Bombay High Court
Vitthal Nityanand Mohite And Ors. vs State Of Maharashtra And Ors. on 7 August, 2007
Equivalent citations: 2007 (6) BomCR 571
Author: J A.H.
Bench: J A.H., C R.C.
JUDGMENT
Joshi A.H., J.
1. Rule. Rule is made returnable forthwith and is called for final disposal by consent.
2. Heard.
3. The petitioners have moved for a Writ of Quo Warranto seeking a declaration that the respondent No. 4 ceases to be a Councilor and consequently as a Mayor too, in view of the Order passed by the Commissioner, Municipal Corporation, Akola, dated 15th January, 2007, declaring that having involved in the Act of illegal construction, the respondent No. 4 stands disqualified under Section 10[1-D] of the Bombay Provincial Municipal Corporations Act, 1949.
4. Learned Advocate for the petitioners placed reliance on the following judgments, namely:
[a] (Bhaskar Timappa Shetty v. Caste Scrutiny Committee and Ors.) 2007(2) Bom.C.R. 777 : 2007(2) All.M.R. 602.
[b] (Datiatruya S/o Ramrao Thorat v. The State of Maharashtra and Ors.) 2003 (Supp.) Bom.C.R. (A.B.) 110 : 2002(4) All.M.R. 807, and
[c] (Edwin Francis Britto v. Municipal Corporation of Greater Mumbai and Ors.) .
According to learned Advocate Mr. Darda, the declaration under Section 11 operates automatically and reference under Section 12 is not required.
5. The petition is opposed on the grounds that:
[a] The order of disqualification does not operate by itself, since Section 12 of the said Act excludes such automatic disqualification.
[b] The observation contained in the order of Municipal Commissioner in Paragraph 2 attributing an admission as to illegality in the construction made by respondent No. 2, is factually incorrect.
[c] It is also alleged that the petitioners have not produced the document containing said admission, which was necessary, particularly when the respondent No. 4 has already disputed legality and correctness of Order of the Commissioner.
[d] Petition under Section 12 of the said Act before Civil Judge [Senior Division], Akola, which is filed by respondent No. 4 is pending as Misc. Judicial Case No. 11 of 2007, in which the question as to whether he is disqualified is sub-judice.
6. Learned Advocate Mr. G.B. Lohiya for respondent Nos. 3 and 4 placed reliance on the following judgments:
[a] (Jaspal Singh Arora v. State of M.P. and Ors.) .
[b] (Surjitsing s/o Jeevansing Girniwale v. The Commissioner, Nanded Waghala Municipal Corporation) 2007(2) Bom.C.R. (A.B.)617 : 2007(2) All.M.R. 554,
[c] (Sajeda Nihal Ahmed v. Malegaon Municipal Corporation, Malegaon and Ors.) ,
[d] (Madhukar Deoman Patil and Ors. v. State of Maharashtra and Ors.) , and
7. Though a large number of judgments have been relied upon, it shall suffice to say that the petitioners' reliance on the judgments of two Division Benches of this Court, namely [1] Bhaskar T. Shetty, and [2] Dattatraya Thorat [cited supra] is misplaced, in as much that both these judgments are rendered by this Court under Section 10[1-C] which is a class apart. Though titled as a disqualification, in fact, it refers to lack of eligibility which the councilors concerned claim, but were found not to have it, as the caste claim/tribe claim was invalidated by an authority created under a statute, which excluded any further enquiry. By virtue of finality attached to the decision of the Committee under Section 7[2] of the Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes [Vimukta Jatis], Nomadic Tribes, Other Backward Classes 6 and Special Backward Category [Regulation of Issuance and Verification of] Caste Certificate Act, 2000, and further by virtue of Section 10[1] and Section 10[4] of the said Act, the holder of the post stood disqualified to continue to hold the office by the very fact of invalidation of the caste claim.
In view of this legal position, any further and detailed discussion as to why the judgments relied upon by the learned Advocate for the petitioners do not apply, is considered time consuming, without any gain and hence not necessary. In the judgment in case of Edwin Francis Britto [supra], provision corresponding to present Section 12 has not been adverted to.
8. In contrast, the judgments relied upon by the respondent Nos. 3 and 4 govern the issue directly. If the scheme of Sections 10, 11 and 12 of the Bombay Provincial Municipal Corporations Act, 1949 is considered together, it has to be construed in following manner:
[i] Section 10 of the Act defines and prescribes what disqualification means.
[ii] Section 11 contemplates formation of a prima facie opinion by the Executive or any other person as to incurring of a disqualification by a Councilor; and,
[iii] Section 12 creates a Forum for declaration with judicial adjudication thereof, and further that upon such declaration by the Civil Judge, the disqualification becomes operative.
9. In the aforesaid background, on the facts of the case, when the respondent No. 4 apprehended that due to the declaration made by the Commissioner, he would be disqualified, he probably did not want to run the risk of incurring a disqualification at the hands of an Executive and, has, therefore, preferred a petition of reference under Section 12, which is admittedly pending.
10. Particularly in the background of pendency of said reference petition under Section 12, we find it wholly unnecessary to deal with the said issue in a writ petition.
11. Admittedly, objection to candidature of the respondent No. 4 was rejected and the matter of disqualification is now in the hands of a Court of competent jurisdiction. We, therefore, find that the ends of justice would meet if we direct the Civil Judge (Senior Division], Akola, to hear and decide said reference, i.e. Misc. Judicial Case No. 11 of 2007 expeditiously.
12. With the above findings, we discharge the Rule, however, we order as follows:
[a] The Civil Judge [Senior Division], Akola, on whose file Misc. Judicial Case No. 11 of 2007 is pending, is directed to hear and decide the same as expeditiously as possible, and in any case within four months from the date of receipt of Writ of this Court.
[b] Office to issue a Writ urgently.
[c] The respondent No. 4 is directed to appear before the Civil Judge [Senior Division], Akola, on 27th August, 2007 for co-operating in the proceedings and proceed with the hearing.
[d] Parties shall bear their own costs.
