Petitioner has carried out unauthorized construction, considering the
Scheme of Sections 10(1D), 11 and 12 of the MMC Act. It is
necessary for the Commissioner to come to the conclusion that as to
whether the Petitioner, being the Councillor, has carried out
unauthorized construction during his present tenure. Admittedly,
there is no such case that such construction is carried out during his
present tenure. No such action was taken in the Petitioner's earlier
tenure. The conclusion so arrived at by the Commissioner is without
any discussion on the interpretation of Section 10(1D) and whether
such construction activities were carried out during the Petitioner's
earlier tenure cannot be countenanced and cannot be the foundation
to dislodge a sitting Councillor. The Commissioner has no authority
and jurisdiction even to take such decision, without deciding the
issues/disputes for want of specific provisions, is another factor. The
drastic action of disqualification, based upon such unauthorized
construction, which is not during the present tenure, is therefore, bad
in law. Respondent No.1 cannot be permitted to add more reasons
through an affidavit in reply, in the Writ Petition, in this regard.
11 The fact that the construction is still in existence, in our
view, cannot be the reason to dislodge the elected Councillor without
following due procedure of law and by not referring the
matter/proposal to the General Body of the Corporation for making a
reference to the Judge.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3707 OF 2016
Shri Mallesh Shivan Shetty
Vs.
The Commissioner,
Kalyan Dombivali Municipal
Corporation Kalyan.
CORAM : ANOOP V. MOHTA AND
A.A. SAYED, JJ.
DATE : 6 APRIL 2016.
Citation: 2016 (5) ALLMR 432
As the regular Bench could not take this matter and in
view of urgency expressed, circulated before this Bench. Heard finally,
by consent of the parties.
2 Rule. Rule is made returnable forthwith.
3 Though this Writ Petition was served upon Respondent
Nos. 4 and 5, none appeared for them. Affidavit of service to that
effect is filed by the Petitioner. The same is taken on record. All other
main contesting parties are heard.
4 The Petitioner, who is elected as Councillor from Ward No.
42 of Kalyan Dombivali Municipal Corporation in October/November
2015, has filed the present Writ Petition thereby, challenged the order
passed by the Commissioner, Kalyan Dombivali Municipal
CorporationRespondent No.1 dated 23 March 2006, which reads as
under:
ORDER
1) Shri. Mallesh Shivan Shetty, has incurred
disqualification as the councillor from Ward No. 42 of
Kalyan Dombivli Municipal Corporation u/s. 10(1D) of
the Maharashtra Municipal Corporation Act.
2) The representation of Shri. Narendra Krushnanath Gupte
is finally disposed off in above terms.
3) Copy of this order be given to Shri. Mallesh Shivan
Shetty, Shri. Narendra Krushnanath Gupte and The
Municipal Secretary, Kalyan Dombivli Municipal
Corporation.”
5 Admittedly, the Petitioner got elected in Ward No.68 of
Kalyan Dombivali Municipal Corporation for the year 20-10-2015.
Based upon a complaint against the Petitioner that he has carried out
an unauthorized construction and is required to be disqualified as the
Councillor, the proceedings in question had been initiated. Prior to
this, during his earlier tenure, a show cause notice was issued under
the Maharashtra Municipal Corporation Act, (For short, “MMC Act”)
thereby, calling upon the Petitioner to give reply as to why the alleged
illegal construction described in the notice, should not be demolished.
The Petitioner resisted the show cause notice by filing reply.
Ultimately, on 4 March 2014, the Corporation has passed an order
holding that the alleged construction carried out by the Petitioner is
illegal.
6 Respondent No.1, thereafter, issued another show cause
notice seeking explanation as to why he should not be disqualified as
a Councillor for his remaining period as per the provisions of Section
10(1D) of the MMC Act. The statement is made that no further steps
were taken by the Respondents, except the show cause notice. The
Suit was filed by the Petitioner challenging order dated 4 March 2014,
in the Court of Civil Judge, Junior Division, Kalyan. The Suit is
pending. There was no declaration and/or order passed of
disqualifying the Petitioner in his tenure which ended on 11
November 2015.
7 A fresh election was declared and the Petitioner has
participated in the election by filing nomination on 25 October 2015.
The Petitioner got elected on 2 November 2015, for the term 2015
2020. As noted above, though show cause notice was issued, no
further steps were taken against the Petitioner of disqualification,
during the earlier tenure. However, Respondent No.3 made a
complaint to Respondent No.1 pertaining to the same unauthorized
construction by the Petitioner, with prayer to declare that the
Petitioner has incurred disqualification and Respondent No.1 to pass
formal order accordingly, which is impugned in the present Petition.
8 The learned Senior Counsel appearing for the Petitioner,
has cited following Judgments and orders in support of his submission
to set aside the impugned order, being bad in law and unsustainable.
a) Madhukar Devram Patil Vs. State of Maharashtra1
b) Sajida Nihal Ahmed, Malegaon Vs. Malegaon
Municipal Corporation2
1 AIR 2004 Bom 473 = 2004(6) BCR 659
2 AIR 2005 Bom 81 = 2005(1) BCR 142
c) Surjitsing J. Girniwale & Ors. Vs. Commissioner,
Nanded Waghala Municipal Corporation & Anr.3
d) Martin Moresh Vs. State of Maharashtra4
e) Noorjahan M. Aslamansani Vs. State of Maharashtra5
f) Vithal Son of Nityanand Mohite Vs. State of
Maharashtra6
g) Mr. Nitin Baburao Pote Vs. Kalyan Dombivli
Municipal Corporation & Ors.7
h) Prakash Kalu Gaikwad Vs. Sachin Dattatraya Pote &
Ors.8
9 The learned Senior Counsel appearing for Respondent
No.1 and learned Senior Counsel appearing for Respondent No.3 have
supported the order with reasons. The learned Senior Counsel have
read and referred the provisions of Sections 10(1D), 11 and 12 of the
MMC Act. Sections 10(1D), 11 and 12 of the MMC Act read thus:
“10 Disqualification for being a councillor,
(1) Subject to the provisions of Sections 13 and 404,
a person shall be disqualified for being elected and for being a
3 2007(2) Bom. C.R. 617
4 2001(4) BCR 635 = 2001 (4) MhLJ 643
5 2004(2) BCR 468 = 2004 (3) MhLJ 435
6 2007(6) BCR 571
7 WP NO. 5069 of 2015 dated 14 July 2015 (A.S. Oka & Revati
Mohite Dere, JJ.)
8 WP NO. 9213 of 2013 dated 9 March 2015 (A.S. Oka & A.K.
Menon, JJ.)
councillor, if such person
…............
(1D) A Councillor shall be disqualified for being a
Councillor, if such Councillor has constructed or constructs by
himself, his spouse or is dependent, any illegal or
unauthorised structure violating the provisions of this Act or
the Maharashtra Regional and Town Planning Act, 1966 or
the rules or byelaws framed under the said Acts; or has
directly or indirectly been responsible for, a or helped in his
capacity as such Councillor in, carrying out such illegal or
unauthorised construction or has by written communication
or physically, obstructed or tried to obstruct any Competent
Authority from discharging its official duty in demolishing
any illegal or unauthorised structure. Such disqualification
shall be for the remainder of his term as a Councillor from the
date of the declaration of such structure to be illegal or
unauthorised by the concerned authority under the provisions
of the said Acts or, as the case may be, from the date of
commission of the act of interference or obstruction by the
Councillor against the Competent Authority.
(emphasis added)
11 Disabilities from continuing as councillor
A councillor shall cease to hold office as such if at any
time during his term of office he,
(a) becomes disqualified for being a councillor by
reason of the provisions of Section 10;
(b)
(c )
(d)
12 Questions as to disqualification to be determined by
the Judge.
(1) If any doubt or dispute arises whether a councillor has
ceased to hold office as such under Section 11, such councillor
or any other councillor may, and at the request of the
Corporation, the Commissioner, shall refer the question to the
Judge.
(2) On a reference being made to the Judge under subsection
(1), such councillor, shall not be deemed to be
disqualified until the Judge after holding an inquiry in the
manner provided by or under this Act determines that he has
ceased to hold office.”
10 The Commissioner, in our view, wrongly held that the
Petitioner has carried out unauthorized construction, considering the
Scheme of Sections 10(1D), 11 and 12 of the MMC Act. It is
necessary for the Commissioner to come to the conclusion that as to
whether the Petitioner, being the Councillor, has carried out
unauthorized construction during his present tenure. Admittedly,
there is no such case that such construction is carried out during his
present tenure. No such action was taken in the Petitioner's earlier
tenure. The conclusion so arrived at by the Commissioner is without
any discussion on the interpretation of Section 10(1D) and whether
such construction activities were carried out during the Petitioner's
earlier tenure cannot be countenanced and cannot be the foundation
to dislodge a sitting Councillor. The Commissioner has no authority
and jurisdiction even to take such decision, without deciding the
issues/disputes for want of specific provisions, is another factor. The
drastic action of disqualification, based upon such unauthorized
construction, which is not during the present tenure, is therefore, bad
in law. Respondent No.1 cannot be permitted to add more reasons
through an affidavit in reply, in the Writ Petition, in this regard.
11 The fact that the construction is still in existence, in our
view, cannot be the reason to dislodge the elected Councillor without
following due procedure of law and by not referring the
matter/proposal to the General Body of the Corporation for making a
reference to the Judge. Issue of illegal construction was prejudged
and is subject matter of pending Suit.
12 Admittedly, it is on Respondent No.3's representation/
complaint, the hearing was fixed by the Commissioner and not by
invoking any other specific provisions before taking such action. The
Corporation has wrongly interpreted even the Judgment cited, by
holding that the Judgment passed by this Court (Coram: Anoop V.
Mohta and G.S. Kulkarni, JJ.) in Mr. Shailesh Manohar Patil Vs. Thane
Municipal Corporation & Ors.9
has not attained finality, as the Supreme
Court has issued notice. The effect and operation of that Judgment
was not stayed by the Supreme Court. In the result, the order of
setting aside the disqualification order of the Commissioner, in those
matters are in force. The Commissioner, ought not to have taken the
decision in view of above reasons to hold that the PetitionerCouncillor
has incurred disqualification, based upon the show cause
notice issued during the earlier tenure of the PetitionerCouncillor.
13 The issue of limitation about the Suit, no way sufficient to
deny the defence of the Petitioner referring to the stated and/or such
unauthorized construction. The submission is made by the learned
Senior counsel appearing for Respondent No.1 that having once
declared and/or found that the Petitioner has constructed
unauthorized building, that itself is sufficient to declare him
disqualified, is unacceptable, in the present case. The requirement of
reference and/or putting the matter to the Corporation's General Body
for the reference to the Judge, as contemplated under Section 12 of
the MMC Act, have not been complied with by the Commissioner.
9 WP No. 11070 of 2015 dated 26 February 2016
14 One thing which is clear even from the discussion and the
submission so made by the learned Senior Counsel appearing for
Respondent No.1, that there is no provision and/or procedure pointed
out whereby, the Commissioner is empowered to pass such order
formally and/or otherwise. The power given to the Commissioner to
pass such impugned order, in absence of any specific power, in our
view, affects the rights of the elected Councillor. In the present case,
there is no finding given that the unauthorized construction is made
by the elected Councillor Petitioner during running tenure, after
being elected as Councillor.
15 The Petitioner has participated and got elected in the
election, inspite of the background of earlier notice about the
unauthorized structure. Having once permitted the Petitioner to
participate in the election, the submission revolving around these
Sections that he ought not to have been permitted and/or has already
incurred disqualification even on the date of his participation in the
election, is also unacceptable, as admittedly, the Respondents never
took effective steps during the concerned tenure at earliest.
Therefore, invocation of these provisions after the new election is
unjust, impermissible and bad in law, in the facts of the case.
16 Admittedly, as recorded above, no show cause notice of
any kind given to the Petitioner after he got elected in view of the
fresh election. The reasons so given for disqualifying the Petitioner
are admittedly based upon the allegations in the show cause notice
given during his earlier tenure, so referred above. There is no finding
given by the Commissioner before passing such drastic action/order
against the Petitioner that the Petitioner has made such unauthorized
construction being a Councillor during his current tenure. In absence
of this specific finding also, in our view, there is no question to take
action and/or pass such impugned order.
17 The scheme of Section 12 of the MMC Act, so referred
above, itself provides that in case of doubt and/or dispute, it is
necessary for the Councillor and/or the other person and/or by the
Commissioner to refer the matter to the Corporation's General Body/
Corporation, so that the appropriate decision can be taken as to
whether to take/refer this issue to the Judge under Section 12 of
MMC Act. Admittedly, there is no such procedure followed in this
matter. In absence of any specific power, as recorded above, without
making reference and/or seeking approval from the General Body, the
impugned order has been passed by the Commissioner. We cannot
overlook the mandate of Section 12, which provides that in case of
doubt and/or disputes, it is necessary to refer the issue to the Judge so
that appropriate order and/or decision can be taken on all aspects,
revolving around, whether the structure is unauthorized and/or
whether the construction was constructed during the tenure and/or
whether the Petitioner has incurred disqualification, as referred above.
All these provisions, in our view, are necessary to be followed prior to
the person who is elected in such election, incurs disqualification.
Such drastic action/order, in our view, just cannot be passed without
giving full opportunity to the sitting Councillor, at every stage. As
noted, there are various lacunas before passing the impugned order in
question. The initiation of such steps, therefore, in our view, is
impermissible, contrary to law and unsustainable.
18 Another factor is that Section 12 itself contemplates that
once the matter is referred, there shall not be any deemed
disqualification, to such Councillor. The effect is, even if the
Commissioner declare or pass such order, but issue and/or doubt if
raised and referred to the learned Judge, that itself automatically
protects the interest of the Councillor, as the impugned declaration
cannot be given effect, unless the learned Judge takes decision finally.
The scheme of this provisions therefore, need to be accepted in the
interest of all, including the public at large who have elected the
Councillor.
19 Therefore, taking over all view of the matter and
considering the scheme of the Act and the Judgments so cited, in our
view, the order passed by the Commissioner is unsustainable and
required to be interfered with.
20 In the result, the following order:
ORDER
a) Writ Petition is allowed in terms of prayer clause
(a), which reads thus
(a) this Hon'ble Court may pleased to issue
a Writ of Certiorari or any other
appropriate Writ in the nature of
Certiorari, order or direction directing
to call for recording proceeding
pursuant to which Order no. KDMC/ D
Ward / UCR / 123 datd 23/3/2016
passed by Respondent no.1 (Exh. 'G' to
the petition) thereby declaring the
Petitioner has incurred disqualification
as the Councillor from Ward No.42 of
Kalyan Dombivli Municipal
Corporation under Section 10(1D) of
Maharashtra Municipal Corporation
Act and after examining legality,
validity and propriety of the impugned
order, the same may be pleased to
quash and set aside.”
b) Rule is made absolute, accordingly.
c) There shall be no order as to costs.
21 The learned counsel appearing for Respondent No.1, seeks
stay of this judgment and order passed in open Court. Considering
the issue so involved and the reasons so recorded above, no case is
made out for such stay. The oral request for stay is accordingly
rejected.
(A.A. SAYED, J.) (ANOOP V. MOHTA, J.)
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