09 Jun 2121

New Standing Committee has a right to choose its own Chairman - Bombay High Court

Case : Bhagwan Shankar Bhalerao v. State of Maharashtra and Ors. Writ Petition (St) No. 10801 of 2021 With Writ Petition (St) No. 10828 of 2021 and Writ Petition (St) No. 10544 of 2021

Court : Bombay High Court

Bench : Justice S. J. Kathawalla and Justice Surendra P. Tavade

Decided on : 09 Jun 2121

The Relevant Statutes

Section 20, 21, 21(5), 21(3), 20(3), 20(5), 451, 20(2), 20(4),6 of the Maharashtra Municipal Corporations Act, 1949

Brief Facts & Procedural History

1. In February 2017, the Corporation held general elections, electing 78 councillors, including Shri Bhalerao, Shri Sirvani, and Shri Patil.

2. The inaugural meeting of the Corporation was conducted after the general elections, and a sixteen-member Standing Committee of the Corporation was established.

3. Eight out of the 16 members of the Standing Committee retired, and eight new members were chosen to replace the retiring members.

4. Eight of the sixteen members of the Standing Committee, or half of the total, retired, and eight new members were appointed in their stead. One of the newly appointed members of the Standing Committee was Shri Patil.

5. A pandemic of Covid-19 broke out in March 2020, and the country was placed on lockdown. Because of the lockdown, the Corporation's general body meeting for the appointment of a new Standing Committee could not be placed in March 2020.

6. Following that, in October 2020, a new Standing Committee was established. Following the appointment of the new Standing Committee, the Municipal Secretary issued a Notice calling for a Special Meeting to elect the Chairman of the Standing Committee.

7. Shri Patil was named Chairman of the Standing Committee at a Special Meeting of the Standing Committee. Following that, the Corporation sent a Notice to all of its members, telling them that a general body meeting would be convened, among other things, to nominate 8 new members to the Standing Committee instead of the 8 members who were to retire.

8.. The Corporation conducted a general body meeting and passed a resolution approving the appointment of 8 new members to the Standing Committee in place of the 8 retiring members, including Shri Bhalerao and Shri Sirvani (including Shri Patil). The reconfigured Standing Committee will take effect on April 1, 2021, according to this Resolution.

9. Eight former members of the Standing Committee (including Shri Patil) stepped down, while eight new members (including Shri Bhagwan Bhalerao and Shri Dipak Sirvani) took their place.

10. Following the formation of the Standing Committee, the Municipal Secretary, with the consent of the Collector, issued a Notice calling for a Special Meeting of the Corporation to elect the Chairman of the Standing Committee.

11. The State Government issued a letter to all Municipal Commissioners, Divisional Commissioners, Collectors, and others, announcing that the State Government had enforced a severe lockdown owing to the massive increase in the number of patients due to the second wave of the Covid-19 pandemic. As a result, the State Government instructed that the election of the Chairman and members of the Municipal Corporation, Nagar Parishad, and Nagar Panchayat be postponed till further instructions were issued in the aforementioned letter.

12. Following receipt of the aforementioned instruction, the Collector wrote to the Corporation, telling them, among other things, that the election for Chairman of the Standing Committee scheduled had been postponed due to the aforementioned direction obtained from the State Government.

13. As a result, the Corporation informed all of its members by letter that the election for Chairman of the Standing Committee, which was scheduled, would be postponed due to the aforementioned letter received from the Collector.

14. After reconsidering the Covid-19 scenario, the State Government issued a letter/order informing all Municipal Corporations (including the Ulhasnagar Municipal Corporation) that the Chairman's and members of the Standing Committee's tenures will be prolonged till further orders. The Corporation was also given a copy of the abovementioned letter/order.

The Issue(s) of the Case

Whether Shri Patil's term as Chairman of the Standing Committee has come to an end as a result of his retirement as a member of the Standing Committee? If so, may his term as Chairman be extended just as long as he remains a member of the Standing Committee?

Whether the Standing Committee, which was reconstituted on April 1, 2021, is precluded from choosing a Chairman under Section 21(5) of the Maharashtra Municipal Corporation Act, 1949 for thirty days have passed since its reconstitution?

The Observations of the Court

1. Honourable High Court of Judicature at Bombay observes that Section 21(1), which requires the Standing Committee to choose a Chairman who is "one of its own." Shri Patil, who is not a member of the Standing Committee, cannot be the Chairman with effect from April 1, 2021. Section 21(3) of the Maharashtra Municipal Corporations Act, 1949 addresses this issue directly, stating that the Chairman must resign office as soon as he ceases to be a member of the Committee. This puts an end to the case against Shri Patil and eliminates any possibility of him continuing as Chairman if he is not a member of the Standing Committee.

2. Honourable High Court of Judicature at Bombay also observes in this case, there is no question that the Ulhasnagar Municipal Corporation held its inaugural meeting in April 2017 following the previous general elections in 2017. As a result, as per Section 20(3) read with Sections 20(4) and 20(5) of the Maharashtra Municipal Corporations Act, 1949, the 1st April of each year following that must be considered as the day on which 8 members of the Standing Committee retire and 8 new members are appointed.

3. If the reconstitution and appointment of new members to the Standing Committee are delayed in a given year, as it may be in 2020 due to the Covid 19 Pandemic, the tenure of the members of that Standing Committee cannot be extended beyond the 1st April of the following year. There is nothing in the Maharashtra Municipal Corporations Act, 1949 that states that the one year before the Standing Committee's reconstitution must be calculated from the date of the Standing Committee's last reconstitution. This may be why Shri Patil hasn't disputed the Resolution of March 22, 2021, which declares his retirement effective April 1, 2021. As a result, his Chairmanship cannot be extended beyond April 1, 2021.

4. Honourable High Court of Judicature at Bombay also observes that The State Government could not have postponed the choice of Chairman by the members of the Standing Committee. The position that there is no legal foundation or power to make such a particular directive to Municipal Corporations and the Collector has validity, according to the Honourable High Court of Judicature at Bombay. There has been no legal authority cited to us to support the directive or notification dated April 9, 2021.

5. The Honourable High Court of Judicature in Bombay has reviewed Section 451 of the Maharashtra Municipal Corporations Act, 1949 and has concluded that it does not apply in this case. Because of this postponement, which was then acted on by the Collector and the Ulhasnagar Municipal Corporation, the current Standing Committee's election of Chairman did not take place as planned. The Honourable High Court of Judicature at Bombay may clarify that some categories of essential activities were permitted even under the State Government LockDown Orders, and it was up to the Ulhasnagar Municipal Corporation and the Standing Committee to determine whether the election and appointment of a Chairman could have taken place at a physical meeting of the Standing Committee members or if it could have been accomplished by another method, such as a virtual meeting It was not the responsibility of the state government to order and direct its delay.

6. Honourable High Court of Judicature at Bombay also observes that regardless, even if the State Government was within its rights to order the Chairman's election to be postponed, the Standing Committee cannot be held responsible. As a result, the time spent appointing a Chairman of the Standing Committee cannot be used to invoke Section 21(5), therefore depriving the Standing Committee members of their right to nominate their own Chairman under Section 21 of the Maharashtra Municipal Corporations Act, 1949. Even though the State Government has the authority to issue the order and directive, that time must be omitted from calculating the thirty-day timeframe, especially since the State Government order refers to the Standing Committee's selection of the Chairman being postponed. For this reason, the Honourable High Court of Judicature at Bombay finds no validity in Shri Kohli and Shri Limaye's argument that the members of the reconstituted Standing Committee have lost their right and entitlement to choose a chairman from among themselves because of a thirty-day delay.

7. Honourable High Court of Judicature at Bombay also observes that if the State Government has stated that the order or direction of May 6, 2021 (which was also issued in response to the Covid-19 Pandemic) does not apply to the Ulhasnagar Municipal Corporation, then the order or direction of April 9, 2021, should not apply to those Standing Committees that were reconstituted before the May 6, 2021 direction. The Standing Committee, as reconstituted on April 1, 2021, must be permitted to operate under Section 21 of the Maharashtra Municipal Corporations Act, 1949 and to elect its own Chairman.

The Decision Held by the Court

1. Honourable High Court of Judicature at Bombay find no merit in Shri Patil's Writ Petition No. 10544 of 2021. As a result, the same is disregarded. 

2. The Honourable High Court of Judicature in Bombay dismissed Issue No. 2. The Writ Petition St. No. 10801 of 2021's prayer (b) is allowed. The Honourable High Court of Judicature at Bombay orders that a meeting of the Standing Committee to nominate its chairman be convened within 15 days of this Order's issuance.

3. The meeting for the appointment of Chairman by the Standing Committee may be held as a physical meeting or, if there is no limitation in the applicable Rules, it may be held as a virtual meeting. Honourable High Court of Judicature in Bombay not examining Writ Petition St. No. 10828 of 2021 separately since the reliefs are identical to those in Writ Petition No. 10801 of 2021, and that Petition is essentially permitted by the Order in Writ Petition St. No. 10801 of 2021. 

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