Holding

Procedural irregularities that do not cause prejudice do not invalidate actions; the appointments and election of the Chairman were valid despite non‑compliance with the prescribed timeline.

Summary

The case concerned the constitution of the Standing Committee of Latur City Municipal Corporation and the election of its Chairman under the Maharashtra Municipal Corporations Act, 1949. Because of an Election Commission "code of conduct" the corporation could not complete the statutory steps for retiring eight members and appointing new ones within the prescribed April 2018 timeline. Consequently, meetings were held on 14 and 15 June 2018 to appoint new members and elect a Chairman, which the High Court held violative of Sections 20 and 21 and quashed. The Supreme Court examined whether these procedural lapses amounted to illegality or merely irregularity that did not prejudice any party. It held that, although the timelines were not strictly followed, the substantive requirements of the Act were fulfilled and no rights were infringed, so the High Court’s directions were unwarranted. Accordingly, the appeals were allowed, the High Court judgment set aside, and the writ petition dismissed.

Issues considered

The appointment of eight new members to the Standing Committee and the election of its Chairman complied with the mandatory provisions of Sections 20 and 21 of the Maharashtra Municipal Corporations Act, 1949.
Whether the Election Commission's code of conduct justified deviation from the statutory timelines.
Whether the High Court was justified in quashing the appointments and directing a fresh reconstitution of the Standing Committee.
Whether the procedural irregularities, if any, amounted to illegality warranting nullification of the actions.

Legislation cited

Maharashtra Local Authority Members Disqualification Act, 1986
Maharashtra Municipal Corporations Act, 1949s. 20, s. 21, s. 31A, s. 35A

Subjects

Municipal corporationStanding CommitteeElection of ChairmanCode of conductProcedural irregularityStatutory complianceWrit jurisdictionMaharashtra Municipal Corporations Act

Judgment

118 [2018]REPORTS
SUPREME COURT 12 S.C.R. 118 [2018] 12 S.C.R.

A SHAILESH BANDU SWAMI AND ANOTHER
v.
DIPAK AND OTHERS
(Civil Appeal No. 9970 of 2018)
B 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
C 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
D
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
E 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
F
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
G 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
H
118
SHAILESH BANDU SWAMI v. DIPAK 119

the High Court is premised on non-compliance of the mandatory A
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
B
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 C
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.
D
[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 E
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 F
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 G
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.

H
120 SUPREME COURT REPORTS [2018] 12 S.C.R.

A Case Law Reference
[2012] 14 SCR 862 referred to Para 11
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9970
of 2018.
B 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.
C
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.
D
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
E 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).
F 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
G 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
H in sub-section (2) was held:
SHAILESH BANDU SWAMI v. DIPAK 121
[UDAY UMESH LALIT, J.]

Provided that all the members of the Standing Committee in A
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 B
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 C
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 D
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 E
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 F
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, G
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. H
122 SUPREME COURT REPORTS [2018] 12 S.C.R.

A (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
B
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
C 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 con-
tinue in office so long only as the Chairman appointed by the
Standing Committee would have continued in office.
D
………
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
E 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
F sub-section(2):-
(a) Standing Committee;
(b) Transport Committee;
(c) Any special Committee appointed under Section 30;
G (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
H
SHAILESH BANDU SWAMI v. DIPAK 123
[UDAY UMESH LALIT, J.]

such parties or groups in the Corporation, after consulting the A
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 B
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 C
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 D
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 E
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, F
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. G
… … …
35A. Exercise of powers and discharge of duties of any
Committee by Corporation.- If, any committee or special
H
124 SUPREME COURT REPORTS [2018] 12 S.C.R.

A 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.”
B
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 Sub-
C Section (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. Sub-
Section (4) then contemplates a process under which the names of those
D 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
E 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).

F 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
G 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

H
SHAILESH BANDU SWAMI v. DIPAK 125
[UDAY UMESH LALIT, J.]

when any casual vacancies were to arise in the office of the Chairman. A
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 B
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 C
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 D
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 E
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 F
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 G
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
1
Para 5 of Writ Petition No. 6897 of 2018
H
126 SUPREME COURT REPORTS [2018] 12 S.C.R.

A “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 Sr.
City Municipal Corporation was held on 02.05. 2018 pursuant to the No
B
intimation dated 26.04.2018 issued by the District Collector instructing 1.
the Commissioner of the Corporation to call such meeting. All the
members of the Standing Committee including the Chairman were 2.
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 3.
C 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 4.
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 5.
Act namely to have fresh appointment of 8 new incoming members was
D 6.
not undertaken. The “code of conduct” was in operation till 31.05.2018
and the Municipal Corporation received an intimation after it ceased to
7.
be in operation. Soon thereafter, on 06.06.2018 the Municipal Secretary
of the Corporation prepared Agenda and issued notices regarding meeting 8.
scheduled to be held on 14.06.20183.
E 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
F 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
G 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
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
H Municipal Corporation
SHAILESH BANDU SWAMI v. DIPAK 127
[UDAY UMESH LALIT, J.]

Committee vacated as per the Section 20(3) of the Maharashtra A
Municipal Corporations Act 1949 therefore, the Mayor has
declared the names of following 8 members appointed as the
standing committee members.
Sr. Name of Hon. Name of Party Name of Block leader
No. Member B
1. Meena Goroba Indian National Adv. Sul Deepak
Lokhande Congress Gangadhar.
2. Imran Jabbar Indian National Adv. Sul Deepak
Sayyad Congress Gangadhar.
3. Kamble Kailas Indian National Adv. Sul Deepak
Vyankatrao Congress Gangadhar. C
4. Sabade Indian National Adv. Sul Deepak
Vijaykumar Congress Gangadhar.
Hanmantrao
5. Panchakshari Indian National Adv. Sul Deepak
Pooja Subhash Congress Gangadhar.
6. Sapana Pandurang Indian National Adv. Sul Deepak D
Kiswe Congress Gangadhar.
7. Shailesh Bandu Bharatiya Janata Adv. Shailesh
Swami Party Prakash Gojamgunde.
8. Malu Shital Bharatiya Janata Adv. Shailesh
Shivrprasad Party Prakash Gojamgunde.
E
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
F
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 G
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
H
128 SUPREME COURT REPORTS [2018] 12 S.C.R.

A 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:-
B
“ 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
C 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 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
E 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”
F 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
G 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
H
SHAILESH BANDU SWAMI v. DIPAK 129
[UDAY UMESH LALIT, J.]

by respondent No.7 Shailesh Prakash Gojamgunde, Chairman of the A
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 B
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 C
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 D
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 E
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 F
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 G
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.
4
(2012) 1 SCC 10 H
130 SUPREME COURT REPORTS [2018] 12 S.C.R.

A (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.
B (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
C 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
D 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
E 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
F 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
G 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
H
SHAILESH BANDU SWAMI v. DIPAK 131
[UDAY UMESH LALIT, J.]

time in the meeting dated 14.06.2018. Since both these petitioners were A
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.
B
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.
C
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 D
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 E
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.
F
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:
G
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.

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132 SUPREME COURT REPORTS [2018] 12 S.C.R.

A 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.
B 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.
C
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
D 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
E 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
F 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
G 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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SHAILESH BANDU SWAMI v. DIPAK 133
[UDAY UMESH LALIT, J.]

members. Be that as it may, the question is whether the first course or A
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 B
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 C
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 Sub-
Section (5) of Section 20 such a meeting had to be held by the Corporation
and was rightly undertaken. In this meeting the proportional representation D
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 E
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 F
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 G
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.
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134 SUPREME COURT REPORTS [2018] 12 S.C.R.

A 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
B
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
C 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.
D 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.

E

F

G

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