

EF

G

H

A19. The circumstances thus show that the irregularity that hadcrept in as a result of non adherence to the various steps which wererequired to be taken in the month of April, 2018 led to a situation wherecertain urgent actions were required to be taken. Though said actionswere in a way irregular but in substance and in real sense they followedthe mandate and the appropriate steps were taken by the bodies inBquestion and not by any entity or agency which, in law, was not authorised.In this scenario, in our considered view, no emergent directions wererequired or called for. The appointment of new members of the StandingCommittee went on proportional representation theory and was purelyby nomination coming from the group leaders. Even if very same exerciseCis to be undertaken now in terms of the orders passed by the High Courtit would not be qualitatively different. It is not as if any person or a grouplost out or was deprived of any right under the statute.

20. We thus find that there was no reason for the High Court tointerfere in its writ jurisdiction and issue directions as referred to above.

DWe, therefore, allow these appeals, set aside the judgment and orderunder appeal and dismiss Writ Petition No.6897 of 2018. No costs.

Kalpana K. Tripathy

Appeals allowed.

E

F

G

H