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Monday, October 26, 2020

Bombay HC dismisses plea by BJP leader Prabhakar Shinde seeking to be appointed as LoP in BMC

A division bench of Justice S J Kathawalla and Justice Madhav J Jamdar pronounced the judgement on a plea filed by Shinde through senior counsel Birendra Saraf and advocate Hitesh Jain challenging the Mayor's decision.

Written by Omkar Gokhale | Mumbai | Updated: September 21, 2020 2:53:19 pm
Prabhakar Tukaram Shinde, BJP corporator and party leader in Brihanmumbai Municipal Corporation (BMC). (Photo: Facebook @ Prabhakar Shinde)

The Bombay High Court on Monday dismissed a plea by Prabhakar Tukaram Shinde, BJP corporator and party leader in Brihanmumbai Municipal Corporation (BMC), seeking to be recognised as opposition leader in the civic body. With this, Congress’s Ravi Raja will remain Leader of Opposition (LoP) in BMC.

A division bench of Justice S J Kathawalla and Justice Madhav J Jamdar pronounced the judgement on a plea filed by Shinde through senior counsel Birendra Saraf and advocate Hitesh Jain challenging the Mayor’s decision.

The plea had claimed that the Mayor ‘failed to recognise him’ as leader of the second largest party in civic body and did not appoint him as LoP in place of Raja, who is a leader of the third largest party.

On February 28, BJP Mumbai president Mangal Prabhat Lodha requested Mayor Kishori Pednekar to appoint Shinde as leader of opposition. As per 2017 election results, the Shiv Sena, a ruling party had 84 members of its own, while BJP had 82, Congress had 31 and Nationalist Congress Party (NCP) 9.

On March 5, this year, the Mayor rejected Lodha’s request, which prompted Shinde to move a plea before the HC in June, this year. Shinde said that under section 37-1A Mumbai Municipal Corporation (MMC) Act that provides appointment of leader of opposition, she was obliged to assess who would be eligible for LoP based on numerical strength of the party and challenged her decision.

Shinde said that it is only because the BJP in 2017 was not interested in occupying the post, that Raja was appointed as the LoP in the BMC. As a result of the recent change in leadership of the BJP, it has now demanded that their leader should occupy the post, the plea said.

Saraf submitted, “The decision of a Mayor is not beyond judicial review and she has proceeded on an ex-facie erroneous understanding and application of the legal position which has led to the perverse and illegal decision.”

The plea stated that if the leader of the largest opposition party is willing to take up the responsibility, the law does not deny him the same, merely because he had initially expressed unwillingness to do so for various considerations, and sought Shinde to be appointed as leader of opposition.

Senior advocate Ravi Kadam for Mayor Kishori Pednekar submitted that the law did not contemplate that an important post would be occupied depending on the ‘whims of any person or party’.

Kadam said that BJP has passed over its right to the post of LoP and by following the due process of law, Congress is performing the role of the LoP since the last three years. Merely because the BJP wants to more actively oppose the ruling party, it is not entitled to stake a claim to a post which is not vacant, Kadam argued.

The Court, in June, this year had asked Shinde to make Raja a party to the case. Senior Counsel Aspi Chinoy and advocate Joel Carlos for Raja opposed the plea submitted that the Mayor’s decision was as per law and the BJP, which had refused to accept the post in 2017, cannot seek it now merely on the ground that it has changed its mind or an earlier decision to refuse the post. Raja Sought dismissal of the plea.

After hearing submissions and perusing various judgements, the Court accepted respondents’ arguments and Justice Kathawalla in 38-paged judgement noted,

“A mere volte-face or change of heart or decision to increase one’s extent of participation whilst in opposition, cannot justify the removal of an incumbent Leader of Opposition, who was otherwise duly appointed in accordance with law (and as a result of the BJP’s express refusal to accept the post).”

The Court said that the Mayor’s decision was ‘just’ and ‘proper’ and therefore no interference was required and dismissed Shinde’s plea.

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