Shri. Jayram Tolaji Shinde and Sau. Kavita B. Kardak Vs The Secretary, Urban Development Department, The Commissioner, Nashik Municipal Corporation, The State of Maharashtra and Sanjay Uttamrao Chavan <BR> Ateeq Ahmed Kamal Ahmed Vs Malegaon Municipal Corporation and Others <BR> Abdul Malik Mohammed Yunus Vs State of Maharashtra and Others <BR> Nandkumar Digambar Dhule and Others Vs Kalyan Dombivali Municipal Corporation and Others

Ferdino I. Rebello, J.@mdashA Division Bench of this Court, by its order in the case of Vasant Gite and Anr. v. Municipal Corporation of City of Nashik and Ors. in Writ Petition No. 2564 of 2007 along with several other petitions decided on April 30, 2007 had occasion to consider the provisions of Section 31A of the Maharashtra Municipal Corporation Amendment Ordinance 2007 which subsequent thereto was substituted by the Maharashtra Municipal Corporation (Amendment) Act, 2007 which hereinafter shall be referred to as Amendment Act. The learned Division Bench there had first considered the issue as to how to arrive at the relative quotient for being represented for the purpose of Section 31A(2). Taking an illustration, it was noted that if the strength of general assembly is 108 it will have to be divided by 16 which is the strength of the standing committee. This will work out to a quotient of 6.75. Then take the quotient of 6.75 and divide by the number of elected councillors to get the relative number of seats for representation on the standing committee. If it be a fraction, then the fraction of 0.50 or more be considered as one. The fraction of 0.49 and less was to be ignored. The court then proceeded to answer the second question of the proper construction of Sub-section (2) of Section and the proviso. The Division Bench noted that firstly members have to be nominated from amongst the registered parties or Aghadi or front which have the necessary quotient based on the relative strength of their membership of the general assembly. It was then observed that while so nominating it will be open by virtue of the proviso for a political party as long as the provisions of the Maharashtra Local Authorities Members Disqualification Act, 1976 are not attracted to nominate an elected councilor not belonging to the recognized or registered or group to the standing committee as set out in Sub-section (2). The court then proceeded to hold that after this exercise has been completed, if there be any balance seats those would be filled in by nomination by the Corporation from the parties or groups or independents not already represented. SLPs being No(s) 16368-1639/2007 and SLP No. 15661 of 2007 had been preferred by the Petitioners in those petitions which were dismissed as withdrawn on 10.07.2009/

2. Another Division Bench in Writ Petition No. 5857 of 2008 along with W.P. No. 5287 of 2008, on the issue as to whether the party can nominate a person not its member, was of the view that the view taken in Vasant Gite and Anr. (supra) was not correct and accordingly formulated the following question to be considered by the larger Bench;:

The question which will have to be considered by the Full Bench is : (1) Whether, in the light of Section 31A(2) of the Bombay Provincial Municipal Corporations Act, a party which is entitled to a quota can nominate to the committee member who does not belong to it?

The learned Division Bench in making this reference was pleased to observe that if such a mode is accepted, it would defeat the provisions of the Maharashtra Local Authority Members'' Disqualification Rules, 1987 and if a party is in need of more members it can always offer membership of the committee to the members who are not part of such a recognized party, which the Bench felt would not be appropriate.

3. The issue of representation of the standing committee, it appears came up for consideration once again in Writ Petition No. 7938 of 2008. After noting the judgment in Vasant Gite (supra) the learned Bench was pleased to formulate the following questions to be considered by the Larger Bench. We have renumbered the questions for the purpose of answering the questions in both references:

(2) Whether the procedure laid down in para 6 of the judgment in the case of Vasant Nivrutti Gite and Anr. v. The Municipal Corporation of City of Nashik and Ors. (Writ Petition No. 2564 of 2007 decided on 30.4.2007) (supra) for determining the party-wise representation on the Standing Committee is in keeping with the scheme of Sub-section (2) of Section 31A of the Act?

(3) Whether the words "in proportion to the strength of such parties or groups in the Corporation" contemplate inclusion of the number of the independent councillors or Councilors/members not belonging to any recognized party or registered party or group or front/Aghadi?

(4) Whether the first proviso below Sub-section (2) of Section 31A of the Act is only an enabling/discretionary provision and it does not create any vested right of appointment by nomination in favour of any Councilor/member not belonging to any recognized parties or registered parties or groups or fronts/aghadis?

(5) Whether the appointment by nomination on the Standing Committee is required to be made only from amongst the Councilors/members from/representing the recognized parties or registered parties or groups or fronts/aghadis?

These questions as formulated along with some other petitions where the questions arise have been placed before this Bench for our consideration and disposal.

4. At the hearing of this petition, on behalf of the Petitioner in Writ Petition No 8094 of 2008 the learned Counsel Mr. Vashi contended that the view taken in Vasant Gite and another where the fraction about 0.5 should be considered is one and fraction less than 0.5 should not be considered, would be contrary to the express language of Section 31A(2) of the Act. It is pointed out that the expression "as nearly as may be" has received judicial recognition. Our attention was firstly invited to the judgment of the Supreme Court in Jai Shankar Prasad, Adv. Vs. State of Bihar and Others, , to contend that the expression "as nearly as may be" would suggest that the allotment is not exact but approximate and is meant not to be mandatory but directory. Our attention was also invited to the judgment in R.C. Poudyal and Others Vs. Union of India and others, to contend that the Supreme Court while referring to Clause 3 of Article 332 considering the expression "as nearly as may be", held that it will be permissible to have deviation to some extent from the requirement. In other words the said expression permits latitude or deviation. It was also submitted on behalf of the Petitioners by the learned Counsel that this Court would have to evolve a principle, that all fractions would have to be considered and the seats allotted in the descending order of fractions. This learned Counsel submits would result in correct interpretation of the Section 31A(2) of the Act and at the same time, satisfy the requirements of expression "as nearly as may be". It is also submitted that appointment to the standing committee has to be made only from amongst councilor/members representing recognized parties or registered parties or from the groups/fronts/Aghadies. It is submitted that in so far as proviso is concerned, it is an enabling provision and does not confer vested right for appointment by nomination in favour of the councilor not belong to any recognized, registered parties or groups or Aghadies. The learned Counsel further submits that for the purpose of determining the representation based on partywise strength, only seats of recognized parties, groups, aghadies or fronts ought to be considered for proportional representation.

5. On the other hand Shri. Anturkar submitted that it will not be possible to evolve by judicial interpretation any universal formula which would take care of all permutations and combinations for the constitution of the Standing Committee and other committees as referred to in Section 31A(1). The Standing Committee, consists of 16 members. Although the Standing committee has to be representative in nature, it is possible that there may be a large numbers of members belonging to parties who do not have the necessary numbers to be represented. There may be independents who have not formed into a group. Therefore, it would be impossible, to fix any formula, which would be universally applicable in all situations to come.

If therefore, the legislature, has provided a formula of making the Committee, representative in character by considering the strength of the General Body that should be followed "as nearly as may be". Even the legislature has not contemplated strict adherence to that rule but contemplates that in some circumstances, it may not be possible to insist on strict adherence to such rule. In respect of such cases, where strict adherence to rule of "as nearly as may be" is not possible/workable, it is submitted that, the legislature has, in its wisdom, given the power to the entire General Body, to nominate any member who may be, either an independent member or belonging to any other political party/Aghadi/Front, which is not already represented on the Committee. A person so elected by the entire house truly represents the General Body and that would be more democratic in nature and will be truly representative and will be in consonance with the object, which is sought to be achieved by Section 31A. This interpretation would be in consonance with the purposive interpretation.

Lastly it is submitted that the interpretation, sought to be canvassed by Mr. Vashi that larger the fraction, then to nominate the member from that party, should not be preferred because that does not achieve the object and it ignores, and in fact, substitutes, the remedy, which is such circumstances, has been provided for and intended to be implemented by the legislature. It would amount substituting the statutory remedy by another remedy, which the Honourable Court thinks, to be better, than the one provided by legislature. Such course is clearly inadmissible. The learned Counsel submits that the view taken in Vasant Gite''s case (supra) represents the correct interpretation.

Mr. Dhakephalkar submits that there is no bar u/s 31A(2) in a political party nominating a person not its member. It is therefore, submitted that the view taken in Vasant Gite''s case is the correct view. Considering the first proviso to Section 31A, it is submitted that Sub-section (2) provides for representation based on the relative strength of the parties, the proviso permits nomination from those nor represented. If nomination is from the parties/fronts/aghadies, already represented, then the proviso would be meaningless. The learned Counsel supports the view taken by Vasant Gite''s case.

7. Shri. Gangal appearing for the Corporation in Writ Petition No. 5857 and 5217 submits that the powers of nominating councillors of the standing committee are given to the Corporation. The proviso to Sub-section (2) gives over all powers to General Body to nominate any member not representing any party or group. In nominating the councilor 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 such parties or groups. From this it is submitted, is clear that there are two different sources from which nomination is intended for the recognized/ registered party or group or aghadi:

(1) proportionate representation based on the relative strength of respective parties or groups:

(2) remaining seats to other parties which do not have necessary quotient to nominate in proportionate to their strength and

(3) Independents who have not formed groups.

It is submitted that the judgment of the Division Bench in Gite''s case, to that extent represents the correct position in law. It is then submitted the Division Bench judgment states that other smaller parties, which are registered, or groups which are registered and who do not have the quotient, the representation can be given from the quota of the registered parties and group only does not appear to be correct. It is submitted that where there are large number of independents or smaller parties having 2 or 5 councillors each, but which do not have the required quotient of nominating any Councilor, can be nominated irrespective of the fact whether such Councilor belongs to a smaller party or is an independent Councilor. If this is followed, it will give complete workability to Section 31(A). Any other interpretation will lead to leaving some of the councillors not getting an opportunity to be nominated and this cannot be the intention of the legislature. The other counsels appearing for other Municipal Corporations supported the view canvassed by Mr. Gan gal.

8. With the above background, we may now propose to dispose of the controversy. For that purpose we may gainfully refer to the provisions of Section 31A of the Act which reads as under:

31A. Appointment by nomination on Committees to be by proportional representation : (1) Notwithstanding anything contained in this Act or the rules or bylaws, made thereunder, in the case of the following Committees, except where it is provided by this Act, that the appointment of a Councilor to any Committee shall be by virtue of his holding any office, appointment of Councilor 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 u/s 30;

(d) Any ad hoc Committee appointed u/s 31. (2) In nominating the councillors to 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 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, nothing contained in this Sub-section be construed as preventing the Corporation from nominating on the Committee any member not belonging to any such party or group.

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.

9. This Court in the case of Vasant Gite and Others had noted the statement appended to the Ordinance which read as under:

3. To ensure that all the recognized parties and groups in the Corporation are adequately represented in the Committees constituted under the Corporations Acts, the Government considers it expedient to amend these Acts to provide for the nomination of members of the Committees in proportion to the strength of the political parties of groups in the Corporation.

10. The strength of the Standing Committee as provided by Section 20 of the Act, is 16 to be nominated from amongst the councilors. The quotient considering the strength of the General Body of each corporation is bound to vary, depending on the strength of the General Body by the strength of the standing Committee, to arrive at the quotient. The other view canvassed by Mr. Vashi is to exclude the independents who do not constitute a post poll aghadi or front in terms of the proviso to the Sub-section. If this is followed, the quotient will change depending on how many independent councillors are elected and how many of them do not constitute a group or aghadi. The quotient will change therefore, at every election and also in the course of the term if by-elections are held and independents get elected. If Mr. Vashi''s argument is to be accepted then that would amount to rewriting the Section and the expression "in proportion to the strength of such parties or groups in the Corporation" will have to be ignored by substituting in proportion to the strength of the recognized parties or groups or fronts in the Corporation and excluding the independents who may not constitute themselves into a group or front. Courts only when the literal construction gives rise to an absurdity or defeats the intent of the legislature to give intent to the object of the Legislature may then only do some violence to the language and not otherwise. In the instant case, there is no reason to depart from the literal interpretation.

11. We shall now answer the question referred in Shri. Jayaram Shinde (supra). The language of the Sub-section only indicates that in nominating 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 such parties or groups in the Corporation. In other words, what is relevant is nomination of members in proportion to the strength of such parties. Sub-section by itself does not provide that they must be members of the same party or group or front or aghadi. Further more, the proviso itself makes it clear that nothing in Sub-section (2) can be construed as preventing the Corporation from nominating on the committee any member not belonging to any such party or group. In other words, it will be clear that while nominating the members, the recognized political party or group or aghadi or front may also propose to nominate any independent or member of any political party or group as long as by such nomination such member does not incur disqualification. A party, front, group or aghadi proposing to nominate an independent or member of any other party or front necessarily must have the concurrence of such member to propose his name for nomination. In Vasant Gite''s case, while dealing with this aspect, the court had noted as under:

This no doubt would give advantage to the ruling group in the Corporation to fill in the seats from those who support them. In our opinion, this is a part of our democratic process and as such cannot be faulted with.

It is possible that in order to have a working majority a party, front or group may seek support of other groups or Aghadies or independents and in lieu of such support may agree to nominate members, belonging to such groups or aghadies, or fronts or parties or independents to various committees from their quota. A reading of the section does not abhore this interpretation. It is only to the extent that any such nomination may attract the provisions of the Maharashtra Local Authority Members Disqualification Act, 1986, that it will not be possible to make such nomination. Otherwise we find no embargo in the section, preventing such nomination. In the kind of fractured mandates, that is a scene today, a working majority is desirable so that the local body carries out its objectives. Courts while interpreting such provisions, must make our democratic institutions workable. The object of the interpretation in such matters should be to strengthen the democratic process, not to thwart it. This Court as a protector of the rule of law and of the Constitutional principles that we are bound to protect and promote must interpret the provisions in favour of stability in our democratic institution and bodies as long as the view is possible. In the light of that, we are of the view that the view taken in Vasant Gite''s case represents the correct view.

12. The next question being question Nos. 2 and 3 for our consideration is whether the procedure for determining partywise representation on the standing committee as held in Vasant Gite is in consonance with Sub-section 2 of Section 31 of the Act and should independent members and other members not belonging to any recognized or registered party, group, front or aghadi be excluded while working out the quotient. The question has been addressed in Para 11 of this judgment.

We may consider the second proviso to Sub-section (2). Notwithstanding the provisions of Disqualification Act, for the purpose of representation, it is possible to form a post poll aghadi but within one month from the date of notification of the election results and such front or aghadi along with registered political party would be entitled to recognition. In other words even independents and others if they form a post poll aghadi or front if they have the quotient can be represented. If such independent councillors have to be counted in such cases to work out the quotient, why have they to be excluded if they do not form a front or aghadi. This by itself must negate the argument advanced by Mr. Vashi for working out the quotient. The language used is "in proportion to the strength of such parties or the groups of such parties in the Corporation". Will this exclude others not a part of such party, group, aghadi or front. Therefore what is relevant is the strength of members in the Corporation. If it be not so construed, then even in the event there may be members like independents who have not formed into a group or aghadi or fronts yet their combined strength would be excluded for the purpose of working out their representation in the Corporation. In such an event the expression the relative strength of such parties in the Corporation will become irrelevant. The second proviso merely contemplates that in working out the representation of the parties a post poll front or aghadi registered within the time frame will also be entitled to proportionate representation. If Mr. Vashi ''s argument is considered that it is not the relative strength of the Corporation but the strength of members of recognized or registered parties, fronts or aghadies after excluding independents or others who may not form an aghadi or group that has to be counted. Say in a Corporation having 100 members, if there be 20 independents not forming an aghadi or front, such councillors will have to be excluded and the quotient will have to be considered based on 80:16 = 5 whereas considering the view taken in Gite''s case, in a house strength of 100, it would 100:16=6.25 which will be considered. The relative strength can only be in respect of the strength of the Corporation. Any other interpretation would cause violence to the interpretation u/s 31A(2), nomination has to be made by the Corporation while giving representation based on relative strength. Leader of the House and Leader of the opposition and leaders of each party or group have to be consulted. At the same time by virtue of the first proviso, the Corporation can nominate any member not belonging to any such party or group. These provisions will have to be read together. The first proviso cannot affect the representation that each party or group can get based on the quotient. The proviso can only come into play, after the parties or groups are given due representation based on the strength in the corporation and considering the quotient.

12A. Though the right to be represented on the standing committee may be statutory and all members have the right to participate in the procedure for nomination, as the nomination has to be done by the Corporation can independent members or others who are not a party or aghadi or front and may together have the seats which can add to a quotient, be denied representation only because they are not registered under the second proviso. Also an independent elected in bye elections cannot join an existing front or aghadi. Will this not lead to unreasonableness or arbitrariness if the second proviso is construed to give the remaining seats also to registered or recognized parties, fronts or aghadies who may not have the necessary quotient even considering the expression "as nearly as may be". The second proviso will have to be so construed to give stability as otherwise it will be open to form new fronts or aghadies every time a bye-election is held and results declared. What therefore, has to be taken into consideration is the strength of the Corporation in terms of the provisions of the Act. In our opinion, therefore, the view taken in Vasant Gite''s case represents the correct view.

13. Yet another aspect which has to be considered is whether by a statutory provision an elected member can be excluded from being considered for a seat on the standing committee. The first part of Section 31A(2) gives representation to a class of parties, aghadies or front who have the necessary quotient, in proportion to their relative strength in the Corporation to be represented on the standing committee. That would mean based on the seats that they have and the total number of seats in the Corporation. Do independent members who may have a different economic or social agenda or elected on specific local issues, be forced to join an aghadi or front after the elections for being considered for nomination purely as an opportunistic measure. Similarly smaller parties with a view to be represented are they to be forced to enter into an aghadi or front notwithstanding the political, social or economic philosophies which they may have from other parties. Once the seats are allotted based on the relative strength of the parties, any seats that remain vacant on account of the combined strength of independents and such other parties, aghadies or fronts who by themselves may not have the necessary quotient but together the seats they hold might add to the necessary quotient will have to be given representation. If the proviso is to be read to mean that such parties or independents can also be nominated by the Corporation, then the plea of arbitrariness or unreasonableness will also not survive. After the first exercise is done in consultation with the Leader of the house, leader of the opposition and leaders of other parties to fill in the seats by nomination based on the relative strength of the parties, the proper construction will be that the remainder of the seats have to be filled by the Corporation by nominating from members who belong to parties, fronts or independents not already represented. It may also be noted that after by elections, independent members or others may be elected who may not belong to the party or aghadi or front already having representation in the Corporation or already registered and not belong to any party cannot join any other front, aghadi considering the second proviso. At the highest, they may form themselves into a new aghadi or front. In our opinion, therefore, Sub-section (2) along with its proviso will have to be so read. If the parties or aghadies with the quotient less than 0.5 are to be given the balance seats also, that will defeat the principle of relative strength. It may also be noted that the Corporation can only nominate a member to the standing committee but the section does not contemplate forcing any party or group to nominate any independent or from party not represented from their quota on the standing committee.

14. We may consider the issue of fraction. In the State of U.P. And Anr. v. Pawan Kumar Tiwari and Ors. (2005) 2 Scc 10, the Supreme Court has considered the issue of rounding off. In that case, the Supreme Curt had rounded up the figure of 46.50. It was rounded from 46.50 to 47. In this context the court observed as under:

The rule of rounding off based on logic and common sense is, if part is one half or more, its value shall be increased to one and if part is less than half then its value shall be ignored.

15. It is no doubt possible considering the arguments advanced at the bar and the judgments which uses the expression "as nearly as may be" and that rounding up of the fraction is based on logic, nonetheless from the illustrations cited at the bar that if the fraction 0.5 is considered as one, a situation may arise where representation may go beyond 16. That leads to two interpretations. One to consider 0.5 or more as one considering the expression "as nearly as may be". The other would be having a standing committee of more than 16. It will not be possible to have a construction of a provision which will result in more members of a standing committee which is statutorily fixed. The view which gives rise to one consistent interpretation will have to be preferred. Excluding the fraction say of 0.9 which could have been rounded upto 1, may also result in denying to a party or group or aghadi representation. Legislature having noted that it may not be possible to fill all the seats in proportion to the strength of the parties has used the expression "relative strength" and "necessary as may be".

In that context in our opinion, the judgment in Vasant Gite, will have to be explained. While considering the decimal of 0.5 or more by rounding as one, the representation will have to be worked out in the following manner. Anything less than 0.5 to be excluded. Between less than 1 and 0.5 to first allow representation in the descending order. Say if there are only 2 vacancies and 4 parties or groups or aghadies, having 0.95, 0.80, 0.60, 0.5, then to first give representation to those having 0.90 and 0.80 and not 0.60 and 0.5. Similarly in a situation, if there be 4 vacancies and only 2 parties say having a fraction between 0.99 and 0.5, then after giving representation to these parties or groups, to fill the remaining two vacancies by nomination by the Corporation as from other parties, fronts or aghadies including independents not already represented. The representation therefore would be as nearly as may be based on the seats divided by the quotient and ignoring the fractions as now explained. The view which was sought to be canvassed by Mr. Vashi in our opinion, cannot be accepted on the express language of the Sub-section to consider the fractions in descending order even to those having below 0.5. In such situation, though a party or group or Aghadi or front may not have the necessary quotient, because it still may have say one member which may work out to 0.1 will still get representation. This cannot be read into the expression "as nearly as may be". In our opinion, Sub-section (2) would have to be read along with the proviso. The proviso takes into consideration the situations where there still may be vacancies after nomination based on the relative strength of the parties. In such event the Corporation without consulting the leaders of the parties or groups would nominate from such other parties not already represented and from the independents not represented to the vacancies in the Standing Committee.

In the light of our discussion, Question No. 2 is answered in the affirmative. In so far as Question No. 3 is concerned as held the strength of independent councillors has to be included while working out the quotient for working out the quota based on relative strength of such parties or groups. Questions answered accordingly.

16. We now proceed to answer question Nos. 4 and 5. A proviso, as is well known may serve different purposes;

(i) qualifying or excepting certain provisions from the main enactment;

(ii) it may entirely change the very concept or the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable;

(iii) it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself, and

(iv) it may be used merely to act as an optional addendum to the enactment with the sole object of explaining the real intendment of the statutory provision.

(See S. Sundaram Pillai and Others Vs. `R. Pattabiraman and Others, ).

The first proviso as earlier construed confers power on the Corporation to nominate members from parties or groups not already represented which will also include independents. If this is considered, then after the parties, groups, fronts or aghadies get their representation based on the quotient the members belonging to recognized party or group or Aghadi or front or independents not already represented and irrespective of the fact whether they have the necessary quotient, it is open to the Corporation to nominate from such members. In this exercise there is no consultation. Such a situation will only arise in the event of a vacancy or vacancies after the registered parties, fronts or groups nominate their members. The question then is how are such vacant seats to be filled in. As rightly pointed out by Mr. Dhakephalkar, if after getting representation based on their relative strength in the Corporation, if the balance seats are also to be filled in from the same parties already represented, that would defeat the very object of the Sub-section itself. In this manner a party or group or aghadi can corner the balance seats even if they are already represented based on their relative strength in the Corporation to the exclusion of smaller groups or independents. In the interpretation now given though they cannot nominate their own member, they however, will still have a say in nomination but that would be by nominating from independents or parties or aghadi not already represented. To that extent, in our opinion, the view taken in Gite''s case namely that the balance seats can be filled in by nomination from amongst the members, groups or fronts or independents not already represented will have to be accepted. The expression "such" in the first proviso attains importance. If this was not the intention of the legislature then the expression "such" would not have been used. In the absence of the expression "such", the seats could have been filled in from any of the parties or groups, fronts or aghadies including those already represented. By use of the expression "such" which is also there in Sub-section (2) the legislative intent seems to mean that once parties are represented based on their relative strength then the remainder of the vacant seats be filled from amongst those who are not represented. The vacancies in such situation do arise, because though all such groups or independents together. may have the necessary quotient, yet individually they can not get representation because the independents, party, group, front or aghadi do not by themselves have the necessary quotient. The vacancy arises because of such a situation. In our opinion, in that context we are in agreement with the view taken in Gite''s case. Once there is power in the House to nominate any Councilor, it is because, the Legislature has contemplated such a situation. The proviso in the instant case, considering the law declared in S. Sunderam Pillai (supra) becomes an integral part of the Sub-section itself. So read the proviso confer power on the corporation to make nomination from parties, or groups, fronts or aghadies not already represented and to the extent give a vested right to such other members to be considered for nomination. Question No. 4 answered accordingly.

17. Considering the discussions, apart from recognized or registered parties, or groups, or aghadies or fronts, nominations can also be made from members who may be independent or others whether belonging to recognized or registered party, group or aghadi or not but not already represented. Question No. 5 answered accordingly.

18. Considering the above discussions, the questions formulated are answered in the following terms:

The reference is accordingly answered in terms of the majority view.