# SHAILESH BANDU SWAMI AND ANOTHER v. DIPAK AND OTHERS

- **Citation:** [2018] 12 S.C.R. 118
- **Court:** Supreme Court of India
- **Decided:** 2018-09-25
- **Case number:** Civil Appeal No. 9970 of 2018
- **Bench:** Uday Umesh Lalit, Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shailesh-bandu-swami-and-another-v-dipak-and-others-32449
- **Pages:** 17

## Headnote

Maharashtra Municipal Corporation Act, 1949:
ss. 20, 21, 31A and 35A - Constitution of Standing Committee
and election of Chairman thereof - Propriety of - As per the
procedure contemplated u/s.20(3), the names of eight retiring
members including the Chairman were selected by draw of lots -
Thereafter, due to imposition of 'code of conduct' , next stage
contemplated by the Act i.e. appointment of eight new members was
not undertaken - After the 'code of conduct' ceased to be in
operation, by notice dated 6.6.2018 meeting was scheduled for
14.6.2018 for appointment of eight new members - Another notice
was issued on 12.6.2018 whereby meeting was called on 15.6.2018
for election of Chairman in terms of s.21(5) - Writ Petition was
filed challenging the notice dated 12.6.2018 and meetings dated
14.6.2018 and 15.6.2018 - High Court held that there was violation
of mandatory requirement of s. 20 and attempt was made to appoint
the Chairman by notice dated 12.6.2018, when the Standing
Committee was not yet constituted - On appeal, held: Mandates as
prescribed by various provisions of the Act were not adhered to
and were violated - Due to coming into operation of 'code of
conduct', steps could not be taken in strict compliance of prescribed
timeline - This irregularity led to a situation where urgent actions
were taken - Such irregular actions, in substance, followed the
mandate of the Act - Such actions have not resulted in deprivation
of any right under the statute - There was no reason for the High
Court to interfere in its writ jurisdiction.
Allowing the appeals, the Court
HELD: 1. The High Court has ruled that the Standing
Committee as was in existence before 02.05.2018 shall be the
one which must take all the steps and decisions. The decision of
 [2018] 12 S.C.R. 118
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the High Court is premised on non-compliance of the mandatory
provisions of the Maharashtra Municipal Corporations Act, 1949
and non-adherence to the timelines as prescribed under the Act.
It is clear from the record that the mandates as prescribed by
various provisions of the Act were not adhered to and were
violated. But the reasons that are forthcoming in the affidavits in
reply filed by the respondents are to the effect that there was
"code of conduct" issued by the Election Commission of India as
a result of which no appropriate steps could be taken.
Theoretically it was possible to initiate the steps in the first half
of April, 2018 itself but failure on that count, by itself does not
make the actions suspect. The "code of conduct" having been
brought in force from 20.04.2018, no steps were taken either to
identify 8 outgoing members or to have election in terms of or to
have the meeting of the Corporation in terms of Sub-Section (5)
of Section 20 before 30.04.2018. What happened thereafter was
certainly 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 had
crept in as a result of non adherence to the various steps which
were required to be taken in the month of April, 2018 led to a
situation where certain urgent actions were required to be taken.
Though said actions were in a way irregular, but in substance and
in real sense they followed the mandate and appropriate steps
were taken by the bodies in question and not by any entity or
agency which, in law, was not authorised. In this scenario, no
emergent directions were required or called for. The appointment
of new members of the Standing Committee went on proportional
representation theory and was purely by nomination coming from
the group leaders. Even if very same exercise is to be undertaken
now in terms of the orders passed by the High Court, it would
not be qualitatively different. It is not as if any person or a group
lost out or was deprived of any right under the statute. Thus,
there was no reason for the High Court to interfere in its writ
jurisdiction and issue direc

## Text

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SUPREME COURT REPORTS
[2018] 12 S.C.R.
 SHAILESH BANDU SWAMI AND ANOTHER
 v.
DIPAK AND OTHERS
(Civil Appeal No. 9970 of 2018)
SEPTEMBER 25, 2018
[UDAY UMESH LALIT AND ASHOK BHUSHAN, JJ.]
Maharashtra Municipal Corporation Act, 1949:
ss. 20, 21, 31A and 35A - Constitution of Standing Committee
and election of Chairman thereof - Propriety of - As per the
procedure contemplated u/s.20(3), the names of eight retiring
members including the Chairman were selected by draw of lots -
Thereafter, due to imposition of 'code of conduct' , next stage
contemplated by the Act i.e. appointment of eight new members was
not undertaken - After the 'code of conduct' ceased to be in
operation, by notice dated 6.6.2018 meeting was scheduled for
14.6.2018 for appointment of eight new members - Another notice
was issued on 12.6.2018 whereby meeting was called on 15.6.2018
for election of Chairman in terms of s.21(5) - Writ Petition was
filed challenging the notice dated 12.6.2018 and meetings dated
14.6.2018 and 15.6.2018 - High Court held that there was violation
of mandatory requirement of s. 20 and attempt was made to appoint
the Chairman by notice dated 12.6.2018, when the Standing
Committee was not yet constituted - On appeal, held: Mandates as
prescribed by various provisions of the Act were not adhered to
and were violated - Due to coming into operation of 'code of
conduct', steps could not be taken in strict compliance of prescribed
timeline - This irregularity led to a situation where urgent actions
were taken - Such irregular actions, in substance, followed the
mandate of the Act - Such actions have not resulted in deprivation
of any right under the statute - There was no reason for the High
Court to interfere in its writ jurisdiction.
Allowing the appeals, the Court
HELD: 1. The High Court has ruled that the Standing
Committee as was in existence before 02.05.2018 shall be the
one which must take all the steps and decisions. The decision of
 [2018] 12 S.C.R. 118
 118
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the High Court is premised on non-compliance of the mandatory
provisions of the Maharashtra Municipal Corporations Act, 1949
and non-adherence to the timelines as prescribed under the Act.
It is clear from the record that the mandates as prescribed by
various provisions of the Act were not adhered to and were
violated. But the reasons that are forthcoming in the affidavits in
reply filed by the respondents are to the effect that there was
"code of conduct" issued by the Election Commission of India as
a result of which no appropriate steps could be taken.
Theoretically it was possible to initiate the steps in the first half
of April, 2018 itself but failure on that count, by itself does not
make the actions suspect. The "code of conduct" having been
brought in force from 20.04.2018, no steps were taken either to
identify 8 outgoing members or to have election in terms of or to
have the meeting of the Corporation in terms of Sub-Section (5)
of Section 20 before 30.04.2018. What happened thereafter was
certainly 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 had
crept in as a result of non adherence to the various steps which
were required to be taken in the month of April, 2018 led to a
situation where certain urgent actions were required to be taken.
Though said actions were in a way irregular, but in substance and
in real sense they followed the mandate and appropriate steps
were taken by the bodies in question and not by any entity or
agency which, in law, was not authorised. In this scenario, no
emergent directions were required or called for. The appointment
of new members of the Standing Committee went on proportional
representation theory and was purely by nomination coming from
the group leaders. Even if very same exercise is to be undertaken
now in terms of the orders passed by the High Court, it would
not be qualitatively different. It is not as if any person or a group
lost out or was deprived of any right under the statute. Thus,
there was no reason for the High Court to interfere in its writ
jurisdiction 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.
SHAILESH BANDU SWAMI v. DIPAK
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[2018] 12 S.C.R.
Case Law Reference
 [2012] 14 SCR 862
 referred to
Para 11
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9970
of 2018.
From the Judgment and Order dated 05.09.2018 of the High
Court of Judicature of Bombay, Bench at Aurangabad in Writ Petition
No. 6897 of 2018
 WITH
Civil Appeal Nos. 9971-9972 of 2018.
B. H. Marlapalle, Sr. Adv., Shirish K. Deshpande, Mohit Gautam,
Ajit Waggh, Ms. Apoorva Shukla, Sudhanshu S. Choudhari, Ms. Surabhi
Guleria, Shakul R.Ghatole, Nishant R.Katneshwarkar, Chinmoy
Khaladkar, Dilip Annasaheb Taur, Amol V. Deshmukh, Ms. Heena
Khan, Shashibhushan P. Adgaonkar, Advs. for the appearing parties.
The Judgment of the Court was delivered by
UDAY UMESH LALIT, J. 1. Leave granted.
2. These appeals question the correctness of the Judgment and
Order dated 05.09.2018 passed by the High Court of Judicature at
Bombay, Bench at Aurangabad in Writ Petition No.6897 of 2018.
3. Matters pertaining to elections to Municipal Corporations in
Maharashtra including those relating to constitution of Standing
Committees of such Municipal Corporations are dealt with by Maharashtra
Municipal Corporations Act, 1949 (hereinafter referred to as the Act).
Provisions of Sections 20, 21, 31A and 35A which are relevant for the
present purposes are quoted for ready reference:-
"20. Constitution of Standing Committee.- (1) The Standing
Committee shall consist of sixteen councillors.
(2) The Corporation shall at its first meeting after general
elections appoint sixteen persons out of its own body to be
members of the Standing Committee.
(3) One-half of the members of the Standing Committee shall
retire every succeeding year at noon on the first day of the
month in which the first meeting of the Corporation mentioned
in sub-section (2) was held:
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Provided that all the members of the Standing Committee in
office when general elections are held shall retire from office on
the election of a new Committee under sub-section (2).
(4) The members who shall retire under sub-section (3) one year
after their election under sub-section (2) shall be selected by lot at
such time previous to the date for retirement specified in
sub-section (3) and in such manner as the Chairman of the Standing
Committee may determine, and in succeeding years the members
who shall retire under this section shall be those who have been
longest in office :
 Provided that, in the case of a member who has been
reappointed, the term of his office for the purposes of this
sub-section shall be computed from the date of his reappointment.
(5) The Corporation shall at its meeting held in the month
preceding the date of retirement specified in sub-section (3)
appoint fresh members of the Standing Committee to fill the
offices of those who are due to retire on the said date.
(6) Any Councillor who ceases to be a member of the Standing
Committee shall be eligible for reappointment.
21. Appointment of Chairman of Standing Committee.-
(1) The Standing Committee shall at its first meeting after its
appointment under sub-section (2) of section 20 and at its first
meeting in the same month in each succeeding year appoint one of
its own member to be the Chairman.
(2) The Chairman shall hold office until his successor has been
appointed under sub-section (1) but shall be eligible for
reappointment.
(3) Notwithstanding the provisions of sub-sections (1) and (2) the
Chairman shall vacate office as soon as he ceases to be a
member of the Committee.
(4) If any casual vacancy occurs in the office of the Chairman,
the Standing Committee shall, as soon as conveniently may be
after the occurrence of the vacancy, appoint one of its member to
fill such vacancy and every Chairman so appointed shall continue
in office so long only as the person in whose place he is appointed
would have held it if such vacancy had not occurred.
SHAILESH BANDU SWAMI v. DIPAK
[UDAY UMESH LALIT, J.]
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[2018] 12 S.C.R.
(5) If for any reason the Standing Committee does not appoint
the Chairman under sub-section (1) or (4), within a period of
thirty days from the date of its appointment under sub-section (2)
of section 20, or from the date following the date of retirement of
one-half of the members specified in sub-section (3) of that
section, or from the date on which a casual vacancy occurs in the
office of Chairman, as the case may be, the appointment of the
Chairman, after the expiry of the said period, shall be made by the
Corporation, from amongst the members of the Standing
Committee, at a special meeting called and held for the purpose
within fifteen days from the expiry of the said period of thirty
days. At such meeting, the question shall be decided by a majority
of votes of the Councillors present and voting and if there be an
equality of votes, the presiding authority shall have and exercise a
second or casting vote. Every Chairman so appointed, shall continue in office so long only as the Chairman appointed by the
Standing Committee would have continued in office.
... ... ...
31A. Appointment by nomination on Committees to be by
proportional representation.- (1) Notwithstanding anything
contained in this Act or the rules or bye-laws made thereunder, in
the case of the following Committees, except where it is provided
by this Act, that the appointment of a Councillor to any
Committee shall be by virtue of his holding any office,
appointment of Councillors to these Committees, whether in regular
or casual vacancies, shall be made by the Corporation by
nominating Councillors in accordance with the provisions of
sub-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, the
Corporation shall take into account the relative strength of the
recognized parties or registered parties or groups and nominate
members, as nearly as may be, in proportion to the strength of
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such parties or groups in the Corporation, after consulting the
Leader of the House, the Leader of Opposition and the leader of
each such party or group:
 Provided that, the relative strength of the recognized parties
or registered parties or groups or aghadi or front shall be
calculated by first dividing the total number of Councillors by the
total strength of members of the Committee. The number of
Councillors of the recognized parties or registered parties or groups
or aghadi or front shall be further divided by the quotient of this
division. The figures so arrived at shall be the relative strength of
the respective recognized parties or registered parties or groups
or aghadi or front. The seats shall be allotted to the recognized
parties or registered parties or groups or aghadi or front by first
considering the whole number of their respective relative strength
so ascertained. After allotting the seats in this manner, if one or
more seats remain to be allotted, the same shall be allotted one
each to the recognized parties or registered parties or groups or
aghadi or front in the descending order of the fraction number in
the respective relative strength, starting from the highest fraction
number in the relative strength, till all the seats are allotted:
 Provided further that, for the purpose of deciding the
relative strength of the recognized parties or registered parties or
groups under this Act, the recognized parties or registered parties
or groups, or elected Councillors not belonging to any such party
or group may, notwithstanding anything contained in the
Maharashtra Local Authority Members' Disqualification Act, 1986,
within a period of one month from the date of notification of
election results, form the aghadi or front and, on its registration,
the provisions of the said Act shall apply to the members of such
aghadi or front, as if it is a registered pre-poll aghadi or front.
(3) If any question arises as regards the number of Councillors to
be nominated on behalf of such party or group, the decision of the
Corporation shall be final.
...
...
...
35A. Exercise of powers and discharge of duties of any
Committee by Corporation.- If, any committee or special
SHAILESH BANDU SWAMI v. DIPAK
[UDAY UMESH LALIT, J.]
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[2018] 12 S.C.R.
committee under this Act is not constituted at any point of time, or
for any reason not in a position to exercise its powers or
discharge its duties under this Act, its powers shall be exercised
and its duties shall be discharged by the Corporation until such
committee is constituted or in a position to exercise its powers or
discharge its duties."
4. The aforesaid provisions thus contemplate:-
In terms of Sub-Section (2) of Section 20, the Corporation in its
first meeting after general elections is obliged to appoint 16 persons out
of its own body to be members of the Standing Committee. As per SubSection (1) of Section 21 soon after its constitution, the Standing
Committee is to appoint one of its own members as its Chairman. In
terms of Sub-Section (3) of Section 20, one-half of the members namely
8 out of 16 would retire every succeeding year on the first day of the
month in which the first meeting of the Corporation was held. SubSection (4) then contemplates a process under which the names of those
eight persons who would so retire in the succeeding year are to be
identified. Their names are to be selected by lot in such manner as the
Chairman of the Standing Committee may determine. Such selection
has to be undertaken previous to the date of retirement as specified in
Sub-Section (3). Naturally the action to be contemplated in terms of
Sub-Section (4) of Section 20 must be by the Chairman who was holding
office in terms of appointment under Section 21. In terms of sub-section
(5) of Section 20, it is the Corporation which must appoint fresh members
of the Standing Committee in the month preceding the date of retirement
as specified in sub-section (3).
According to Section 21, the appointment of a Chairman could be
in three contingencies. The first part of Sub-Section (1) of Section 21
deals with the first meeting of the Standing Committee wherein the
appointment of a Chairman has to be undertaken from amongst the
members of the Standing Committee. The second part of Sub-Section
21(1) contemplates similar such exercise to be undertaken in the
successive years as and when the constitution of the Standing Committee
would undergo change as a result of one-half of the body getting retired
and fresh elections to fill those vacancies taking place. The third
contingency is one which is spoken of in Sub-Section (4) of Section 21
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when any casual vacancies were to arise in the office of the Chairman.
Sub-Section (5) of Section 21 then contemplates a situation where no
appointment of the Chairman is undertaken in terms of both limbs of
Sub-Section (1) or under Sub-Section (4) of Section 21 and empowers
the Corporation to take appropriate steps in such cases.
Section 31A stipulates a salutary principle that appointments by
nomination on Committees of the Corporation must be undertaken in
accordance with proportional representation and not by pure majority in
the house.
Section 35A gives general power to the Corporation to discharge
the duties as exercisable by any Committee in case such Committee or
Sub-Committee is not constituted at any point of time or is not in a position
to exercise its powers or discharge its duties under the Act.
5. In the present case we are concerned with the constitution of
Standing Committee in respect of Latur City Municipal Corporation, Latur.
As per record1, Latur City Municipal Corporation has 18 Wards and 70
councillors are elected. In the general election held in the year 2017, 36
elected members were from Bharatiya Janta Party, 33 members were
from Indian National Congress Party and one member was from
Nationalist Congress Party. In terms of Section 31-A of the Act, 8
members from Bharatiya Janta party and 8 members from Nationalist
Congress Party were nominated to be the members of the Standing
Committee. The first meeting of the Standing Committee was held on
22.05.2017 in which by draw of lots, a member from Indian National
Congress Party was elected as Chairman of the Standing Committee.
The first meeting having been held in the month of May 2017, in terms
of Section 20(1) of the Act as stated hereinabove, the Chairman of the
Standing Committee was obliged to select by lot before the expiry of the
term namely first day of the month of the succeeding year that is to say
before 01.05.2018, names of 8 persons who would retire by rotation as
members of the Standing Committee.
6. It however appears that because of biennial elections of Local
Authorities constituency namely Latur-Osmanabad-Beed to elect
members of Maharashtra Legislative Council which were scheduled to
be held on 21.04.2018, the Election Commission of India had imposed
SHAILESH BANDU SWAMI v. DIPAK
[UDAY UMESH LALIT, J.]
1Para 5 of Writ Petition No. 6897 of 2018
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[2018] 12 S.C.R.
"code of conduct" with effect from 20.04.2018 which as a matter of
fact continued to be in operation till 31.05.20182. It is thus a matter of
record that no steps were taken by the Chairman of the Standing
Committee to identify those who would retire in terms of Section 20(3).
01.05.2018 being a holiday namely Maharashtra Day, a meeting of Latur
City Municipal Corporation was held on 02.05. 2018 pursuant to the
intimation dated 26.04.2018 issued by the District Collector instructing
the Commissioner of the Corporation to call such meeting. All the
members of the Standing Committee including the Chairman were
present. The minutes of the meeting indicate that in the presence of all
the members it was decided to identify names of the retiring members
by lots. Consequently 16 chits were kept in a pot and 8 chits were drawn
representing names of those 8 members who would retire in terms of
Section 20(3) of the Act. Those 8 members included the name of the
Chairman of the Standing Committee himself. However since the "code
of conduct" was still in operation the next stage contemplated by the
Act namely to have fresh appointment of 8 new incoming members was
not undertaken. The "code of conduct" was in operation till 31.05.2018
and the Municipal Corporation received an intimation after it ceased to
be in operation. Soon thereafter, on 06.06.2018 the Municipal Secretary
of the Corporation prepared Agenda and issued notices regarding meeting
scheduled to be held on 14.06.20183.
7. A notice was also issued on 12.06.2018 to all elected Councillors
that a meeting would be held on 15.06.2018 for election of the Chairman
of the Standing Committee in terms of Section 21(5) of the Act. Since
by 12.06.2018, names of incoming 8 members of the Standing Committee
were still not known, notices were sent to all the members of the
Corporation. In its meeting dated 14.06.2018, the respective political
parties through their block leaders submitted names of the Councillors
who would now be incoming or new members. True translation of the
proceedings of said meeting dated 14.06.2018 is as under:-
"The block leaders from the respective parties have submitted
the names of the corporation members, by nominations by
comparing as per their seats, for Standing Committee by certifying
representative as per the Section 31 A for 8 posts of Standing
Sr.
No
1.
2.
3.
4.
5.
6.
7.
8.

2 Para 20 of the counter affidavit in aforesaid writ petition by the Mayor, Latur City
Municipal Corporation
3 Para 22 of the counter affidavit in the aforesaid writ petition filed by Mayor, Latur
Municipal Corporation
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Committee vacated as per the Section 20(3) of the Maharashtra
Municipal Corporations Act 1949 therefore, the Mayor has
declared the names of following 8 members appointed as the
standing committee members.
 Sd/-
 (Pawar Suresh Nivrutti)
 Latur City Municipal Corporation, Latur."
8. The names of incoming members show that since 6 outgoing
members were from one political party, it had nominated 6 persons to be
part of the incoming group of 8 new members of Standing Committee.
Thus by virtue of such nomination, the balance as it existed earlier was
again maintained. Since the Standing Committee was now re-constituted,
in the subsequent meeting held on the next day i.e. 15.06.2018 the entire
body of 16 members of the Standing Committee then elected one of its
own members namely Shailesh Prakash Gojamgunde to be the Chairman
of the Standing Committee.
9. Soon thereafter, Writ Petition No.6897 of 2018 was filed by
two Councillors (one of them being Block Leader who had submitted
names of his party members to be part of the Standing Committee in the
Sr.
No.
Name
of
Hon.
Member
Name of Party
Name of Block leader
1.
Meena
Goroba
Lokhande
Indian
National
Congress
Adv.
Sul
Deepak
Gangadhar.
2.
Imran
Jabbar
Sayyad
Indian
National
Congress
Adv.
Sul
Deepak
Gangadhar.
3.
Kamble
Kailas
Vyankatrao
Indian
National
Congress
Adv.
Sul
Deepak
Gangadhar.
4.
Sabade
Vijaykumar
Hanmantrao
Indian
National
Congress
Adv.
Sul
Deepak
Gangadhar.
5.
Panchakshari
Pooja Subhash
Indian
National
Congress
Adv.
Sul
Deepak
Gangadhar.
6.
Sapana Pandurang
Kiswe
Indian
National
Congress
Adv.
Sul
Deepak
Gangadhar.
7.
Shailesh
Bandu
Swami
Bharatiya
Janata
Party
Adv.
Shailesh
Prakash Gojamgunde.
8.
Malu
Shital
Shivrprasad
Bharatiya
Janata
Party
Adv.
Shailesh
Prakash Gojamgunde.

SHAILESH BANDU SWAMI v. DIPAK
[UDAY UMESH LALIT, J.]
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meeting dated 14.06.2018) of Latur City Municipal Corporation submitting
inter alia that the notice issued on 12.06.2018 for holding the meeting to
elect the Chairman of the Standing Committee on 15.06.2018 was
inadequate and that before issuance of such notice there had to be a
Standing Committee in existence which, as a matter of fact, was not so.
The petition prayed inter alia for following reliefs:-
" A) Call for record and proceedings of the case.
B) Issue a writ of certiorari or any other appropriate in the nature
of order and direction to quash and set aside the election of
Chairman of Standing Committee dated 15.06.2018 being
contrary to the provisions of law.
C) Issue a writ of certiorari of any other appropriate in the nature
of order and direction to quash and set aside the appointment
of fresh members in meeting dated 14.06.2018 being contrary
to the provisions of law.
D) Pending hearing and final disposal of this writ petition, kindly
grant stay to the election of Chairman of Standing Committee
dated 15.06.2018 being contrary to the provisions of law.
E) Pending hearing and final disposal of this writ petition, kindly
be restrained the Chairman of Standing Committee from taking
any policy decision.
F) By allowing this Writ Petition, may kindly be disqualified the
respondent No.6 from the post of mayor as he has misused his
post and power.
G) Ad-interim relief be granted in terms of prayer clause "D"
and "E".
Thus, the challenge was to the meetings held on 14.06.2018 and
15.06.2018. However, no challenge was raised in respect of meeting
held on 02.05.2018 wherein names of 8 outgoing members were
identified. Though the election held on 14.06.2018 to the Standing
Committee was put in challenge, none of the Councillors appointed as
new members of the Standing Committee in its meeting dated 14.06.2018
was made party to the petition.
10. Affidavits in reply opposing the petition were filed by respondent
No.6, namely, the Mayor of the Latur City Municipal Corporation and
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by respondent No.7 Shailesh Prakash Gojamgunde, Chairman of the
Standing Committee elected on 15.06.2018.
11. After hearing learned counsel, the High Court by its judgment
and order dated 05.09.2018 allowed said Writ Petition. It was observed
by the High Court that as on 12.06.2018 when notice was issued to hold
a meeting on 15.06.2018 the Standing Committee consisting of 16
members had not come into existence; that mandatory requirements of
Section 20 of the Act were violated and an attempt was made to appoint
Chairman of the Standing Committee by the Corporation under Section
21(5) of the Act when the Standing Committee consisting of 16 members
was not yet constituted. Relying on the judgment of this Court in Prithipal
Singh and Ors. vs. State of Punjab and anr.4 to the effect that while
dealing with unprecedented cases the court has to innovate and at times
pass unconventional orders, the High Court passed certain directions in
paragraph 43 of its judgment. Out of 11 directions so passed, we are
concerned with first 7 directions which pertain to the present matters.
Rest of the directions are in the nature of guidelines with a view to
ensure compliance of various provisions of the Act. Said first 7 directions
as spelt out in paragraph no.43 are extracted hereunder:
"43. In the light of the above, the present Writ Petition is allowed
and disposed of as follows:
(i) The election of respondent No.7 as Chairman of the Standing
Committee of the respondent Municipal Corporation in the
special meeting held on 15.6.2018, is quashed and set aside as
being contrary to the provisions of the Maharashtra Municipal
Corporations Act, 1949.
(ii) It is held that, the appointment of fresh 8 members on the
Standing Committee in the meeting dated 14.6.2018 is illegal
and hence, the same is also quashed and set aside.
(iii) The Standing Committee consisting of 16 members constituted
in the meeting dated 22.05.2017 immediately after general
elections of the Corporation held on 19.04.2017 and its
Chairman elected on 19.06.2017 shall take steps for selecting
8 of its members for retirement from the Standing Committee.
This step shall be taken by the said Standing Committee and
its Chairman on 14th September, 2018.
SHAILESH BANDU SWAMI v. DIPAK
[UDAY UMESH LALIT, J.]
4 (2012) 1 SCC 10
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(iv) The said Standing Committee shall then hold a meeting on
18.09.2018 for appointing fresh 8 members on the Standing
Committee. This would enable any member who has been
selected for being retired from the Standing Committee to be
eligible for reappointment.
(v) The 8 members selected for retirement shall stand retired on
19.09.2018 and the fresh 8 members shall become members
of the newly constituted Standing Committee on the same day.
(vi) Thereafter, such reconstituted Standing Committee shall in its
first meeting to be held in the month of September 2018, elect
its Chairman. Accordingly, there would be a smooth transition
from the erstwhile Standing Committee to such newly
constituted Standing Committee. If for some reason the
Standing Committee is unable to appoint its Chairman within
30 days of 19.09.2018, the Corporation shall appoint the
Chairman in a special meeting under Section 21(5) of the said
Act, to be held within 15 days from expiry of the said period of
30 days.
(vii) The reconstituted Standing Committee and its Chairman
appointed in terms of directions given hereinabove shall remain
in existence for the remaining part of the one year tenure of
the Standing Committee.
 ...
...
..."
12. Thus, the High Court has ruled that the Standing Committee
as was in existence before 02.05.2018 shall be the one which must take
all the steps and decisions. It must first, through its Chairman take
appropriate steps for selecting names of 8 members for retirement.
Thereafter, the Standing Committee would hold a meeting for appointing
8 new members on the Standing Committee. Such reconstituted Standing
Committee shall, thereafter, in a meeting elect its Chairman. The Standing
Committee so reconstituted with its Chairman shall then continue to be
in existence for the remaining part of the tenure of one year.
13. The decision of the High Court is under challenge in present
matters. The first matter was filed by two councillors who are also
members of the Standing Committee, the first petitioner being a councillor
who was appointed as a member of the Standing Committee for the first
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time in the meeting dated 14.06.2018. Since both these petitioners were
not parties in the Writ Petition, they approached this Court with an
application seeking permission to challenge the judgment under appeal.
The second petition was filed by original respondent No.7. Both these
petitions came up before this Court on 17.09.2018, on which date the
learned counsel for the writ petitioners also appeared on caveat.
Considering the nature of urgency, where certain directions passed by
the High Court were to come into effect on 18th and 19th September,
2018, the matter was immediately taken up for hearing. After conclusion
of 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 instructions
of Mr. Dilip Annasaheb Taur, Adv. appearing on caveat has shown
his readiness to go ahead with the final submissions at this stage
itself, notice made returnable forthwith. We issued notice to Mr.
Nishant R. Katneshwarkar, Adv. appearing for the State of
Maharashtra as well, who has appeared for the State.
Having heard learned counsel for the parties finally and
considered their submissions, we direct (a) pending consideration,
the judgment and order passed by the High Court shall remain
stayed (b) the parties shall file their written submissions within
three days from today (c) the matter will be posted for
pronouncement of order next week."
14. We have heard learned counsel for the parties and gone through
the entire matter and the submissions on record.
15. The decision of the High Court is premised on non-compliance
of the mandatory provisions of the Act and non-adherence to the timelines
as prescribed under the Act. According to the provisions of Sections 20
and 21 of the Act following stages should have been undertaken in the
present case:
a) Names of one-half of the members of the Standing Committee
who would be retiring on the first day of May of 2018 ought to
have been identified. Exercise to identify such persons ought
to have been undertaken well in advance.
SHAILESH BANDU SWAMI v. DIPAK
[UDAY UMESH LALIT, J.]
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b) Any councillor who as a result of such exercise ceased to be
a member of the Standing Committee would be eligible for
reappointment in terms of Sub-Section (6) of Section 20 and
as such adequate chance or opportunity seeking an
'appointment' should have been afforded.
c) The Corporation would then appoint fresh members of the
Standing Committee to fill the offices of those who "are due to
retire" in terms Sub-Section (5) of Section 20 of the Act. Such
meeting 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.
d) While making such appointments the Corporation would be
guided by principles laid down in Section 31A of the Act namely
those relating to proportional representation.
 16. It is clear from the record that the mandates as prescribed by
various provisions of the Act were not adhered to and were violated.
But the reasons that are forthcoming in the affidavits in reply filed by the
respondents are to the effect that there was "code of conduct" issued
by the Election Commission of India as a result of which no appropriate
steps could be taken. Theoretically it was possible to initiate the steps in
the first half of April, 2018 itself but failure on that count, by itself does
not make the actions suspect. The "code of conduct" having been brought
in force from 20.04.2018, no steps were taken either to identify 8 outgoing
members or to have election in terms of or to have the meeting of the
Corporation in terms of Sub-Section (5) of Section 20 before 30.04.2018.
What happened thereafter was certainly not in strict compliance of the
timelines prescribed. In the circumstances, there would be two courses
that are open to be considered. (A) Upset all actions and relegate the
issues to be dealt with afresh at the appropriate levels in accordance
with law. (B) Consider whether the actions taken by the concerned
authorities are only irregular or blatantly illegal. If there is a mere
irregularity which has not caused prejudice to anyone, a call can certainly
be taken to condone such irregularity rather than nullifying all actions.
17. The High Court has adopted the first course and issued the
aforementioned directions. Its direction No.(iv) is not quite correct. It
is the Corporation and not the Standing Committee which is to hold
meeting as per Section 20(5) of the Act for appointing fresh eight
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members. Be that as it may, the question is whether the first course or
the second course is the most appropriate one in the present matter.
18. In the present case there was no challenge to the meeting
dated 02.05.2018 which identified names of eight members who would
retire, which included the Chairman of the Standing Committee himself.
Under the orders of the High Court, despite these developments, the
same Standing Committee is to be deemed to be in existence which
must initiate all the actions de novo. In a given situation such extraordinary
directions may be justified. The question, however, is whether such
directions were justified in the present case. On 02.05.2018, names of
eight outgoing persons were identified but nothing further was done as
at that time, the "code of conduct" was still in operation. Appropriate
steps were taken only after the "code of conduct" ceased to be in
operation and a meeting was called on 14.06.2018 to appoint new set of
eight members to be part of the Standing Committee. Going by SubSection (5) of Section 20 such a meeting had to be held by the Corporation
and was rightly undertaken. In this meeting the proportional representation
was maintained and those persons whose names were suggested by the
group leaders of the respective political parties, were appointed as new
members of the Standing Committee.
It is true that the Chairman had to be selected by the newly
constituted Standing Committee. It appears that in order to expedite the
matters, the meeting was scheduled to be held on the next date that is on
15.06.2018. This meeting was called pursuant to agenda circulated on
12.06.2018. It is again true that as on that date the reconstituted Standing
Committee was not in existence. However, since the Standing Committee
would be of the Councillors of the Corporation itself, and since the identity
of eight new members who would now become part of the Standing
Committee was not yet known on 12.06.2018, notices were issued to all
the Councillors of the Corporation. The record then shows that item 10
on the agenda for the special meeting dated 15.06.2018 was for election
of the Chairman. It is further clear that the meeting started at 11.00
a.m. whereafter nominations for the post of Chairman were accepted
and various stages were thereafter conducted and the election of the
Chairman was done by 16 members of the Standing Committee. It is
not as if that the election was undertaken by an entity other than members
of the Standing Committee. The observations of the High Court in that
behalf are not correct.
SHAILESH BANDU SWAMI v. DIPAK
[UDAY UMESH LALIT, J.]
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19. The circumstances thus show that the irregularity that had
crept in as a result of non adherence to the various steps which were
required to be taken in the month of April, 2018 led to a situation where
certain urgent actions were required to be taken. Though said actions
were in a way irregular but in substance and in real sense they followed
the mandate and the appropriate steps were taken by the bodies in
question and not by any entity or agency which, in law, was not authorised.
In this scenario, in our considered view, no emergent directions were
required or called for. The appointment of new members of the Standing
Committee went on proportional representation theory and was purely
by nomination coming from the group leaders. Even if very same exercise
is to be undertaken now in terms of the orders passed by the High Court
it would not be qualitatively different. It is not as if any person or a group
lost out or was deprived of any right under the statute.
20. We thus find that there was no reason for the High Court to
interfere in its writ jurisdiction and issue directions as referred to above.
We, therefore, allow these appeals, set aside the judgment and order
under appeal and dismiss Writ Petition No.6897 of 2018. No costs.
Kalpana K. Tripathy
 Appeals allowed.