JUDGMENT : R.M. Borde, J. Heard. 2. Rule. Rule made returnable forthwith by consent of the parties. Petition is taken up for final disposal at admission stage. 3. The petitioner is resident of Yawal, Taluka Yawal and claims to be eligible for being nominated as a Councillor of Municipal Council, Yawal. The petitioner also contends that his name was suggested for being appointed as a nominated Councillor by Khandesh Vikas Aghadi, which has representation of four elected councillors in the Municipal Council, Yawal. 4. The petitioner makes a grievance that instead of considering his claim for being nominated as a councillor, the Collector has nominated respondent No. 5 and an another individual representing post pole alliance of 15 councillors. The petitioner is also seeking a declaration that the provisions of section 21 (3) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965, hereinafter referred to as 'the Municipalities Act, 1965', is violative of the provisions of Articles 14 and 243-R (2) (a) (i) of the Constitution of India as well as provisions of section 9 of the Municipalities Act, 1965 and the rules framed thereunder. 5. Yawal Municipal Council has a strength of 19 elected councillors, determined in accordance with section 9 (1) (b) of the Municipalities Act of 1965. Out of those 19 members of Municipal Council, four represent Khandesh Vikas Aghadi whereas, a group of 10 councillors represents Indian National Congress Party; a group of 5 councillors represents Nationalist Congress Party; and one independent councillor is from a post-pole alliance formed within one month from the date of declaration of the elections. The name of the petitioner was suggested by Khandesh Vikas Aghadi whereas, the group of 15 councillors suggested names of two councillors for appointment under section 9 (1) (b) of the Municipalities Act, 1965, to the Collector. The petitioner contends that since he has support of four members of Khandesh Vikas Aghadi, which is a single largest party formed prior to the elections, is entitled to be nominated under section 9 (1) (b) of the Municipalities Act, 1965. 6. The petitioner contends that since he has support of four members of Khandesh Vikas Aghadi, which is a single largest party formed prior to the elections, is entitled to be nominated under section 9 (1) (b) of the Municipalities Act, 1965. 6. The petitioner, before presentation of instant petition, had approached this Court by filing Writ Petition No. 5933 of 2012, however, in view of availability of alternate remedy, the petitioner requested for leave to withdraw the petition, which was granted by this Court and the petition was disposed of with liberty to the petitioner to avail alternate remedy available in law by order dated 16th October, 2012. The petitioner, after withdrawal of his earlier petition, has presented an Election Petition along with an application seeking condonation of delay, to the District Court and the said petition and the application seeking condonation of delay is stated to be pending. 7. The petitioner has again approached this Court with a prayer to declare that the provisions of section 21 (3) of the Municipalities Act, 1965 is unconstitutional and further to quash and set aside the order passed by respondent No. 2-Collector dated 21st February, 2012 to the extent of nominating respondent No. 5 as a nominated councillor of respondent No. 4-Municipal Council. The petitioner is also praying for a declaration that he is legally and validly nominated as a councillor of respondent No. 4 Municipal Council for the term 2011-2016. 8. An affidavit-in-reply has been presented by the District Collector, Jalgaon, controverting the contentions raised by the petitioner in this petition. It is contended that the nomination of the petitioner is backed by four members belonging to Khandesh Vikas Aghadi whereas, 15 councillors, which formed a separate group, has suggested names of two individuals for being nominated. The collector found that the names suggested by the 15 councillors of the individuals, who have backing of 15 councillors, do satisfy the requirements laid down under the Act for their nomination as Councillors of the Municipal Council and as such, by an order dated 21st February, 2012, nominated respondent No. 5 and another individual as councillors of respondent No. 4-Municipal Council. 9. 9. Section 9 (1) (b) of the Municipalities Act, 1965 provides for appointment of such number of councillors not exceeding ten percent of the total number of elected councillors or five, whichever is less, having special knowledge or experience in municipal administration, to be nominated by the Collector in such a manner as may be prescribed. The manner of nominating the councillors is provided under the Maharashtra Municipal Councils and Nagar Panchayats (Qualifications and Appointments of Nominated Councillors) Rules, 2006, hereinafter referred to as 'the Rules'. The qualification for nomination have been laid down in Rule 4 whereas, nominations of councillors is provided under Rule 5 of the rules, which read thus :- "4. Qualification for nomination. - Any person who fulfils any of the following conditions shall be eligible for being nominated as a candidate for the office of the nominated Councillor. - (a) has an experience as a medical practitioner in a municipal hospital for not less than five years; (b) has an experience of not less than five years, as a member of recognised non-Government Organisations and community based Organisations engaged in Social Welfare activities working within the area of a Municipal Corporation or a Council; (c) has an expertise in the field of municipal laws or labour laws in respect of municipal workers; (d) had been a Councillor for not less than five years; (e) has an experience of working for not less than two years as a Municipal Commissioner; or (f) has an experience of working for not less than five years as a Chief Officer of a Council or as a Deputy or Assistant Municipal Commissioner in a Corporation." "5. Nomination of Councillors. - In nominating the Councillors the Collector shall take into account the relative strength of recognised parties or registered parties or groups, and nominate the members, as nearly as may be, in proportion to the strength of such parties or groups in the Council, after consulting leader of each of such party or group: Provided that, nothing contained in this rule shall be construed as preventing the Collector from nominating any member not belonging to any such party or group." 10. In the instant matter, the Collector has taken into consideration the relative strength of the parties, relative strength of the groups in the Municipal Council and after consulting the leaders of such groups, has nominated two councillors. In the instant matter, the Collector has taken into consideration the relative strength of the parties, relative strength of the groups in the Municipal Council and after consulting the leaders of such groups, has nominated two councillors. Proviso to Rule 4 invests discretion in the Collector to nominate any member not belonging to any party or group, as a councillor. The order passed by the Collector nominating respondent No. 5 and another councillor, is in conformity with the Rules 4 and 5 of the Rules read with section 9 (1) (b) of the Municipalities Act, 1965. 11. The another objection raised by the petitioner as regards the qualification of respondent No. 5 does not deserve consideration. Even otherwise, the petitioner has presented an Election Petition challenging the appointment of respondent No. 5 as nominated councillor and as such, the objections raised by the petitioner in the instant petition need not be considered. It would be open for the petitioner to prosecute the remedy already availed of by him. 12. The petitioner has also sought declaration to hold the provisions of section 21 (3) to be unconstitutional. Section 21 of the Act relates to the dispute in respect of the election or nomination of the councillors. Sub-section (1) of section 21 provides that no election or nomination of a councillor may be called in question, except by a petition presented to the District Court, by a candidate at the election or by any person entitled to vote at the election, within ten days from the date of publication of the names of the councillors in the Official Gazette under section 19 or 20, as the case may be. Sub-section (3) of section 21 provides for the declarations, which can be claimed by the petitioner, and reads thus :- "21 (3). Sub-section (3) of section 21 provides for the declarations, which can be claimed by the petitioner, and reads thus :- "21 (3). A petitioner may claim all or any one of the following declarations :- (a) that the election of all or any of the returned candidates is void; or (b) that the election of all or any of the returned candidates is void and that he himself or any other candidate has been duly elected; or (c) that the nomination of all or any of the nominated Councillors is void." Sub-section (4) of section 21 provides for joinder of the parties whereas, Sub-section (10) lays down the criteria or conditions for declaring that the petitioner or any other candidate has been duly elected. Sub-section (4) and sub-section (10) are relevant for consideration and the same are quoted as below :- "21 (4). A petitioner shall join as respondents to his petition - (a) Where the petitioner claims a declaration under clause (a) of sub-section (3), the returned candidate or candidates in respect of whom such declaration is claimed; (b) where the petitioner claims a declaration under clause (b) of sub-section (3), all the contesting candidates other than the petitioner; (c) any other candidate against whom allegations of any corrupt or illegal practice are made in the petition; (d) Where the petitioner claims a declaration under clause (C) of sub-section (3), all or any of the nominated Councillors in respect of whom such declaration is claimed and the Council who nominated the Councillor member.] "21 (10). If the petitioner has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the Judge is satisfied that – (a) the petitioner or such other candidate received sufficient number of valid votes to have been elected; or (b) but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a sufficient number of valid votes to have been elected; the Judge may, after declaring the election of the returned candidate void, declare the petitioner or such other candidate to have been duly elected: Provided that – (i) for the purpose of such computation, no vote shall be reckoned as valid if the Judge finds that any corrupt practice was committed by any person known or unknown in giving or obtaining it; (ii) after such computation, if any equality of vote is found to exist between any candidates and the addition of one vote would entitle any of the candidates to be declared elected, one additional vote shall be added to the total number of valid votes found to have been recorded in favour of the candidate, or candidates, as the case may be, selected by lot drawn in the presence of the Judge in such manner as he may determine." 13. The petitioner contends that in case of a nominated candidate, sub-section (3) of section 21 do not provide for declaration of the election petitioner or any other person, to be duly elected. It is permissible under sub-section (3) of section 21 to grant such a declaration so far as only in a case where, the petitioner challenges the election of a returned candidate. The petitioner contends that sub-section (3) of section 21 and more specifically, clause (b) contained therein, is discriminatory since the provisions exclude the category of nominated candidates, from praying for a declaration of the petitioner or any other candidates, to have been duly elected. The petitioner contends that the provisions are discriminatory and violative of Articles 14 as well as 243-R (2) (a) (i) of the Constitution of India as well as section 9 of the Municipalities Act, 1965. 14. Section 9 of the Municipalities Act, 1965 provides for composition of councils. The petitioner contends that the provisions are discriminatory and violative of Articles 14 as well as 243-R (2) (a) (i) of the Constitution of India as well as section 9 of the Municipalities Act, 1965. 14. Section 9 of the Municipalities Act, 1965 provides for composition of councils. Clause (a) of sub-section (1) of section 9 provides that every council shall consist of councillors elected at ward elections by direct elections whereas, clause (b) of sub-section (1) provides for councillors to be nominated by the Collector in the manner as may be prescribed. It is required to be noted that section 9 itself makes a distinction amongst the councillors as elected class of councillors and nominated class of councillors, which is divided into councillors elected at ward elections and councillors nominated by the Collector. On perusal of the Rules of 2006 and more specifically, proviso to Rule 5, it is clear that the Collector is invested with the power of nominating the councillors and is not bound to appoint only such persons those have been suggested by a political party or the group of councillors. The Municipalities Act, 1965 itself makes a distinction and provides for two classes of councillors. There is no discrimination amongst either of the classes and as such, the arguments advanced by the petitioner that section 21 (3) (b) makes discrimination amongst the classes of councillors, is devoid of substance. 15. Apart from section 9, Article 243-R (2) provides that the Legislation of the State may, by law, provide for representation in municipality of the persons having special knowledge or experience in municipal administration. Sub-article (1) of Article 243-R provides that save as provided in clause (2), all the seats in a Municipality shall be filled by persons chosen by direct election from the territorial constituencies in the Municipal area and for this purpose each Municipal area shall be divided into territorial constituencies to be known as wards. It is, thus, clear that Article 243-R and sub-article (1) and (2) themselves make distinction in the class of councillors. Sub-article (1) of Article 243-R provides for election of councillors by direct election from the territorial constituencies in the Municipal area whereas, sub-article (2) of Article 243-R provides for representation in the municipality by person or persons having special knowledge or experience in municipal administration. Sub-article (1) of Article 243-R provides for election of councillors by direct election from the territorial constituencies in the Municipal area whereas, sub-article (2) of Article 243-R provides for representation in the municipality by person or persons having special knowledge or experience in municipal administration. Since Article 243-R itself provides for two classes of councillors, the arguments advanced by the petitioner that section 21 (3) (b) is discriminatory, is devoid of substance. It would be impermissible to prescribe discrimination amongst same class and that separate provision can be made providing for extending separate treatment to a distinct class. The law must provide for a uniform treatment amongst the same class and there shall not be any discrimination amongst specified class or else, such provision would be violative of Article 14 of the Constitution of India. 16. In the instant matter, there is no discriminatory treatment meted out to a distinct group amongst the same class. It must be noted that class of elected councillors and nominated councillors, is separately provided under the scheme of Act and such a distinction is also within contemplated under Article 243-R of the Constitution of India. The arguments advanced by learned counsel for the petitioner that clause (b) of sub-section (3) of section 21 provides for differential treatment amongst the same class, is unacceptable. However, if one consider the provisions of sub-section (3) (b) and sub-section (10) of section 21 of the Municipalities Act, 1965, it would be clear that the intention of the Legislation is to provide for remedy for the petitioner to claim declaration that he himself or any other candidate have been duly elected, in case when election of elected councillor is called in question. 17. So far as joining of the parties as respondents to the election petition is concerned, sub-section (4) (a) provides that, where the petitioner claims a declaration under clause (a) of sub-section (3), that the election of all or any one of the returned candidate is void, he has to implead the returned candidates or candidates in respect of whom, such declaration is claimed. In the event such petitioner seeks declaration that he himself or any other person is duly elected, he has to implead all the elected candidates as party respondents. 18. In the event such petitioner seeks declaration that he himself or any other person is duly elected, he has to implead all the elected candidates as party respondents. 18. In the event, if the election petitioner alleges corrupt practice, he has to implead the candidates against whom, allegations of corrupt practice are made, in the petition. Whereas, in case of a nominated councillor where a declaration is sought that the nomination of all or any of the nominated councillor is void, the election petitioner has to implead the nominated councillor or councillors against whom such declaration is sought. Sub-section (10) of section 21 provides that in case the election petitioner has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected, such declaration can be granted if the Judge is satisfied that (a) the petitioner or such other candidate received sufficient number of valid votes to have been elected; or (b) but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a sufficient number of valid votes to have been elected. 19. The scheme of section 21 is quite rational, which relates to dispute in respect of the election. The provision does not prescribe for grant of declaration in favour of the election petitioner or any other candidate, to have been duly elected in case of nominated councillor and such declaration shall have to be granted under the circumstances enumerated in sub-section (10) of section 21. The classification amongst the elected and nominated councillor, which is provided under Article 243-R as well under section 9 of the Municipalities Act, 1965, is quite rational. There is no discrimination amongst the same class and as such, the arguments made by the petitioner based upon the principles of Article 14 of the Constitution of India, is not acceptable. 20. For the reasons recorded above, the Writ Petition does not deserve consideration and stands rejected. Rule discharged.