While setting aside an order of the state government suspending five nominated councillors of the Bhiwandi-Nizampur City Municipal Corporation, the Bombay High Court recently observed that the state need not intervene “only to oblige a political party in power”.
The court was hearing a petition filed by nominated councillors Siddheshwar Moglappa, Rahul Khatke, Mohammad Sajid Ashfaq Khan, Devanand Thale and Harshad Pramod Patil, challenging their suspension order dated November 27, 2018.
On July 12, 2018, the municipal corporation had passed a resolution to appoint the five petitioners — belonging to the Congress — as nominated councillors exclusively on the basis of the social welfare work they had done. However, following a complaint by a BJP councillor, the government suspended them as their appointment was contrary to Rule 4 of the Maharashtra Municipal Corporations Act, which states that councillors should be appointed form different categories like architects, lawyers, retired bureaucrats, social workers and others.
The government informed the court that once these councillors have been nominated contrary to rules, then, Section 451 of the Mumbai Municipal Corporation Act empowers it to take the appropriate steps, including suspension of the resolution.
According to Section 451, the state government can suspend or prohibit the execution of a resolution passed the municipality if it is of the opinion that it could lead to a law and order situation, or was against the larger public interest or could hurt the financial interest of the municipality.
A division bench of Justice S C Dharmadhikari and B P Colabawalla noted: “The impugned order proceeds to state that the nomination of the municipal councillors is suspended, but the state government has not recorded any specific reason. It has only stated in the impugned order that the circumstances brought on record by the municipal corporation denote that the rules enabling the nomination have not been followed.”
The bench added, “To our mind, therefore, neither the order subscribes to Section 451(1) of the MMC Act nor in the facts and circumstances peculiar to this case, the state government could have entertained the complaint and obliged the elected councillor, who is a member of the Bhartiya Janata Party.”
Among other things, Section 451(1) states that if the state government is of opinion that the execution of any resolution or order of the corporation is in contravention of or in excess of the powers conferred by or under this Act, it may suspend the execution of such resolution.
Observing that the BJP and its ally Shiv Sena are the parties in power in the state, the court said: “The state government has exercised the powers under Section 451(1) at the instance of a person, who is a elected councillor belonging to the Bhartiya Janata Party.”
Maintaining that this was not an occasion for the government to intervene in a “pure political dispute”, the bench said: “The intervention by the state government not only contravenes the mandate of Section 451, but also interferes with a democratic process.”
The court order noted, “There was no occasion for the state government to intervene in such a process after it has run its course completely and only to oblige a political opponent of these nominated councillors. In such circumstances, we are of the firm opinion that the impugned order is ex-facie illegal, arbitrary and deserves to be set aside.”