Shri Rajan Ramnath Patil vs The State Of Maharashtra & Ors.
2001 Latest Caselaw 187 Bom

ORDER

1. Rule. Rule made returnable forthwith. The learned Assistant Government Pleader waives service for the Respondent Nos. 1 to 3. By consent, the Petition is taken up for hearing. We have heard the learned Counsel for the respective parties.

2. The Petitioner, an elected member of the Roha Municipal Council (hereinafter referred to as "Council" only), has challenged the order dated 16th February, 2001 issued by the Respondent No. 2, viz.. the Collector, Alibag, under Section 44(1)(b) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (hereinafter referred to as "the said Act") thereby, disqualifying him as a member of the Council.

The last election of the said Council was held in 1996 and the Petitioner was elected as Councillor. The Petitioner was also elected as a Member of the Education Committee constituted under Section 63 of the said Act. This committee consist of 10 Members. The election of the Petitioner and other elected members of the Education Committee was published in the Government Gazette dated 12th March, 1999. The Petitioner was thereafter elected as a Chairman of the said Committee and was holding charge till the impugned order was passed.

3. The proceedings were initiated against the Petitioner under Section 44(1)(b) of the said Act by issuing a notice to him on 2nd December, 2000. The ground enumerated in the said notice was that the Petitioner diverted Rs. five lacs of the Primary Education Fund as fixed deposit in the Kalasgiri Nagari Co-operative Credit Society in contravention of Section 46 of the Bombay Preprimary and Primary Education Act, 1947 (hereinafter referred to as the "Primary Education Act"). It is further mentioned in the notice that the Petitioner, being a Chairman of the aforesaid Co-operative Credit Society, has an interest in the said society and the society has not been approved by the State Government as contemplated under Section 46 of the Primary Education Act. By this notice, the Petitioner was called upon to show cause as to why the action under section 44(1)(b) of the said Act should not be taken against him and ten days time was granted to the Petitioner to give his reply to the notice.

The Petitioner, by his reply dated 12th December, 2000, explained that he is only an elected Chairman of the aforesaid Co-operative Credit Society and he does not have in it any personal interest. He has also quoted the instances of depositing the municipal funds in the Cooperative Banks and has claimed that there is a practice of keeping the municipal funds as a fixed deposit in Co-operative Banks also. According to the Petitioner, the decision of diverting Rs. five lacs in the Co-operative Credit Society as a fixed deposit was of the Education Committee and on 20th December, 2000 the said amount with interest has now been returned to the Council.

The Respondent No. 2 after considering the reply of the Petitioner dated 12th December, 2000 passed an order on 16th February, 2001 thereby disqualifying the Petitioner under Section 44(1)(b) read with Section 16(3)(b) of the said Act. This order of the Collector is under challenge in the instant petition.

4. In the present petition, we propose to consider the arguments advanced by the learned Counsel appearing for the parties only on the question of law involved in the petition. We are, therefore, not inclined to entertain the submissions of the learned Counsel appearing for the Petitioner whereby he has attributed political motive behind the impugned order. The issue raised for our determination is as follows:

"Whether the Respondent No. 2 was justified in disqualifying the Petitioner under Section 44(l}(b) read with Section 16(3)(b) of the said Act, assuming that the allegations against the Petitioner are true and correct"?

At this stage only, we would like to make ourselves clear that we are not expressing any opinion as to whether the allegations are true or false. Since the Petition can be disposed of by considering the aforesaid issue based on the legal submissions made by the learned Counsel appearing for the parties, we are not going into the factual aspect about the allegations made against the Petitioner.

5. Section 46(1) of the Primary Education Act provides investment of the primary education fund either in the Government Treasury or in the Bank to which the Government Treasury business has been made over or any such other Banks or Co-operative Societies registered under the Maharashtra Co-operative Societies Act, 1960 as may be approved by the State Government. It is not disputed before us that the credit society in which Rs. five lacs of Education Committee were deposited, although registered under the Maharashtra Co-operative Societies Act, was not approved by the State Government. It is also not disputed that the Petitioner is a Chairman of the said Society and thereby could be called to have direct or indirect interest in the said Co-operative Credit Society. The Petitioner could not dispute that when the Resolution for depositing the amount of Rs. five lacs of the Primary Education Fund was passed by the Committee, chaired by the Petitioner on 11th June. 2000, the aforesaid Co-operative Credit Society was not born in the eyes of law. However, the said Co-operative Credit Societywas registered on21stJuly, 2000 and the amount of Rs. five lacs was deposited by the Education Committee on 14th August, 2000 for a term of one year. Our attention was also drawn to the fact that the said amount was again rediverted to the Council on 20th November. 2000 by the Petitioner probably after realising the error committed by him. In the light of these facts, we were required to examine the issue involved in the present Petition.

6. Section 44 of the Act, empowers the Respondent No. 2 to disqualify a Councillor, for the disqualifications specified in clauses (a), (b), (c), (e) and (g) of sub-section (3) of Section 16. Sub-section (b) of Section 44 under which the Petitioner has been disqualified reads as follows :

"44. (1) A Councillor shall be disqualified to hold office as such, if at anytime during his term of office, he -

(a) xx xx

(b) as a Councillor or as a member of any committee of the Council votes in favour of any matter in which he has directly of indirectly by himself or his partner any such share or interest as is described in clauses (a), (b), (c), (e), and (g) of sub-section (3) of section 16, whatever may be the value of such share or interest or in which he is professionally interested on behalf of a client, principal or other person."

This sub-section provides that a Councillor or a Councillor as a member of any committee of the Council any time during his term of office, votes in favour of any matters in which he has direct or indirect interest as described in clauses (a), (b), (c), (e) and (g) of sub-section (3) of Section 16 incurs disqualification to hold office as Councillor. Section 44(1)(b) is not independent. It provides that the Councillor, needs to have share or interest in the matter he votes in its favour "as is described" in the aforesaid clause of Section 16(3) of the said Act. In other words unless it is proved that the Councillor votes in favour of any matters in which he has direct or indirect interest as is described in the aforesaid clauses of sub-section (3) of Section 16, he does not acquire disqualification contemplated under Section 44(1)(b). This takes us to Section 16 of the said Act to consider whether clause 3(1)(b) of that section has been attracted so as to call the petitioner, a Councillor contemplated under Section 44(1)(b). The relevant clause of Section 16underwhtch Petitioner has been disqualified, namely sub-section 3(b) reads as follows :-

16(3) A person shall not be deemed to have incurred disqualification under clause (f) of sub-section (1) by reason of his -

(b) having a share or interest in any Company or Co-operative Society which contracts with or be employed by or on behalf of the Council."

This provision essentially deals with the disqualifications for becoming a Councillor whether by election or nomination. However, Section 44(1)(b) provides that the disqualifications specified in Section 16 are available to declare a Councillor disqualified to hold office at any time during his term of office. In view of this we are unable to accept the submission of the learned Assistant Government Pleader appearing for the Respondent Nos. 1 to 3 who contended that the operative part of the impugned order is not happily worded and taking recourse to Section 16(3)(b) may not be correct because section 16 speaks about the disqualifications for becoming a Councillor and not declaring a Councillor disqualified.

The plain reading of Section 16(3)(b)is absolutely clear, unambiguous and admits only one meaning. Sub-section (3) of Section 16 speaks about an exception under which the person shall not be deemed to have incurred disqualification under clause (1) of sub-section (1) of Section 16. By reason of having any share or interest contemplated under the clauses of sub-section (3) by itself is not sufficient to incur any disqualification. However, if the Councillor, as a Councillor or as a Member of any Committee of the Council votes in favour of any matters in which he has directly or indirectly any share or interest as is prescribed in clauses (a), (b), (c), (e), and (g) of sub-section (3) of Section 16 irrespective of the extent of interest does incur disqualification under Section 44(1)(b). In other words, what is necessary for acquiring disqualification under Section 44(1)(b) is that the Councillor having any share or interest in Co-

operative Society which contracts with the Council and if such Councillor votes in favour of such society In the meeting of the Council or Committees would be sufficient to incur disqualification. In the instant petition, what is lacking is this that the Co-operative society to which the primary education fund has been diverted, does not contract with or is employed by or on behalf of the Council. In this view of the matter, we do not find that the Respondent No. 2 was not justified in taking action against the Petitioner under Section 44(1)(b) read with section 16(3)(b) of the said Act and therefore the impugned order deserves to be quashed and set aside. The learned Counsel appearing for the Respondents fairly conceded that the Co-operative Credit Society in which the Petitioner diverted Rs. five lacs of the Education Committee, did not have any connection with the Council such as of taking or giving contract with or on behalf of the Council. The language of Section 44(1)(b) and Section 16(3)(b) is absolute clear, plain and unambiguous and is reasonably susceptible to only one meaning as recorded hereinabove.

We are, therefore, constrained to record that the impugned order is the classic example of non-application of mind which according to us is per-se illegal and without jurisdiction. The Petitioner cannot be called a Councillor as contemplated under sections 44(1)(b) and 16(3)(1)(b) of the said Act.

7. We would also like to deal with the preliminary objection raised by, the learned Assistant Government Pleader appearing for the Respondent Nos. 1 to 3. He invited our attention to sub-section 4 of Section 44 of the said Act and submitted that under this provisions, the remedy is made available to the person aggrieved by the decision of the Collector to approach the State Government in Appeal within 15 days from the receipt of the decision.

We have already recorded our finding on the main issue involved in the present petition, holding that the impugned order is, per se, illegal and without Jurisdiction. We, therefore, can interfere in our writ jurisdiction to quash and set aside such orders. An alternate remedy has been consistently held by the Supreme Court not to operate as a bar in atleast three contingencies, namely, where a writ petition has been filed for enforcement of any of the fundamental rights or where there has been a violation of principles of natural Justice or where an order or proceedings are wholly without jurisdiction. In the instant petition, the impugned order is without Jurisdiction and it further violates the legal right of the Petitioner arbitrarily to remain in office which he acquired by election. In the circumstances, the impugned order deserves to be quashed and set aside.

8. In the result, we set aside the impugned order passed by the Respondent No. 2 dated 16th February, 2001. However, we make it clear that this order will not preclude Respondent Nos. 1 to 3 to take action against the Petitioner, if he has committed breach of the provisions of the Bombay Pre primary and Primary Education Act, 1947 or of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965, as may be advised. Rule is accordingly made absolute with no order as to costs.

An ordinary copy of this order authenticated by the Personal Secretary may be made available to the parties.