Madhukar Deoman Patil, Etc. vs The State Of Maharashtra And Ors., ...
2004 Latest Caselaw 808 Bom

JUDGMENT

A.M. Khanwilkar, J.

1. The short question that arises for consideration in the present writ petitions is whether the Commissioner is competent to pass order of disqualification on his own against the elected Councillors.

2. Briefly stated, in all these matters, the Petitioners are duly elected Councillors of the Malegaon Municipal Corporation. Respondent No. 3 - Commissioner - issued show cause notice to each of them, in all 14 elected Councillors on December 6, 2003. The show cause notice essentially is founded on the allegation that the respective Councillors have incurred disqualification in terms of Section 10(1)(f) of the Bombay Provincial Municipal Corporations Act, 1949. The respective Councillors, Petitioners herein, filed their explanation to the said show cause notice. The Commissioner was not satisfied with the explanation offered by the Petitioners. However, instead of making reference of the issue as to whether the concerned elected Councillors have incurred disqualification to the Judge, as was required under Section 12(1) of the Act, the Commissioner himself proceeded to pass order of disqualification on 31st March 2004 against each of them. Those orders are subject matter of challenge in all these companion writ petitions.

3. Having considered the rival submissions, I have no hesitation in taking the view that the Commissioner has acted without jurisdiction in passing the order of disqualification, instead of making reference to the Judge as was required under Section 12(1) of the Act. Indeed, the allegation against each of the Petitioners is referable to clause of disqualification under Section 10(1) of the Act. However, after inviting explanation, the Commissioner ought to have made reference to the Judge as per Section 12(1) of the Act. It is apposite to advert to Section 12 of the Act, which reads thus :

"(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 matter provided by or under this Act determines that he has ceased to hold office."

Instead of following that procedure, the Commissioner on his own has proceeded to pass order of disqualification, which is obviously beyond his authority. Reliance is rightly placed by Shri Shimpi, learned Counsel for the Petitioners on the decision of Division Bench of this Court in the case of Martin Nirmal Moresh v. State of Maharashtra and Ors., as reported in 2001(4) Mh.L.J. 643. The principle stated in this decision will apply with full force to the fact situation of the present case. This Court has taken the view, while construing the analogous provisions of the City of Nagpur Corporation Act, 1950, that the Municipal Commissioner has no authority to decide the question of disqualification of councillor, but it is only the Election Tribunal which is authorised to decide that question. Going by the scheme of the present enactment, namely, the Bombay Provincial Municipal Corporations Act, the Commissioner is obliged to make reference under Section 12(1) of the Act to a Judge. The expression 'Judge' has been defined by the Act in Section 2(29) to mean "in the City of Pune the Judge of the Court of Small Causes* and in any other City the Civil Judge (Senior Division) having jurisdiction in the City". The reference under Section 12(1) of the Act will necessarily have to be made to the appropriate Judge as defined under Section 2(29) of the Act.

4. Counsel for Respondent No. 1 has, however, placed reliance on another decision of the Division Bench of our High Court in the case of Sopan Genu Dhavale v. Pune Municipal Corporation and Anr., reported in 2002(9) Mh.L.J. 205. However, that decision is not an authority on the issue that arises for consideration in the present case. Instead, the decision pressed into service on behalf of the Petitioners in the case of Martin Nirmal Moresh (supra) is the direct authority on the point. In the case of Sonu Genu Dhavale (supra), the question was entirely different, where the show cause notice in disciplinary proceedings for order of punishment was issued by the Municipal Commissioner to the employee of the Corporation. That is not the question on hand. Whereas the issue in the present case will have to be decided on the basis of express provisions contained in the Act, which are already adverted to above.

5. Counsel for Respondent No. 3 made an unsuccessful attempt in persuading me that no fault can be found with the decision of the Commissioner, especially when the Commissioner has acted on the opinion of the State Government given by the Deputy Secretary, Urban Development Department, State of Maharashtra, on 7th February 2004. It is not possible to countenance that submission. The said opinion cannot be the basis for deciding the matter on hand, especially in view of the express provisions and the decision of our High Court, referred to earlier. Learned Counsel further submitted that, in fact, there is alternative remedy available to each of the Petitioners in filing reference before the concerned Judge. This submission, to my mind, only deserves to be stated to be rejected. The fact remains, as already mentioned earlier, that the Commissioner has acted without jurisdiction in passing order of disqualification against each of the Petitioners herein. If it is so, this Court is duty bound to correct the manifest error committed by the Commissioner, for which reason these Petitions would succeed. The impugned orders passed by the Commissioner dated 31st March 2004 are set aside in each of these petitions. It is, however, made clear that it will be open to the Commissioner to make reference to the Judge to get the issue finally decided, if so advised, in accordance with law.

6. Petitions disposed of on the above terms. No order as to costs.

All concerned to act on the copy of this order duly authenticated by the Court Stenographer of this Court.