VISHNU SHIVRAM MEHERE Vs. CITY OF AKOLA MUNICIPAL CORPORATION AND OTHERS

BOMBAY HIGH COURT

DIVISION BENCH

( Before : V.C. Daga, J; S.B. Deshmukh, J )

VISHNU SHIVRAM MEHERE — Appellant

Vs.

CITY OF AKOLA MUNICIPAL CORPORATION AND OTHERS — Respondent

Writ Petition No. 3418 of 2003

Decided on : 08-12-2003

Maharashtra Local Authority Members Disqualification Act, 1986 – Section 3, Section 3(1), Section 4, Section 4(1)(B), Section 4(i)(h)(b), Section 4(l)(B)(b)

Cases Referred

Bhut Nath Mete Vs. The State of West Bengal, AIR 1974 SC 806 : (1974) CriLJ 690 : (1974) 1 SCC 645 : (1974) SCC(Cri) 300 : (1974) 3 SCR 315
Lt.-Col. Prithi Pal Singh Bedi and Others Vs. Union of India (UOI) and Others, AIR 1982 SC 1413 : (1983) CriLJ 647 : (1982) 1 SCALE 676 : (1982) 3 SCC 140 : (1983) 1 SCR 393 : (1982) 2 SLJ 582 : (1982) 14 UJ 695
Commissioner of Income Tax, Bangalore Vs. J.H. Gotla, Yadagiri, AIR 1985 SC 1698 : (1985) 48 CTR 363 : (1985) 156 ITR 323 : (1985) 4 SCC 343 : (1985) 2 SCR 711 Supp : (1986) 1 UJ 628
State of Rajasthan and Others Vs. Union of India and Others, AIR 1977 SC 1361 : (1977) 3 SCC 592 : (1978) 1 SCR 1
Rohidas Shankar Patil Vs. Smt. Mayra Gilbert Mendosa, the Hon’ble Mayor of the Municipal Corporation of the City of Mira Bhayander, The Municipal Corporation of the City of Mira Bhayander, The State of Maharashtra and Parshuram Damodar Patil, (2003) 2 ALLMR 792 : (2003) 5 BomCR 600 : (2003) 4 MhLj 520

JUDGMENT

V.C. Daga, J.—Rule, returnable forthwith. Heard by consent of parties.

2. The petitioner is challenging the decision of Respondent No. 2, dated 22nd August, 2003 recognising the respondent No. 3 as the Leader of Opposition in the Municipal Corporation of Akola, the respondent No. 1 (‘the Corporation’ for short).

Factual Scenario :

3. The factual scenario depicts that the respondent No. 2 is holding office of Mayor of the respondent No. 1, the Corporation, established u/s 5 of the Bombay Provincial Municipal Corporation Act, 1949 (hereinafter referred to as ‘the Act’ for short).

4. The general election of the respondent No. 1- Corporation was held sometime in the month of February 2002. The petitioner contested as authorised candidate of Congress (I) and got duly elected as Municipal Corporator from Ward No. 22-C. The respondent No. 2 has recognised Respondent No. 3 as a Leader of Opposition. This decision is the subject matter of challenge in this petition under Articles 226 and 227 of the Constitution of India.

5. The party scenario of various other political parties or fronts or aghadi in respondent No. 2- Corporation is catalogued hereinbelow :

Congress (I)……………… 9 Corporators

Nagar Vikas Front…………. 7

Bharip Bahujan Mahasangh…… 6

Muslim League…………….. 5

Navnirman Manch…………… 4 “

Rashtrawadi Congress………. 3

6. B.J.P. and Shiv Sena coalition which took place prior to election, could muster highest numerical strength and became a Ruling Party. The Indian National Congress [Congress (I)] having greatest numerical strength became the largest opposition party in the Corporation entitled to stake claim for the office of Leader of the Opposition. Indian National Party informed the respondent No. 2 that they have chosen the petitioner as their party Leader, who could be recognised as Leader of Opposition in the Corporation. Accordingly, petitioner came to be recognised as Leader of Opposition in the respondent No. 1-Corporation.

7. On or about 31st July, 2003, petitioner suffered a blow from his party colleagues Corporator. Five of them, who were elected as authorised candidates of Indian National Congress Party, by their joint letter dated 31-7-2003, informed the respondent No. 2, Mayoress of the Corporation that they have formed a separate group and elected one Shri Ab Latif Din Mohd. Khatri, respondent No. 3 herein, as their group leader and that he be designated and recognised as Leader of Opposition since the Indian National Congress has ceased to be a party having greatest numerical strength.

8. The respondent No. 2 after having satisfied with the contents of the letter dated 31st July, 2003 and taking into account the split in the Indian National Congress: firstly called upon Dr. Kishor Malokar, Leader of Nagar Vikas Front to submit his consent or the name of any other Councillor from his party for being recognised as a Leader of Opposition, it being a party having greatest numerical strength after Congress (I) in the Corporation, However, Mr. Malokar by his letter dated 19th August, 2003 informed respondent No. 2 that nobody from his party is interested and willing to hold office of the Leader of Opposition in the Corporation.

9. Since the leader of Nagar Vikas Front having next greatest numerical strength refused to shoulder the responsibility as a leader of opposition, the respondent No. 2 called upon Mr. Sunil Mishra, leader of Bharip Bahujan Mahasangh having six elected councillors to submit his consent or name of any other councillor from his party for being recognised as Leader of Opposition in the Corporation. Mr. Sunil Meshra, by his letter dated 19th August, 2003 informed respondent No. 2 his inability and that nobody from his party is willing to act as leader of opposition. However, he communicated his party’s support to respondent No. 3 Mr. Ab.Latif Din Mohammad Khatri, Municipal Corporator.

10. The respondent No. 2, thereafter, after having received negative response from two parties; one after another and after having considered the legal provisions passed an order dated 22nd August, 2003 recognising respondent No. 3 as leader of opposition in the Corporation being a Leader of Muslim League party in opposition having 5 elected councillors in the corporation. This decision of respondent No. 2, as already stated hereinabove; is a subject matter of challenge in this petition filed under Articles 226 and 227 of the Constitution of India. Submissions :

11. Mr. G.B. Lohiya, learned counsel for the petitioner, while challenging the decision of respondent No. 2 to recognise respondent No. 3 as leader of opposition in respondent No. 1 Corporation, contends that Corporator/Councillor who is the Leader of the Nagar Vikas Front; having greatest numerical strength in the house ought to have been recognised as leader of opposition. He contends that merely because Nagar Vikas Front informed respondent No. 2 that they do not want to hold office of the Leader of Opposition, that does not mean that respondent No. 2 gets right to recognise a person as leader of opposition from any other party which does not have greatest numerical strength in the house. He further contends that recognition of leader of opposition does not depend upon the desire of a Leader of particular party to hold or not to hold such office but depends upon the condition precedent laid down u/s 19-1AA, which specifically lays down that an elected Councillor who is, for the time being, the leader of the party in opposition, having greatest numerical strength and recognised as such by the Mayor, shall be the Leader of Opposition. Mr. Lohiya submits that Mayor has no discretion. The Mayor must follow the letter of law. The Mayor has no right to select and recognise the Leader of opposition as per the desire of any party. The pre-condition for recognition as Leader of Opposition is that the Corporator must be an elected councillor who is, for the time being, the leader of the party in opposition, having greatest numerical strength and must be. recognised as such by the Mayor. According to Mr. Lohiya, respondent No. 3 does not satisfy any of the conditions as such designation and recognition of respondent No. 3 as Leader of Opposition is void and illegal and the same is liable to be set aside on this count alone.

12. Mr. Lohiya representing the petitioner further urged that Indian National Congress has not received any information or intimation from their five Corporators that they have formed a separate group of five persons. He submits that these five Corporators are neither expelled nor resigned from the party. Neither such information was given by them to their original party nor to the Commissioner, Amaraoti Division, Amaraoti about their formation of the separate group under the provisions of the Maharashtra Local Authority Members’ Disqualification Act, 1986 and rules framed thereunder (“the Members Disqualification Act” and “Rules” for short). As such Mr. Lohiya further submits that the original party of the petitioner i.e. Indian National Congress is still having nine members. In this view of the matter, he submits that even today INC/Congress (1) continues to be the largest opposition party in the Corporation. It has greatest numerical strength in the Corporation. He thus submits that merely because five members/councillors/corporators have allegedly given letter to respondent No. 2, that by itself is not sufficient to say that they ceased to be the members of Indian National Congress. He submits that the said Corporators cannot form any other political group without incurring disqualification as such these five corporators are deemed to be the members of the Indian National congress for all purposes as such recognition of respondent No. 3 as Leader of Opposition by respondent No. 2 is bad and illegal.

13. Alternatively, Mr. Lohiya submits that notwithstanding formation of the separate group by five councillors; for the purposes of section 3(1) of the said Act then shall have to be treated as belonging to their original political party. While interpreting section 4(l)(B)(b), he submits that respondent No. 2 has no jurisdiction to treat the Indian National Congress, a party having only four members in the Corporation whereas it still has nine members. He, thus, contends that the decision and/or order dated 22nd August, 2003 passed by respondent No. 2 recognising respondent No. 3 as Leader of Opposition is bad and illegal and the same is liable to be set aside.

Per Contra :

14. At the outset, Mr. A.M. Gordey, learned counsel for the caveator -respondent No. 3, by way of preliminary objection, relying upon the Division Bench judgment of this Court in the case of Rohidas Shankar Patil Vs. Smt. Mayra Gilbert Mendosa, the Hon’ble Mayor of the Municipal Corporation of the City of Mira Bhayander, The Municipal Corporation of the City of Mira Bhayander, The State of Maharashtra and Parshuram Damodar Patil, , which has borrowed strength from the judgment of the Apex Court in the case of Bhut Nath Mete Vs. The State of West Bengal, , submitted that the question of political wisdom could not be subjected to judicial review under Article 226 of the Constitution of India and prayed for rejection of the petition.

15. Mr. Gordey, learned counsel for respondent No. 3 submits that the office of the leader of opposition as provided in section 19-IAA is a statutory office. It cannot be kept vacant. In his submission, in a case where an elected councillor who is Leader of Party in opposition having greatest numerical strength refuses to be nominated and get recognised as a Leader of Opposition, the Mayor has to recognise an elected Leader of the next party in opposition having next greatest numerical strength. In his submission, any other interpretation of section 19-IAA will render the said section ineffective.

16. Mr. Gordey further submits that in order to achieve the democratic set up and to make the provision workable purposive and meaningful interpretation will have to be put on the newly inserted section 19-IA and 19-IAA inserted by section 36 of the Maharashtra Municipal Corporations and Municipal Councils, Nagar Panchayat, Industrial Township (Amendment) Act, 2000 (Maharashtra Act No. XI of 2002), and it will have to be held that section 19-IAA contemplates sliding down of a recognition of a Leader of Opposition to a Leader or councillor from the party in opposition having the next greatest numerical strength.

17. Mr. Gordey further submits that the office of Leader of Opposition cannot be allowed to be kept vacant and has to be filled in from the largest minority party which is prepared to shoulder the responsibility of the office of the Leader of Opposition.

18. Mr. Gordey further submits that the interpretation of section 4(l)(B)(b) of the Members’ Disqualification Act canvassed by Mr. Lohiya on behalf of the petitioner is not only contrary to the scheme of the said Act but it runs counter to the spirit of the said section. In his submission, on correct reading of section 4(l)(B)(b) it is clear that the break-away; newly formed group of 5 councillors or corporators will assume the character of a political party and the said group or political party is deemed to be their original party for the purposes of sub-section (1) of section 3 of the Members’ Disqualification Act. He thus submits that the petition is devoid of any substance and the same is liable to be dismissed. Other respondents supported Mr. Gorday. The statutory provisions and dissection thereof:

19. We have given our thoughtful consideration on the rival submissions mainly canvassed by Mr. Lohiya and Mr. Gordey representing rival views.

20. Before proceeding to consider the rival submissions, it is useful to reproduce relevant statutory provisions governing the controversy which run as under:

21. Bombay Provincial Municipal Corporation Act, 1949 as amended by Maharashtra Act No. XI of 2002 provides for recognition of the “Leader of Opposition” who must be elected councillor and the leader of the party in opposition having greatest numerical strength.

22. Section 19 of the said Act declares that the Corporation at its first meeting after general election shall elect from its councillors one of its members as Mayor (or Mayoress) and another to be Deputy Mayor (or Mayoress).

23. Section 19-1A deals with Leader of the House, whereas section 19-1AA with Leader of Opposition. We are basically concerned with the provision of section 19-IAA which reads thus:

“19-1AA. Leader of Opposition. – (1) An elected Councillor who is, for the time being, the Leader of the Party in opposition, having greatest numerical strength and 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 honoraria and allowances and other facilities as may be provided by the regulations made in this behalf by the Corporation.” Section 19-1(AA) can be analysed as follows :

In order to recognise a person as a leader of opposition:

(a) He must be an elected Councillor for the time being;

(b) He should be a leader of the party in opposition;

(c) Said party in opposition is having greatest numerical strength and;

(d) recognised as such by the Mayor.

In case of two or more parties in opposition having the same numerical strength, the Mayor shall recognise a leader of opposition having regard to the status of the party in opposition.

24. In order to recognise a person as a Leader of Opposition, he must belong to a party in opposition and if the numerical strength of the said party in opposition is the greatest one, then the leader of said opposition party is to be recognised as a Leader of Opposition. The phraseology and the language used in the said section clearly shows that the Councillor of a party in opposition and who is a leader of the said party, if the said party is having greatest numerical strength has to be recognised by the Mayor, as a Leader of Opposition. In case of unequal strength of the party in opposition, the Mayor has no other option but to recognise the Councillor of a party having greatest numerical strength as a Leader of Opposition.

25. The anti-defection law i.e. the Maharashtra Local Authority Members’ Disqualification Act, 1987 is applicable to the members elected in the Municipal Council, This Act defines the Councillor means Councillor of the Municipal Corporation or the Municipal Council or Zilla Parishad. “Local Authority” has been defined as a Municipal Corporation, a Municipal Council, a Zilla Parishad or a Panchayat Samiti. The words “original political party” have been defined in relation to a councillor or a member means a political party to which he belongs for the purposes of sub-section (1) of section 3. Words “municipal party” has been defined in relation to the Councillor belonging to any political party or aghadi or front in accordance with the Explanation to section 3, means :

(i) In the case of a councillor of a Municipal Corporation, the group consisting of all councillors of the Municipal Corporation for the time being belonging to that political party or aghadi or front in accordance with the said Explanation.

(ii) In the case of a Councillor of a Municipal Council, the group consisting of all the councillors of the Municipal Council for the time being belonging to that political party or aghadi or front in accordance with the said Explanation.

Section 3 of the said Act provides for the disqualification on the ground of defection and in explanation it has been stated that:

For the purpose of this section

(a) a person elected as a councillor, or as the case may be, a member shall be deemed to belong to the political party or aghadi or front, if any, by which he was set up as candidate for election as such councillor or member.

(b) ….. ………….. (Not applicable)

(c) ….. ………….. (Not applicable)

Word “aghadi” or “front” has been defined to mean a group of persons who have formed themselves into party for the purposes of setting up of candidate for election to the local authority.

26. Section 4 describes disqualification on the ground of defection not to apply in case of split.

4. (1) Where a councillor, or as the case may be, a member makes a claim that he and any other member of the municipal party, Zilla Parished party, or as the case may be, the panchayat Samiti party constitute the group representing a faction which has arisen as a result of a split in his original political party or aghadi or front and where the total strength of the councillors or, as the case may be members – (A) does not exceed twenty and such group consists of one-half, or (B)………………………

(a) he shall not be disqualified under sub-section (1) of section 3 on the ground

(i) that he has voluntarily given up membership of his original political party or aghadi or front or;

(ii)……………………..

(b) from the time of such split, such faction shall be deemed to be the political party or aghadi or front to which he belongs for the purposes of sub-section (1) of section 3 and to be his original political party or aghadi or front for the purposes of this section.

(2) Notwithstanding anything contained in sub-section (1), a councillor or, as the case may be, member shall be precluded from making such a claim as referred to in sub-section (1) for more than once during his term of office under the relevant municipal law or, as the case may be, the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961.

27. It is important, to note that for the purposes of implementation of Maharashtra Local Authority Member’s Disqualification Act rules have been framed and as per those rules the leader of municipal party is expected to submit information about the members of his political party or municipal party to the Divisional Commissioner of the division or council in a prescribed form within 30 days from the date of formation or within such further extended period to the Commissioner of division as prescribed under rule 3. Sub-rules (3) and (4) of rule 3 further prescribes as under :

(3) In the event of any increase in the strength of a municipal party or a Zilla Parishad party in relation to a councillor and the Panchayat Samiti party in relation to a member, consisting of only one member, the provisions of sub-rule (1) shall apply in relation to such party a if such party had been formed on the first date on which its strength increased.

(4) Whenever any change takes place in the formation furnished by the leader of a municipal party or a Zilla Parishad party, in relation to a Councillor and by the leader of a Panchayat Samiti party, in relation to a member under sub-rule (1) or by a member under sub-rule (2), he shall as soon as may be thereafter and in any case not later than thirty days from the date on which such change has taken place or within such further period as the commissioner, or, as the case may be, Collector may for sufficient reason allow, furnish in writing the information with respect to such change to the Commissioner or, as the a case may be, Collector.

Whenever any change takes place in the information furnished by the leader of a municipal party in relation to a member under sub-rule (1) or by a member under sub-rule (2), he shall as soon as may be thereafter and in any case not later than thirty days from the date on which such change has taken place or within such further period as the Commissioner may for sufficient reasons allow, furnish in writing the information with respect to such change to the Commissioner as prescribed under the rule.

28. In order to have complete democratic set up in the Corporation one is required to interpret section 19-1AA of the Bombay Provincial Municipal Corporations Act, and at the same time the provisions of Maharashtra Local Authority Members’ Disqualification Act cannot be ignored.

29. Thus combined reading of the aforesaid provision would show that the word “party” appearing in section 19 means a “political party”. The political party in relation to a councillor or a member means a political party to which he belongs for the purposes of sub-section (1) of section 3. As per Maharashtra Local Authority Members’ Disqualification Act and rules framed thereunder a party leader of each municipal party has to furnish information to the Commissioner within the prescribed Period and when any change takes place in the information furnished by the leader of the municipal party then, changed information is also required to be furnished within the stipulated period as referred to hereinabove. Therefore, it would be clear that when there is change in the municipal party, the change therein is recognised subject to the provisions of Act and Rules.

The Issues:

30. The substantive issues on the pleadings and rival contentions as between the parties are as follows :

(A) Whether u/s 19-1AA, the Mayor has a power to recognise an elected councillor, who is, for the time being Leader of the Party in opposition having next highest numerical strength in the event of refusal by an elected councillor who is for the time being the Leader of the Party in opposition, having greatest numerical strength?

(B) Whether from the time of split in the INC/Congress (1) such faction or break-away group [consisting of five (5) elected councillors] can be deemed to be the political party to which they belong for the purpose of sub-section (1) of section 3 and to be their original political party as contemplated in of section 4 (i) (h) (b) of the Members’ Disqualification Act?

CONSIDERATION:

As to Preliminary Objection:

31. Having heard the parties at length, let us first consider the preliminary objection raised by learned counsel for respondent No. 3 as to whether political wisdom can be subjected to the judicial review. It is now well established that it is not within the province of the judiciary to determine political questions, except to the extent that power to deal with such questions has been conferred on the Courts by express constitutional or statutory provisions. This is known as the “political question” doctrine. The doctrine is based on constitutional provisions relating to the distribution of powers among the branches of government, and it is as a function of the separation of powers that political questions are not determinable by the judiciary. Thus, the limitations on judicial review imposed by the “political question” doctrine apply only when the Court is faced with a challenge to action by a coordinate branch of the government, and not where the issue involved falls within the traditional role accorded to the Courts to interpret the law or the Constitution. The political question doctrine is a facet of the broader concept of justifiability, and it is a function of the separation of powers that political questions are non-justifiable, even if a claim possesses the general attribute of justifiability, it may not be decided; if it involves a political question.

32. As already noticed herein above, it is now well settled that the Courts are expected to decline” jurisdiction over all “political questions”. One of the important, corollary of Courts refusal to exercise judicial powers is the doctrine of “political questions”. In exercise of its powers of its judicial review; time and again it has been pointed out by various Courts that certain powers are vested in the legislative or executive departments of the Government to be exercised in a purely discretionary manner, and that whether they have been constitutionally exercised or not is a “political question” which the Court is not expected to undertake to decide, [see Luther vs. Borden, 7 Harward 1:12 L.Ed. 581 (1849)]

33. The political question doctrine limits the exorcise, not the existence, of judicial power, thus, even though a dispute may constitutionally be subject to judicial power, if a political question is present, a Court should decline to reach the merits. However, the simple fact that a conflict exists between the legislative and executive branches of government does not preclude judicial resolution under the political question doctrine, and the fact that a case is viewed as a political case, or involves political controversy, does not mean that it presents only political questions beyond the jurisdiction or proper role of the Courts. The application of the political question doctrine is not appropriate where neither of the conflicting political branches has clear and unequivocal title and it is or may be possible to establish effective judicial settlement.

34. It is not easy to define the phrase “political question”, nor to determine what matters fall within its scope. It is frequently used to designate all questions that lie outside the scope of the judicial power. More properly, however, it means those questions which under the constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government. A political question encompasses more than a question about politics, but the mere fact that litigation seeks protection of a political consequences does not mean it presents a political question.

35. In any event, in determining whether a particular case presents a political question, the fact of such case are controlling. In order to understand which questions are political and not available for judicial determination and which are available to the Courts to determine, let us examine the same by taking concrete example. As to whether or not a new Constitution has been adopted would be a political question, not one for judicial determination. Whether an amendment to the existing Constitution has been duly proposed, adopted and satisfied in the manner required by the Constitution, so as to become part thereof is ordinarily considered to be a question for the Courts to determine. Where the Governor is vested with the sole right and duty of ascertaining and declaring the result, in which case the Courts have no jurisdiction to revise his decision but decision making process could certainly be subjected to judicial review.

36. With the above understanding, on the facts of the case on hand let us determine which part of the controversy will fall within the area covered by the doctrine of “political question”, so as to say that it is not within the province of this Court to determine that part of the controversy. Having examined the facts of the case on hand, on the touchstone of section 19-1AA of the Bombay Provincial Municipal Corporation Act, power to recognise Leader of the Opposition is with the Mayor. In our opinion, the question as to who should be recognised as ‘Leader of Opposition’ could be said to be a political question because such recognition by Mayor is final and conclusive. But how the Mayor should exercise that power could not be within the sweep of “political question” doctrine. One may say that the question has a political complexion but no one can say that what procedure should be adopted to recognize an elected councillor of the party for the time being in opposition, having greatest numerical strength is a political question.

37. It was submitted by Mr. Gordey that we should not enter a political thicket by answering the question raised before us. The question before us relates to the interpretation of section 19-1AA of the Bombay Provincial Municipal Corporation Act. It is a duty of this Court to interpret the (State) Legislation. It must perform that duty regardless of the fact that the answer to the question would have a political effect. In State of Rajasthan and Others Vs. Union of India and Others, it was said by Bhagwati, J (as he then was) (pp. 660-61, para 149):

“But merely because a question has a political complexion, that by itself is no ground why the Court should shrink from performing its duty under the Constitution if it raises an issue of constitutional determination. Every constitutional question concerns the allocation and exercise of governmental power and no constitutional question can, therefore, fail to be political……..So long as a question arises whether an authority under the Constitution has acted within the limits of its power or exceeded it, it can certainly be decided by the Court. Indeed it would be its constitutional obligation to do so. It is necessary to assert the clearest possible terms, particularly in the context o f recent history, that the Constitution is suprema lex, the paramount, law of the land, and there is no department or branch of Government above or beyond it.”

Relying on the above observation, we are of the opinion that the question raised before us which revolves around the interpretation of section 19-1AA and concerns decision making process as such is open for judicial review. In other words, the judicial review to the extent of decision making process is permissible. Accordingly, the preliminary objection raised by Mr. Gordey stands answered.

As to Issue-A

38. Having fixed the contours of the political question doctrine, let us now confine ourselves to the question which is within the province of the judiciary to determine, which we have crystallized in the form of Issue-A.

39. The issue arising from the factual matrix of the case poses a legal question as to when an elected councillor, who is, for the time being, the leader of the Party in opposition, having greatest numerical strength, refuses to be nominated and recognised as leader of opposition, in that event, what steps the Mayor of the Corporation should take. Is it open for him/her to recognise an elected councillor from the next Party in opposition, having next highest numerical strength. To this plain question, plain answer on the text of section 19-1 AA is not available, if one reads the said section textually or literally, that is; by giving to the words used by the legislature their ordinary, natural and grammatical meaning. Literal reading of the section may lead to absurd situation. The office of the Leader of Opposition in that event may have to be kept vacant so long as the councillor who is, for the time being, the Leader of the Party in opposition, having greatest numerical strength does not come forward to accept the responsibilities of the office of Leader of the Opposition. We do not think that the legislature intended that such an important office of the Leader of Opposition should remain vacant. In order to find solution to this question it would be necessary to interpret section 19-1AA of the Bombay Provincial Municipal Corporation Act. However, before restoring to this mode of interpretation, let us turn to the settled principles of interpretation of statutes.

40. In the case of Jugalkishor Saraf vs. M/s. Raw Cotton Co. Ltd., AIR 1955 SC 376 the Apex Court has observed as under :

“The cardinal rule of construction of statutes is to read the statute literally, that is, by giving to the words used by the legislature their ordinary, natural and grammatical meaning. If, however, such a reading leads to absurdity and the words are susceptible of another meaning the Court may adopt the same. But if no such alternative construction is possible, the Court must adopt the ordinary rule of literal interpretation.”

41. The interpretation, which is an interpretation according to the intent departs from the letter of the law and goes behind the language used in the statute for the ascertainment of its meaning when grammatical interpretation leads to some absurdity or inconsistency. In such cases, it is the duty of the Court to discover and give effect to the true intention of the legislature.

42. In order to ascertain the exact meaning of what the Legislature has actually said, Denning, L.J. went so far as to observe that “we sit here to find out the intention of Parliament and Ministers and carry it out and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis.” [Magor & St. Melius Rural District Council vs. Newport Corporation, (1950) 2 All E.R. 1226, 1236].

43. The golden rule of interpretation is that a construction which creates anomalous situation, should, if possible, be avoided. Where the plain literal interpretation of a statutory provision produces a manifestly unjust result which could never have been intended by the legislature, the Court might modify the language used by the legislature so as to achieve the intention of the legislature and produce a rational construction. The task of interpretation of a statutory provision is an attempt to discover the intention of the legislature from the language used. It is necessary to remember that language is at best imperfect, instrument for the expression of human intention. It is well to remember the warning administered by Judge Learned Hand that one should not make a fortress out of dictionary but remember that statutes always have some purpose of object to accomplish and sympathetic and imaginative discovery is the surest guide to their meaning as observed by the Supreme Court in Commissioner of Income Tax, Bangalore Vs. J.H. Gotla, Yadagiri, .

44. The statute as well known must be interpreted having regard to the purport and object which it seeks to achieve. The Court while interpreting provisions of statute, although, is not entitled to re-write the statute itself, is not debarred from, “ironing out the crease”. The Court should always interpret the section in such a manner which would make it workable. The statue as well known must be interpreted having regard to the text and context thereof. Mischief rule may also be applied in a given case. While construing the statute the object of the Act must be taken into consideration as held by the Apex Court in the case of Killick Nixon Ltd. vs. Dy. Commissioner of income tax, (2003) 1 SCC 144. The object of the section is to provide a Leader of Opposition to the House of the Corporation and not to keep the said office vacant. Why the office of the Leader cannot be kept vacant is another question which needs to be answered. To answer this question, one has to consider the importance of the office of the Leader of Opposition and Legislative intent behind it.

45. It will be useful to make reference to the case of Lt.-Col. Prithi Pal Singh Bedi and Others Vs. Union of India (UOI) and Others, , wherein it is observed by the Supreme Court as under :

“The dominant purpose in construing a statute is to ascertain the intention of the Parliament. One of the well recognised canons of construction is that the legislature speaks its mind by use of correct expression and unless there is any ambiguity in the language of the provision the Court should adopt literal construction if it does not led to an absurdity. The first question to be posed is whether there is any ambiguity in the language used in the provision. If there is none, it would mean the language used, speaks the mind of Parliament and there is no need to look somewhere else to discover the intention or meaning. If the literal construction leads to an absurdity, external aids to construction can be restored to. To ascertain the literal meaning it is equally necessary first to ascertain the juxtaposition in which the rule is placed, the purpose for which it is enacted and the object which it is required to observe and the authority by which the rule is framed.”

46. For this external aid, one can turn to the Ershine May’s Treatise on the law of privileges Proceedings and Usage of Parliament (22nd Edn.). In this, recognised centre-piece of Parliamentary Literature, while dealing with “the official opposition”, enunciated the role of Leader of the Opposition as under :

THE OFFICIAL OPPOSITION

The importance of the Opposition in the system of parliamentary government has long received practical recognition in the procedure of Parliament. Even before the first Reform Act the phrase ‘His Majesty’s Opposition’, had been coined by John Cam Hobhouse. In 1937 statutory recognition was accorded through the grant of salary to the Leader of Opposition. The prevalence (on the whole) of the two party system has usually obviated any uncertainty as to which party has the right to be called the ‘Official Opposition’; it is the largest minority party which is prepared, in the event of the resignation of the Government, to assume office. The Leader of the Opposition and some of his principal colleagues in both Houses form a group, popularly known as ‘the Shadow Cabinet’, each member of which is given a particular range of activities on which it is his task to direct criticism of the Government’s policy and administration and to outline alternative policies. Since the strength of modern party discipline makes a Ministry largely invulnerable to direct attack in the House of Commons, the criticism of the Opposition is primarily directed towards the electorate, with a view to the next election, or with the aim of influencing Government policy through the pressure of public opinion. The floor of the House of Commons provides the Opposition with their main instrument for this purpose. Accordingly, the Opposition has acquired the right to exercise the initiative in selecting the subject of debate on a certain number of days in each session and on such occasions as the debate or; the address in reply to the Queen’s Speech or from time to time by putting down motions of censure. The Leader of the Opposition is by custom accorded certain rights in asking questions of Ministers (see p .336), and members of the Shadow Cabinet and other official Opposition spokesmen are also given some precedence in asking questions and in debate.

47. In this behalf one may also turn to the book “Practice and Procedure of Parliament Vol.1” by M/s. M.N. Kaul and S.L. Shakdhar. In the Chapter of Parliamentary Functionaries, while dealing with “Leader of Opposition” on page 115, enunciated the role of Leader of Opposition in the following words:

“The Leader of the Opposition is the official spokesman of the minority or minorities and to that end he zealously watches any encroachment on their rights. His task, though not so difficult as that of the Prime Minister, is of sufficiently great public importance because he has to maintain a team – a ‘shadow Cabinet’ – ready to take over administration. In performing his duties and obligations, the Leader of the Opposition has to take into account not only what he is today but what he hopes to be tomorrow.”

48. The aforesaid extracted portions from leading books of the recognised authors on the subject in unequivocal terms recognize the important role of the Leader of Opposition. The House of the Corporation can be termed as mini-parliament. The role of the Leader of the Opposition in the House of the Corporation cannot be underestimated. The office of the Leader of Opposition cannot be kept vacant. If the object of the statute is to provide Leader of Opposition in the Corporation via Section 19-1AA, then the purposive interpretation will have to be adopted to meet the contingency faced by the unusual situation created by the denial to hold office of Leader of the Opposition by the parties in opposition; one after another, having greatest numerical strength in the House of the Corporation.

49. The Leader of Opposition must be a person, who is willing to discharge obligations of that office. The party in opposition to which a Leader of Opposition belongs must be prepared to shoulder the responsibilities of that office. Unwilling person or party cannot be trusted with the responsibility of the office of the Leader of Opposition. The Leader of the Opposition has a right to participate in framing agenda of the meetings. He has a right to exercise initiative in selecting the subjects of debate. He has a right to address in reply. He has a right to focus public opinion in the house against the policy of the ruling party. He has right to move motions of censure. The Leader of Opposition has a right to ask certain questions to the ruling group or parties and he is also given precedence in asking questions and in debate. The Leader of Opposition has to push policies or political ideology of his political party or group in the House of the Corporation, All that his participation or working must reflect the ideology of the political party to which he belongs. It is thus necessary that the party in opposition or person belonging to such political party must be prepared and willing to discharge the obligations, duties and responsibilities attached to the office of Leader of Opposition.

50. The Leader of Opposition is given financial assistance from public funds to discharge his parliamentary duties. The history for statutory recognition to such financial assistance for the first time appears to have been accorded through the grant of salary to the Leader of Opposition in the House of Commons in 1937. The salary was first granted to the Leader of Opposition by the Ministers of Crown Act, 1937 enacted in the said year. Now the Members who are Officers of House of Commons, Ministers of Crown, Leaders of Opposition, Opposition Whips are entitled of salary under the Ministerial and Other Salaries Act, 1975. The Indian Parliament considering the statutory recognition accorded to the Leader of Opposition in United Kingdom, Australia and Canada and, taking into account parliamentary democracy and important role, the Leaders of Opposition have to play, accorded statutory recognition and given salary and certain other facilities and amenities to enable them to discharge their functions in the parliament through the enactment known as Salary and Allowances of Leader of Opposition in Parliament Act, 1977.

51. In India, number of States have also started giving facilities and amenities to the Leader of Opposition in the State Legislative Assemblies. In Maharashtra, since 1970, provisions have already been made in the Bombay Legislature Members Salaries and Allowances Act, 1976 to give to the Leader of Opposition in two Houses of the State Legislature the salary, residential accommodation and certain facilities and amenities as are ordinarily given to the Ministers of Government. But in the other respects, these leaders are governed by the provisions of the said Act which are applicable to any other members of the legislature.

52. Having regard to the important role of the Leaders of Opposition in the parliamentary democracy, it was considered that they should be accorded a separate statutory recognition and given the salary, allowance, facilities and other amenities suitable for their status as are necessary to enable them to discharge their functions properly. The Leaders of Opposition in Maharashtra Legislature Salaries and Allowances Act, 1978 mainly seeks to achieve above object in self-contained code for the Leaders of Opposition and to make consequential amendment in the Bombay Legislature Members Salaries and Allowances Act, 1956 so that the Leader of Opposition may seek to govern by the said Act. The similar provision is to be found under the provisions of sub-section (2) of section 19-1AA of the Bombay Provincial Corporations Act, 1949 which reads as under :

“(2) There shall be paid to the Leader of the Opposition such honoraria and allowances and other facilities as may be provided by the regulations made in this behalf by the Corporation.”

53. The cumulative reading of the aforesaid legislation would unequivocally demonstrate important role of the Leader of Opposition not only recognised by the State Legislation but also by the Indian Parliament. Such an important office, by no stretch of imagination, can be allowed to be kept vacant in any house. It is, therefore, necessary to read down the provision of section 19-1AA of the Act to meet the situational requirement.

54. At this juncture, it will not be out of place to mention that in James vs. Commonwealth of Australia, 1930 (2) All England Reports 1449 at pages 1456 and 1464 (IV/36), it has been held by the Privy Council that “….. Further, in construing Constitution of a growing country, some breadth of interpretation is permissible. At page 1464 it has been observed that one has to see to the terms of the instruments by which affirmatively, the legislative power were created, and by which, negatively, they are restricted. The Apex Court in Indira Sawhney vs. Union of India, 1992 Supp. (3) SCC 217 para 398/502 observed that the Constitution being essentially a political document, has to be interpreted to meet the felt necessities of the time.

55. The aforesaid principles can well be applied even to the State legislation dealing with the functioning of the democratic institutions which are expected to function exclusively on the basis of Parliamentary System. In the circumstances, we have no hesitation in reading down the said section 19-1AA to hold that the said section contemplates recognition of a “willing Leader” of the party in opposition, having highest numerical strength as a Leader of the Opposition.

56. In the above view of the matter, in our opinion, respondent No. 2 was perfectly justified in recognizing respondent No. 3 as Leader of Opposition, especially, when the parties having larger numerical strength in the house refused to accept the responsibility of the Leader of Opposition. In no circumstance, the office of the Leader of Opposition in the Corporation could have been kept vacant by respondent No. 2. Therefore, no fault can be found with the procedure adopted by respondent No. 2, rather the said procedure finds our approval.

As to Issue-B:

57. The next issue revolves around the interpretation of section 4(l)(B)(b) of the Members’ Disqualification Act. It lays down in case of split, the ground of disqualification mentioned in section 3 of the said Act shall not apply; if the councillor, or as the case may be a member makes claim that he and any other member of the municipal party constitutes group representing a faction which has arisen as a result of split in his original party or aghadi or front and where the total strength of the councillors or, as the cage may be members (a) does not exceeds 20 and such group consists of one-half or; (b) exceeds 20 and such group consists of one-third of the councillors of such municipal party, then such councillor or councillors or member or members shall not be disqualified under sub-section (1) of section 3 on the grounds mentioned in sub-clauses (i) and (ii) of clause (a) of sub-section (1) of section 4 of the Members’ Disqualification Act. Clause (B) (b) of sub-section (1) of section 4 further prescribes that from the time of such split such faction shall be deemed to be a political party or aghadi or front to which it belongs for the purposes of sub-section (1) of section (3) and such faction shall be treated as his original political party or aghadi or front for the purposes of section 4. In other words, if the break-away group representing a faction answering qualifications laid down in section 4(1 )(B) which has arisen due to split in the original party then u/s 4(l)(B)(b) such faction or the group shall be deemed to be a political party or aghadi or front and shall be recognised as original political party for the purposes of section 3(1) of the Members’ Disqualification Act. This deeming fiction created by section 4(l)(B)(b) will have to be assigned its logical meaning. Any other interpretation will defeat the very purpose and philosophy of the legislation, namely, Members’ Disqualification Act. In this view of the matter, the contention advanced by Mr. Lohiya that five members of Indian National Congress, who have formed separate group, are still deemed to be the members of the Indian National Congress for all purposes of Bombay Provincial Municipal Corporation Act is devoid of any substance and the same is, therefore, rejected.

58. As already found by us while dealing with the preliminary objection raised by the respondent No. 3/caveator as to who should he recognised as Leader of Opposition is a question in the political thicket. We recorded out finding that the wisdom of Mayor/Mayoress is beyond judicial review and, consequently, the same is not justiciable, however, having heard the parties at length and considering clear-cut provision in explanation appended to section 19-1AA of the Bombay Provincial Corporation Act, we may also observe that the said provision is pari materia with the explanation appended to section 2 of the Leader of Opposition in Maharashtra Legislature Salaries and Allowances Act, 1978 and that of explanation to section 2 of the Salaries and Allowances of Leaders of Opposition of Parliament Act, 1977, which specifically makes it clear that the recognition of the Leader of Opposition by Mayor is final and conclusive. Similar provision is also to be found in the legislation governing the salaries of the Leader of Opposition of the House of Commons in a statute known as the Ministerial and Other Salaries Act, 1975. In that legislation, the Speaker’s decision on the identity of Leader of Opposition is made final and conclusive. In this view of the matter, considering the well recognised parliamentary practice, no further legal debate on this issue, in our opinion, is permissible.

59. In the result, the petition is dismissed. Rule is discharged with no order as to costs.

(2004) 3 ALLMR 151 : (2004) 5 BCR 847 : (2003) 5 MhLJ 522