Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 2080 of 2015, Judgment Date: Feb 20, 2015

In a democracy, a leader is not imposed;  leader  is  elected.  Once
the birth of a leader in a group is by way of election  by  the  group,  the
group leader thus elected cannot be  replaced  otherwise  than  through  the
very same process of the election in the group, in the absence of any  rules
to the contra. No doubt, the Nationalist Congress Party has  17  members  in
the aghadi (group). That does not mean that the  said  party  can  impose  a
group leader in the aghadi. Imposition of a group leader otherwise  than  by
the democratic process cuts at the roots of the democracy and  certainly  it
is in violation of the Rules. It is always open to  the  original  political
parties to have their respective leaders in the aghadi. However, as  far  as
group leader is concerned, he has to be elected by the aghadi (group).
The appeal hence is dismissed.  

                        IN THE SUPREME COURT OF INDIA

                       CIVIL  APPELLATE  JURISDICTION

                 CIVIL APPEAL NO.     2080          OF 2015
                  (Arising from S.L.P. (C) No. 26218/2014)


Sunil Haribhau Kale                                    ... Appellant (s)

                                   Versus

Avinash Gulabrao Mardikar and others                  ... Respondent (s)


                               J U D G M E N T

KURIAN, J.:


Leave granted.

Election to the Amravati Municipal Corporation was held  on  16.02.2012.  Of
the total 87 Councillors, the Nationalist Congress  Party  with  17,  Muslim
League with 2, R.P.I. with 1, Samajwadi Party  with  1  and  2  Independents
formed an aghadi (group) and elected the first  respondent  as  their  group
leader (Gat Neta). On 06.03.2012, the 23  members  submitted  the  following
application to the Divisional Commissioner, Amravati  for  approval  of  the
alliance and registration of the group leader:
"... The newly elected Corporators of the Nationalist Congress Party Nos.  1
to 17 along with other newly  elected  Corporators,  totaling  to  23,  have
unanimously elected Shri Avinash Gulabrao Mardikar as a Group Leader of  the
Nationalist Congress Party.  The List of the names of the  Corporators  from
the Nationalist Congress  Party,  in  Form  -  I,  under  Rule  31(1)(A)  is
submitted herewith.  Similarly, the affidavit duly signed by the  honourable
Corporators, in Form - III, under Rule 4(1) is also annexed herewith.

      The strength of our Alliance is the  Corporators  of  the  Nationalist
Congress Party numbering 1 to 17 and that  of  6  others,  totaling  to  23.
Hence, it is requested to kindly register and approve  this  Alliance  as  a
"Nationalist Congress Party Front. ..."
                                                         (Emphasis supplied)

The affidavit filed by the members of the group, reads as follows:
"...We,  all  the  newly  elected  members   of   the   Amravati   Municipal
Corporation,  Amravati,  do  hereby  inform  you  that,   we   have   formed
Nationalist Congress Party Front; that we have  the  total  strength  of  23
members; that we have unanimously elected Shri  Avinash  Gulabrao  Mardikar,
the newly elected member from Ward No.26(B), Benoda Ward as a  Group  Leader
of our Nationalist Congress Party Front; that the  said  Group  Leader  Shri
Avinash Gulabrao Mardikar has hereby given his consent to work as  a  Leader
of our group; and that we do hereby further undertake to bind  ourselves  to
elect, vote and support the members proposed  and  nominated  by  our  group
leader Shri  Avinash  Gulabrao  Mardikar  as  a  Mayor,  Deputy  Mayor,  the
President of the Standing Committee, and the Members and the  Chair  Persons
of all the Committees; that we will not remain absent at  the  time  of  the
voting of the said election; and that we are well aware  of  the  fact  that
under the provisions of Rule 3 of the  Maharashtra  Local  Authority  Member
Disqualification Act, it is binding upon us to obey the  orders  that  would
be passed by our group leader Shri Avinash Gulabrao Mardikar as regards  the
proceedings of the assembly of the Amravati  Municipal  Council,  otherwise,
the action can be taken against us under the provision of Rule 3(5)  of  the
said Act for the infringement of such orders. ..."

                                                         (Emphasis supplied)


The request was granted and,  by  order  dated  11.04.2012,  the  group  was
recognized and the first respondent was registered as the group leader.
Seeking a change of the leader, the General  Secretary  of  the  Nationalist
Congress Party,  on  22.03.2014,  addressed  the  following  letter  to  the
Divisional Commissioner, relevant port of which reads as follows:
"Subject:-  Nomination of the Group Leader of the  alliance  of  Nationalist
Congress Party in Amravati Municipal Corporation, Amravati.

Res / Sir,

      The Honourable Shri Bhashkarraoji Jadhao, the  President,  Maharashtra
Regional Nationalist Congress Party has been pleased to instruct  that  Shri
Sunil Haribhau Kale be nominated as a Group Leader of the  alliance  of  the
Nationalist  Congress  Party  (NCP)  in  Amravati   Municipal   Corporation,
Amravati; and that the group under  his  leadership  only  be  approved  of.
Hence, it is requested to take the necessary action, accordingly.

      Thanking you,
                                                            Yours sincerely,
                                                                        Sd/-
                                                           Shivajirao Garje.
To,
The Divisional Commissioner,
Amravati Division, Amravati."
                                                         (Emphasis supplied)

The Divisional Commissioner,  by  order  dated  16.06.2014,  registered  the
appellant herein as the group leader based on the letter  of  the  Secretary
of the Nationalist Congress Party. The relevant portion of the  order  reads
as follows:
"... It appears that from the letter of Shri  Shivajirao  Garje  appointment
of Shri Sunil Kale has been made as Group Leader of the  Party  in  Amravati
Municipal Corporation.  There is a prevailing  system  of  appointing  group
leaders/parted on the  elected  groups  of  all  political  parties  by  the
political parties themselves.  Under these circumstances giving approval  to
the appointment of Shri Sunil Kale on the post of Group  Leader  appears  to
be correct.

Hence by way of rejecting the application of  the  applicant  Name  of  Shri
Sunil Haribhau Kale is being  registered  as  Group  Leader  of  Rashtravadi
Congress Party in Amravati Municipal Corporation. ..."
                                                         (Emphasis supplied)


The first respondent challenged the order before  the  High  Court.  By  the
impugned  judgment  dated  22.08.2014,  the  High  Court  allowed  the  Writ
Petition and quashed the order. The  High  Court  took  the  view  that  the
General Secretary of  one  of  the  political  parties  forming  the  aghadi
(group), was not competent to make a request to the Divisional  Commissioner
to register change of the group leader and that the Divisional  Commissioner
acted wholly without jurisdiction in registering the change as requested  by
one of the political parties.

Aggrieved, the appeal.

Heard the learned counsels appearing on both sides.

Section 2(a) defining "aghadi", Section 2(i) defining "municipal party"  and
Section 2(j) defining "original political party", of the  Maharashtra  Local
Authority Members' Disqualification Act, 1986 (hereinafter  referred  to  as
'the Act')  read as follows:
"2(a) "aghadi"  or  "front"  means  a  group  of  persons  who  have  formed
themselves into a party  for  the  purpose  of  setting  up  candidates  for
election to a local authority;"

                 xxx                    xxx              xxx

"2(i) "municipal party", in relation to  the  councillor  belonging  to  any
political party or aghadi or front in accordance  with  the  Explanation  to
Section 3,   means, -
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;
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;"

"2(j)       "original political party", in relation to  a  councillor  or  a
member, means the political party to which he belongs for  the  purposes  of
sub-section (1) of section 3;"
                                                         (Emphasis supplied)


Rule 2(b-1) of the  Maharashtra  Local  Authority  Members  Disqualification
Rules, 1987 (hereinafter referred to as 'the Rules') defines a 'leader to  a
municipal party (group leader/Gat Neta), relevant portion of which reads  as
follows:
"2(b) "Form" means the form appended to these rules;
[b-1](i) "Leader in relation  to  a  municipal  party"  means  a  Councillor
chosen by each  political  party,  or  aghadi  or  front  in  the  Municipal
Corporation or as the case may be in the Municipal  Council  as  its  leader
and includes  any  other  Councillor  of  such  party  or  aghadi  or  front
authorized by it to act in the absence of the leader as,  or  discharge  the
functions of the leader of such party or aghadi or front  for  the  purposes
of these rules."
                                                         (Emphasis supplied)

The definition of  the  term  'leader'  very  clearly  shows  that  where  a
municipal party is an aghadi, its leader has to be chosen by the  aghadi  or
front. Necessarily, any change in the leader of the municipal  party  is  to
be effected by the aghadi and not by any outsider. Once  the  Rules  provide
for the election of the group leader, it has to be done in that manner  only
and not in any other manner, even when there is change of  the  leader.  The
change of leader has to be in the same democratic process of  induction,  in
the absence of any other method prescribed under the Rules concerned.

Once an aghadi (group) is formed  and  duly  recognized  by  the  Divisional
Commissioner, it becomes a municipal party in terms of Section 2(i)  of  the
Act. Once original political parties form a municipal party  by  way  of  an
aghadi, for all purposes, the group leader is chosen by the municipal  party
(aghadi) only.  Rules  do  not  provide  for  nomination  of  group  leader.
Similarly, the group leader of the aghadi can be changed only by  the  group
and not by one of the political parties, big  or  small,  belonging  to  the
aghadi. In a democracy, a leader is not imposed;  leader  is  elected.  Once
the birth of a leader in a group is by way of election  by  the  group,  the
group leader thus elected cannot be  replaced  otherwise  than  through  the
very same process of the election in the group, in the absence of any  rules
to the contra. No doubt, the Nationalist Congress Party has  17  members  in
the aghadi (group). That does not mean that the  said  party  can  impose  a
group leader in the aghadi. Imposition of a group leader otherwise  than  by
the democratic process cuts at the roots of the democracy and  certainly  it
is in violation of the Rules. It is always open to  the  original  political
parties to have their respective leaders in the aghadi. However, as  far  as
group leader is concerned, he has to be elected by the aghadi (group).

Thus, although for a few other different reasons as well, apart  from  those
sounded by the High Court in the impugned order,  we  agree  with  the  view
taken by the High Court. The appeal hence is dismissed.  The  interim  order
dated 05.09.2014 is vacated.

There shall be no order as to costs.

                                    ..........................J.
                                             (M.Y. EQBAL)

                                  ..........................J.
                                          (KURIAN JOSEPH)
New Delhi;
February 20, 2015.








ITEM NO.50               COURT NO.11               SECTION IX
[for judgment]

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C)  No(s).  26218/2014

(Arising out of impugned final judgment and order dated 22/08/2014 in WP
No. 2772/2014 passed by the High Court Of Bombay)

SUNIL HARIBHAU KALE                              Petitioner(s)

                                VERSUS

AVINASH GULABRAO MARDIKAR AND ORS                Respondent(s)

Date : 20/02/2015 This petition was called on for judgment today.

For Petitioner(s)      Mr. Kishor Lambat, Adv.
                       Mr. Milind Vashanav, Adv. for
                    M/s. Lambat & Associates

For Respondent(s)      Mr. Aniruddha P. Mayee,Adv.
                       Mr. Charudatta Mahindrakar, Adv.
                       Mr. A.S. Raja, Adv.

                       Mr. Suhas Kadam, Adv. for
                    M/s Lemax Lawyers & Co.

                       Mr. Satyajit A. Desai, Adv.
                       Ms. Anagha S. Desai, Adv.
                       Mr. Akash Kakade, Adv.

            Hon'ble Mr. Justice Kurian Joseph pronounced   the  judgment  of
the Bench comprising Hon'ble Mr. Justice M.Y. Eqbal and His Lordship.
            Leave granted.
            Appeal is dismissed in terms of signed reportable  judgment.  No
costs.

(INDU POKHRIYAL)                           (PARDEEP KUMAR)
  COURT MASTER                                    AR-cum-PS
      [SIGNED REPORTABLE JUDGMENT IS PLACED ON THE FILE]



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