Bombay High Court
Rajendra Narayanji Narnaware vs The Regional Director on 10 December, 2013
Bench: A.P. Bhangale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.6074 OF 2013
1. Rajendra Narayanji Narnaware,
Councilor, Prabhag No.1, r/o.
Ward No.1, Panchsheel Nagar,
Khapa Road, Saoner, Tah. Saoner,
Distt. Nagpur.
2. Arvind Tularamji Lodhi,
Councilor, Prabhag No.1, r/o.
Ward No.2, Civil Lines, Railway
Station Road, Saoner, Tah.
Saoner, Distt. Nagpur.
3. Sau. Vandana Shriramji Dhote,
Councilor, Prabhag No.1, r/o.
Ward No.1, Panchsheel Nagar,
Khapa Road, Saoner, Tah.
Saoner, Dist. Nagpur.
4. Sau. Sushma Laxmikant Diwate,
Councilor, Prabhag No.2, r/o.
Ward No.2, Civil Lines,
Saoner, Tah.Saoner,
Distt. Nagpur.
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5. Sau. Vaishali Rameshwar Uikey,
Councilor, Prabhag No.2, r/o.
Ward No.2, Civil Lines, Saoner,
Tah.Saoner, Distt. Nagpur.
6. Tejsingh Shyamrao Saoji,
Councilor, Prabhag No.2, r/o.
Ward No.6, Main Road,
Saoner, Tah.Saoner, Distt.
Nagpur.
7. Shailesh Prakashmal Jain,
Councilor, Prabhag No.2, r/o.
Ward No.6, Main Road, Saoner,
Tah. Saoner, Distt. Nagpur.
8. Ku. Surajkala Neelkanth Sevake,
Councilor, Prabhag No.3, r/o.
Ward No.16, Pahelepar, Saoner,
Tah.Saoner, Distt. Nagpur.
9. Ravindra Shyamraoji Thakur,
Councilor, Prabhag No.4, r/o.
Ward No.16, Pahelepar,
Saoner, Tah.Saoner, Distt.
Nagpur.
10.Ujwalkumar Wasudeorao Bagde,
Councilor, Saoner, Tah.
Saoner, Distt. Nagpur. .......... PETITIONERS
// VERSUS //
1. The Regional Director,
Municipal Administration,
Nagpur Division, Nagpur.
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2. The Collector,
Nagpur, Civil Lines,
Nagpur 400 001.
3. The Municipal Council.
Through its Chief Officer,
Saoner, Tah.Saoner, District
Nagpur.
4. Vinodkumar s/o. Manmal Jain,
Aged about 52 years, Occ.
Councilor, Prabhag No.3, r/o.
Ward No.7, Post Office Road,
Saoner, District Nagpur.
5. Vijay s/o. Mohan Baswar,
Aged Adult, Occ. Councilor,
Prabhag No.4, r/o. Ward No.3,
Bus Stand, Saoner, Tah. Saoner,
District Nagpur.
6. State Election Commission,
through its Commissioner,
New Administrative Building,
Madam Cama Road, Hutatma
Rajguru Chowk, Mumbai - 32. .......... RESPONDENTS
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Mr.Rohit Deo, Adv. for the Petitioners.
Mr.S.M.Bhagde, A.G.P. for Respondent Nos. 1 and 2.
Mr.M.I.Dhatrak, Adv. for Respondent no.3.
Mr.Sunil Manohar, Sr. Counsel with Mr.S.W.Sambre, Adv.
for Respondent no.5.
Mr.J.B.Kasat, Adv. for Respondent No.6.
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CORAM : A.P.BHANGALE, J.
DATE : 10.12.2013.
ORAL JUDGMENT :
1. Rule made returnable forthwith. Heard submissions
advanced by the learned Counsel for the respective parties.
2. The petitioners herein have filed this petition under
Articles 226 and 227 of the Constitution of India impugning
the order dt.28.10.2013 passed by respondent no.1 in
Appeal No.2/2012-13.
3. The question that is raised is as to whether the
petitioners as Councilors of Municipal Administration,
Municipal Council, Saoner would incur disqualification for
their absence from the meetings of the Municipal Council.
4. The facts, briefly stated, are as under :
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There was a special meeting of Municipal Council on
15.2.2012 which was attended by the petitioners. The next
meeting was scheduled on 12.4.2012, which was cancelled.
The another meeting of the Municipal Council was on
14.6.2012, during which the petitioners remained absent
without seeking or obtaining any leave for their absence.
The learned Counsel for the petitioners submitted that -
from 14.6.2012 it was essential for the Municipal
Councilors to attend the meeting of the Council or atleast to
seek leave for their absence to justify their absence. A
meeting of the Municipal Council was thereafter also held
on 29.6.2012. But the petitioners remained absent. Thus,
on the ground of absence of all the petitioners
herein/Municipal Councilors in the special meetings held
on 14.6.2012 and 29.6.2012, an application was preferred
by respondent nos. 4 and 5 for absentee Councilors'
disqualification in view of Section 44(1)(d) of the
Maharashtra Municipal Councils, Nagar Panchayats and
Industrial Township Act, 1965. The provision required the
Municipal Councilor to attend the meeting of the Municipal
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Council during his tenure of Office. Thus, if the Councilor
remains absent from the meetings of the Municipal Council
during six successive months except when leave of absence
granted for such absence, such Municipal Councilor shall be
disqualified subject to provision of sub-section (3) from
continuing to be a Councilor and his Office shall become
vacant. Sub-section (3) of Section 44 relates to decision of
the Authority as to whether the vacancy has arisen and the
Collector may give his decision upon receipt of the report
from the competent Officer from the Municipal Council
under sub-section (2) of Section 44 or on his own motion
or on the application made to him by any voter. The object
of law is to ensure consistent presence of Municipal
Councilors at it's meetings in the interest of Municipal
Administration. Hence, absence beyond tolerable limits
fixed statutorily without any excuse may result in
disqualification and vacancy of seat.
5. In this connection, my attention is invited to the legal
position stated in the ruling by the Division Bench in the
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case of Chirak Chandu Khatik vs. G.V.Kshirsagar reported
in (1965) 67 BomLR 657. It appears that the Division
Bench of this Court, while dealing with the question in
respect of provision which was pari materia to the provision
under consideration in that case, referred to Section 40 of
the Village Panchayats Act. It was held that six months of
absence must be reckoned from the date of meeting at
which the Member remained absent and not from the date
of the meeting at which the Member was last present.
6. Reference is also made to the ruling in the case of
V.P.Singh .vs. Chairman, Metropolitan Council reported in
AIR 1969 Delhi 295 to indicate that during the period of six
successive months if a Member remains absent without
permission of the Council, the Council may declare the seat
of such member as vacant.
7. In another ruling in the case of Kapilaben Chimanlal
Kothari vs. The Commissioner of Revenue reported in
(1960) 1 GLR 233, an identical question was considered by
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the Gujarat High Court. In that case, making reference to
the relevant provision, it was observed that if a Councilor
remains absent during four successive months from the
meetings of the Municipality except with the leave of the
Municipal Council, he shall be disabled from continuing in
the Office and the Office shall be made vacant.
8. Thus, in the rulings afore-cited, it appears that if a
Councilor remains absent for the period successively i.e. for
statutory period of six months in this case, without
obtaining leave from the Municipal Council concerned, such
a Councilor would incur disqualification and his seat may
be declared vacant on the ground of continued absence for
statutorily prescribed period without any excuse.
9. Mr.S.V.Manohar, learned Senior Counsel fairly
submitted that the ruling of the Division Bench would be
binding upon this Court. According to him, there is no
exact judicial precedent by the Apex Court on the subject
under consideration. It is submitted that deliberate absence
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of the Councilor for entire block of six months to attend the
meetings of the Municipal Council need to be considered
for holding him responsible for incurring disqualification as
a Municipal Councilor. In other words, according to the
learned Senior Counsel, if a Councilor is not available for a
block period of six months for the meetings and he is
deliberately remaining absent, then only disqualification
ought to incur in such cases.
10. Considering the rulings cited before me and
submission at the bar, in the present case, it is true that
since 14.6.2012 the Municipal Councilors/petitioners were
continuously absent in the meetings of the Municipal
Council, but, in the facts and circumstances of the case,
disqualification to hold Office as Councilors has not yet
occurred. There was no valid reason nor cause of action for
preferring a pre-mature application for disqualification of
Councilors u/s.44(1)(d) of the Act. Municipal Councilors
had not remained absent continuously and beyond
statutory limits of six months applicable in this case.
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Anticipatory application apprehending absence of
Councilors for entire block period of six months could not
have been entertained in this case. Hence, the impugned
order dt.6.5.2013 passed by respondent no.2 in Application
No.7 of 2012 and the impugned order dt.28.10.2013 passed
by respondent no.1 in Appeal No.2/2012-13 are
unsustainable and required to be quashed and set aside.
They are accordingly quashed and set aside. The petition
is, thus, allowed in terms of the prayer made in the petition.
Rule is made absolute accordingly.
11. At this stage, Mr.S.V.Manohar, learned Senior
Counsel prays for grant of stay to the operation of this
order for ten days to seek appropriate relief. Hence,
operation of the above order shall remained stayed for a
period of ten days.
JUDGE
jaiswal
