SHAILESH BANDU SWAMI AND ANOTHER versus DIPAK AND OTHERS

Citation: [2018] 12 S.C.R. 118 · Decided: 25-09-2018 · Supreme Court of India · Bench: UDAY UMESH LALIT · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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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
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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

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