Smt. Noorjahan M. Aslam Ansari vs The State Of Maharashtra And Ors.
2004 Latest Caselaw 97 Bom

JUDGMENT

H.L. Gokhale, J.

1. Heard the learned Counsel for the parties. Rule. Rule is made returnable forthwith.

2. The Petitioner is aggrieved by the order dated 27th May 2003 passed by the Commissioner Bhiwandi Nizampur City Municipal Corporation-Respondent No. 3. This order declares that the Petitioner has ceases to be a Member of the Municipal Corporation in view of the provisions of Section 10(1)(i) of the Bombay Provincial Municipal Corporations Act, 1949 (for short, "BPMC Act"). This amendment came into force on 12th September 2000 and it provided that a Corporator will be disqualified, if he or she has more than two children.

3. The grievance of Mr. Dhakephalkar appearing for the Petitioner, apart from the submissions on merits, is that under the amended Act, the Authority to decide such a dispute is a Judge of the Court of Senior Division. This submission is made on the basis of Section 12 of the BPMC Act read with definition of a Judge as occurring under Section 2(29) of the BPMC Act. Section 12 of this Act reads as follows:-

"12. (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 Sub-section (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."

From this section, it is clear that where any doubt or dispute has arisen as to whether a councillor has ceased to hold the office as such under Section 11, then the councillor or any other councillor may, and at the request of the Corporation, the Commissioner shall refer the question to the Judge.

4. Mr. Dhakephalkar appearing for the Petitioner has denied that the Petitioner has given birth to more than two children, against which the case of Respondent No. 4 represented by Mr. Ghaisas is that, that is so. Inasmuch as the dispute has arisen, in view of these submissions of both the parties, the Commissioner was expected to refer the dispute to a Judge of the Court of Senior Division. The sections do not give the power to decide a controversy himself. That apart, Mr. Dhakephalkar has submitted that the Petitioner did not receive even a copy of the Complaint.

5. Mr. Ghaisas appearing for Respondent No"4 tried to submit that it is the Commissioner who has the authority to decide. Having read Sections 11 and 12 of the BPMC Act, in our view, the jurisdiction will lie with the Judge of the Senior Division of the concerned area. In the circumstances, we asked all the Counsel appearing for various parties as to whether they are agreeable that the matter be referred to the Judge, Senior Division and all of them gave their express consent. In view of this understanding arrived at, Mr. Agarwal appearing for Respondent No. 3 states that the Commissioner will forward the Complaint dated 16th April 2003 as also the supporting material to the Court of Civil Judge, Senior Division, Thane. On receiving the papers, the learned Judge' will issue a notice to the Petitioner and the Petitioner will have the opportunity to file her reply. Thereafter the matter will be decided in accordance with the law and on the evidence to be led by both the parties, preferably within six months from the date of receipt of the papers from the Commissioner, Bhiwandi-Nizampur City Municipal Corporation. Mr. Agarwal states that the papers will be lodged with the concerned Judge within one week from the receipt of the authenticated copy of this order.

6. In the circumstances, the order dated 27th May 2003 passed by the Commissioner, Bhiwandi Nizampur City Municipal Corporation, stands set aside. Rule is made absolute as above.

7. Parties to act on an authenticated copy of this order.