Sayali Sanjay Malvankar vs Chief Officer, Vengurla ...
2004 Latest Caselaw 105 Bom

JUDGMENT

D.Y. Chandrachud, J.

1. Rule. Returnable forthwith. The learned counsel for the respondents waive service. By consent petition is taken up for hearing and final disposal.

2. The petitioner was elected as a Municipal Councillor of the Vengurla Municipal Council at an election held on 2nd December, 2001. In this proceeding the petitioner has called into question an order passed by the Collector holding that the petitioner was disqualified from acting as Councillor under the provisions of Section 44(1)(e) of the Maharashtra Municipal Councils. Nagar Panchayats and Industrial Townships Act, 1965 ("the Act"). Section 44(1)(e) provides thus :

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

(e) has constructed or constructs by himself, his spouse or his dependent, any illegal or unauthorized structure violating the provisions of this Act, or the Maharashtra Regional and Town Planning Act, 1966 (Mah. XXXVII of 1966) or the rules or bye-laws framed under the said Acts; or has directly or indirectly been responsible for, or helped in his capacity as such Councillor in, carrying out such illegal, or unauthorized 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 unauthorized structure;)

and he shall be disabled subject to the provisions of Sub-section (3) from continuing to be a Councillor and his office shall become vacant;

3. The disqualification which has been attracted in the present case arises in the context of the following facts :

On 23rd August, 2002 the petitioner's spouse Mr. Sanjay Ramakant Malvankar submitted an application to the Chief Officer of the Vengurla Municipal Council stating that a building bearing House No. 217 owned by him within the jurisdiction of the Municipal Council had become dilapidated and that, he intended to carry out the work of repair. The nature of the work of repair that was sought to be carried out was not disclosed. No plan reflecting the nature of the proposed work of repair was produced. In fact, the application was in the form of a letter of the petitioner's husband proposing to carry out repair to the building in question.

On 17th September 2002 the Municipal Council responded to the request of the petitioner and called upon him to fulfil several requisitions in order that his request could be considered. The letter of the Municipal Council noted that the application was not in the prescribed form, the 7/12 extract had not been furnished; the Revenue/City Survey map had not been submitted, the consent of other co-owners, if any was required to be produced and that no plan or elevation in respect of the proposed work of repairs had been submitted.

4. The allegation is that the petitioner's spouse did in fact, carry out the construction of a shed and certain other unauthorized construction for the purpose of carrying on the business of a Wedding Hall therein. The Municipal Council thereupon issued a notice under Section 53(1) of the Maharashtra Regional and Town Planning Act, 1966 ("M.R.T.P. Act") on 22nd November. 2002 calling upon the petitioner's husband to remove the work which had been unauthorizedly carried out within thirty days.

5. Under the provisions, of Sub-section (3) of Section 53 any person aggrieved by a notice issued under Section 53(1) may within the period specified in the notice apply for permission under Section 44 for the retention on the land inter alia of any building or works to which the notice relates. In such an event, pending the final determination of the application, the mere notice itself shall not affect the retention of the buildings or works.

6. Now it is common ground that no application was preferred within a period of 30 days of the receipt of the notice dated 22nd November, 2002. On 4th January, 2003 which was beyond the period of 30 days an application was submitted under Section 44 of the M.R.T.P. Act, 1966. That application was rejected by the Municipal Council on 13th January, 2003. A remedy of filing an appeal is provided under Section 47 of the M.R.T.P. Act against an order granting the permission on conditions or refusing permission under Section 45 of the Act.

7. In the present case, it is common ground that no appeal was filed against the order dated 13th January, 2003. Eventually on 31st May, 2003 the Sub-Divisional Officer, Sawantwadi, passed an order for the demolition of the structure. Against the order of demolition an appeal was filed before the Collector under the Maharashtra Land Revenue Code, in which the order of demolition came to be stayed on 11th July, 2003 pending the disposal of the appeal.

8. The facts which are undisputed are that an unauthorized construction has in fact, been carried out by the husband of the petitioner for the purpose of conducting a marriage hall. The petitioner does not possess any permission and none is forthcoming before the Court, The application for the grant of permission which was submitted on 23rd August, 2002 was for carrying out the work of repair to the existing building and even that application did not disclose the fact that a marriage hall was to be constructed.

9. In response to the communication dated 17th September, 2002 of the Municipal Council raising various requisitions, including the fact that no plan of the proposed work of repair had been submitted, no application was made to the Municipal Council and the work of construction was carried out unauthorisedly. Thereupon the Municipal Council was constrained to issue a notice under Section 53(1). Within the period which is prescribed by the aforesaid notice, no application for retention or regularisation was submitted as contemplated by Section 53(3) of the M.R.T.P. Act, 1966. An application was eventually submitted on 4th January 2003. It was rejected by the Municipal Council on 13th January 2003. The order of rejection has not been challenged by way of availing of the remedy of an appeal under Section 47 of the M.R.T.P. Act. Against the order of demolition passed by the SDO, on 31st May 2003, an appeal has been filed under the Land Revenue Code. A notice to show cause was issued to the petitioner by the Collector on 17th July, 2003. Time was granted to the petitioner to submit a reply until 28th July, 2003. On the aforesaid date the petitioner appeared through an advocate and sought extension of time to file a reply. Time was accordingly granted until 5th August, 2003. On 5th August, 2003, a request for a further adjournment was made which was refused whereupon the petitioner filed a written reply of submissions through her advocate. Upon considering the reply the Collector passed an order of disqualification dated 22nd August, 2003. The order dated 22nd August, 2003 was received by "the petitioner on 10th September, 2003. Under Section 44(4) of the Act, a person aggrieved by the decision of the Collector has to submit an appeal within a period of fifteen days. The appeal in the present case was admittedly filed beyond the period of limitation on 6th October, 2003. There was no application for condonation of delay, even assuming such a power to condone the delay does exist. Before the Commissioner, the record shows that several adjournments were sought. The matter was adjourned on 21st October, 2003, 21st November, 2003, 19th December, 2003 and 30th December, 2003 since the petitioner was absent. The petitioner was not present when the matter was finally placed on 30th December, 2003. The Commissioner has dismissed the appeal as having been filed beyond the period of limitation.

10. The Commissioner, in my view, was entirely justified in taking the view that the appeal could not be entertained since it was filed beyond the period of limitation. However, I have permitted the learned counsel appearing on behalf of the petitioner to place before the Court the facts of the case and all the material in order to enable the Court to determine on merits whether the disqualification as provided under Section 44(1)(e) was attracted. A compilation of documents has been filed before the Court on the basis of which the facts, as stated in the earlier part of this judgment, have been culled out by counsel for the petitioner. On the basis of the available material it is evident and clear that the disqualification has been attracted under Section 44(1)(e). This is a case where the petitioner's spouse has carried out the construction of an illegal and unauthorized structure in violation of the provisions of the M.R.T.P. Act 1966. The construction was carried out in brazen defiance of law without the permission of the Municipal Council. The disqualification is, therefore, clearly attracted.

11. While order of disqualification cannot be faulted, the Collector Sindhudurg has in the course of his directions held that the petitioner shall stand disqualified for a period of five years. Now insofar as Section 44 is concerned what it provides is that the Coucillor shall be disqualified, to hold office as such if at any time during the terms of his office, he attracts a disqualification for the reasons set out, in Clauses (a) to (e) of Sub-section (1). Such a councillor is disabled subject to the decision of the Collector under Sub-section (3) from continuing to be a Councillor and his office shall become vacant. In the absence of a statutory power the Collector could not have disqualified the petitioner for a further period of five years. Section 16 of the Act contains various grounds of disqualification and for instance, in the context of some those disqualifications relating to a conviction for certain offences, a specified bar for a stipulated period has been laid down. Similarly a disqualification for a certain stipulated period is provided in cases which are covered by Sub-sections (4-A) and (1-B) of Section 16(1). A disqualification for five years is provided under Section 42(4) where a Councillor is removed by Government for misconduct in the discharge of duties or for disgraceful conduct during the term of office. Whether the petitioner can lawfully contest an election to the Municipal Council in the future, so long as the unauthorised construction continues to exist need not be decided, upon in these proceedings. That issue will be considered in appropriate proceedings should it arise. Without expressing any view thereon, this petition shall stand allowed to the limited extent of setting aside the direction of the Collector Sindhudurg that the petitioner shall not be eligible to contest an election for a period of five years in the future.

12. The finding of the Collector that, the petitioner stands disqualified under Section 44(1)(e) and that the office of the Councillor which was held by the petitioner would fall vacant, is confirmed. The respondent authorities would, therefore, be at liberty to hold a fresh by election for filling up the casual vacancies as provided under Section 48 of the Act. The Court is informed that the election has already been notified and is to be held on 1st February, 2004.

13. The petition shall stand allowed to the limited extent indicated hereinabove and shall stand disposed of accordingly. There shall be no order as to costs.

14. All concerned to act on copy of this order duly authenticated by the Sheristedar/Personal secretary of this Court.