Bombay High Court
Manohar Krishna Madhavi vs The Commissioner on 21 October, 2013
Bench: R.Y. Ganoo
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 180 OF 2006
Manohar Krishna Madhavi .. Applicant
V/s.
The Commissioner, Navi Mumbai
Municipal Corporation ..Respondent
Mr. A.Y. Sakhare, Sr. Advoate a/w R.S. Datar for the applicant
Mr. A.A. Garge for respondent no.1
Mr. M.J. Bhatt for respondent no.2
CORAM : R.Y. GANOO, J.
st
DATED : 21 OCTOBER, 2013.
ORAL JUDGMENT :
1. The applicant has challenged the order dated 11 th August,
2006 passed by the learned Civil Judge, Senior Division, Thane in
Miscellaneous Application No. 17 of 2004 filed under the provisions
of Bombay Provincial Municipal Corporation Act, 1949 (hereinafter
referred to as the 'said Act') being a reference made under Section 12
r/w Section 405 of the said Act. Few facts necessary for the disposal
of this Civil Revision Application are as under.
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2. The applicant contested the election, which was held on 26 th
March 2000. The nomination for the post of a Councilor from ward
no.38 was filed on 29th February 2000. The applicant was declared
as elected for the aforesaid ward no.38 by declaration dated 30 th
March 2000. The matter was raised before the Municipal
Commissioner by the present complainant by alleging that the
applicant should be declared as disqualified in accordance with the
provisions of Section 10(i)(f) of the said Act as the applicant had
prior to filing of the nomination, entered into an agreement with the
Navi Mumbai Municipal Corporation (hereinafter referred to as 'said
Corporation') and the benefit of the said contract was received by the
applicant and that the contract was performed during the time when
the applicant was to work as a Councilor. It was also alleged by the
complainant that the applicant received monies towards contractual
obligations to be performed by the applicant. The said complaint
was considered by the Commissioner of the said Corporation and a
reference was made to the Court of Civil Judge, Senior Division,
Thane as per the provisions of Section 12 r/w Section 405 of the said
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Act. In the course of deciding the said reference, parties had laid
evidence and the main witnesses were the employees of the
Corporation who have placed before the Court necessary record in
relation to the complaint which was filed by the complainant.
3. The applicant was running two firms by name M/s. M.K.
Constructions. It is pertinent to note that the names of these two
firms are one and the same. The applicant was proprietor of the
said firms. The applicant in the course of his business under the
banner M/s. M.K. Constructions used to maintain dichotomy so far as
these two firms are concerned with reference to the parties with
whom he used to deal with.
4. The evidence placed before the learned Civil Judge, Senior
Division i.e. trial Court was considered by the learned Judge. The
learned Judge came to the conclusion that the allegations levelled
against the present applicant are substantiated by the evidence on
record and that the applicant has committed an act namely the
applicant had entered into a contract with the Corporation and while
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having the benefit under the said contract, the applicant had
contested the election for the post of a Municipal Councilor and had
succeeded in the said election and while having the benefit under the
said contract, the applicant was acting as a Councilor. The contract
for construction of ward office at Sector-3 of the Corporation was
allotted to the applicant's firm M/s. M.K. Construction, dealing in
Government contracts. The work order was issued in favour of M/s.
M.K. Construction on 21st January 2000 for Rs.69,23,041/-. The
period of contract was to commence from 21st January 2000. The
work was to be completed by 20th October 2000. The performance
of the contract by the applicant was over on 19th May 2001. The
learned trial Judge has appreciated the record and has come to the
conclusion that the firm M/s. M.K. Constructions of which the
applicant was a proprietor had dealing with the Corporation and
despite knowledge of this fact, the applicant contested the election
and started acting as a Councilor. The stand of the applicant that
the applicant had transferred the rights under the said agreement to
one Mr. Ajay Mhatre was rejected by the learned trial Judge primarily
on the ground that the work order which was issued in favour of the
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applicant was not transferred and that the applicant received monies
from the Corporation towards the amount receivable by the applicant
for performance of his part of the contract.
5. Mr. Sakhare, learned Senior Counsel appearing on behalf of the
applicant submitted that the learned trial Judge erred in declaring
that the applicant incurred disqualification under Section 10(i)(f) of
said Act for the election held on 26th March 2000. Learned Senior
Counsel Mr. Sakhare appearing on behalf of the applicant took me
through the provisions of Section 10(i)(f) of the said Act and
submitted that even if the view taken by the learned trial Judge so
far as the election, which was completed on 30th March 2000 is
accepted as correct, the view taken by the learned trial Judge that
the applicant is not entitled to act as a Councilor any more is
incorrect. According to the learned Senior Counsel Mr. Sakhare, the
view taken by the learned trial Judge as to put an embargo on the
present applicant from contesting election any time in future is not
supported by the provisions of the said Act or any other Act.
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6. Learned Senior Counsel Mr. Sakhare further pointed out that in
the impugned judgment dated 11th August 2006, no reasons are
furnished in support of the order passed by the learned trial Judge by
which he has declared that the applicant is not entitled to act as a
Councilor any more. Learned Senior Counsel Mr. Sakhare appearing
on behalf of the applicant prayed for passing appropriate orders in
terms of his submissions.
7.
Learned advocate Mr. Garge appearing on behalf of the
Corporation took me through the record and pointed out the relevant
dates, by which it was sought to be submitted that when the
applicant filed the nomination for the election to be conducted on
26th March 2000, the applicant was granted a contract by
Corporation in regard to construction of a building to be owned by
the Corporation. He submitted that on 21 st January 2000 a Work
Order was issued in favour of the applicant to carry out construction
activity, more particularly stated in the said order. According to
learned advocate Mr. Garge on account of the said work order, the
applicant could not have filed nomination for the election which was
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to be conducted on 26th March 2000 as per the provisions of Section
10(i)(f) of the said Act. He further submitted that the applicant
while filing the nomination did not disclose anything about the work
order dated 21st January 2000. Learned advocate Mr. Garge
submitted that the applicant continued to have the benefit of the
work order dated 21st January, 2000 after he was elected as a
Councilor in as much as the payment was received by the present
applicant towards the contract. Learned advocate Mr. Garge
submitted that the learned trial Judge has appreciated the record in
the proper perspective and has rightly declared the applicant as
disqualified in the election which held on 26th March 2000.
Learned advocate Mr. Garge also supported the order passed by the
learned trial Judge by which the learned trial Judge has held that the
applicant is not entitled to act as a Councilor any more. Learned
advocate Mr. Garge drew my attention to other clauses of Section 10
of said Act where a specific embargo can be put in while declaring a
particular election for a particular period as null and void and
declaring that the said Councilor has incurred the disqualification
and further held that the said person cannot contest the elections for
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certain number of years as provided in the Act for example provisions
of Section 10(i)(ia) of said Act and proviso thereto.
8. Learned advocate Mr. Bhatt appearing on behalf of the
complainant i.e. the person on whose complaint, a reference was
made to the learned trial Judge supported the argument advanced by
learned advocate Mr. Garge.
9.
I have perused Section 10(i)(f) of the said Act as well as other
relevant provisions which were brought to the notice of the Court by
the learned advocate Mr. Garge where it is possible for the Court to
put an embargo concerning contesting elections for a particular
period in future. At this juncture, it would be convenient to
reproduce provision of Section 10(i)(f) of the said Act, which are as
under.
"10(i)(f) subject to the provisions of sub-section (2), has
directly or indirectly by himself or his partner any share of
interest in any contract or employment with, by or on behalf
of the Corporation."
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10. Applying the provisions of Section 10(i)(f) of the said Act to the
facts of this case, I have perused the evidence on record as well as
reasoning arrived at by the learned trial Judge. I have already
indicated the relevant dates namely the date of allotment of work
order to the present applicant, the period within which the contract
was to be completed, the payments to be made to the present
applicant and other relevant matters. I have also considered the
stand of the present applicant that he had transferred rights under
the contract to one Mr. Ajay Mhatre and the effect thereof. The
learned trial Judge has considered the relevant dates and relevant
documents and has rightly arrived at a conclusion that conduct of the
present applicant was not well within the meaning of Section 10(i)(f)
of the said Act and a declaration was required to be issued so as to
disqualify the applicant concerning the election conducted on 26 th
March 2000. The stand of the present applicant that he had
transferred the rights under the contract to Mr. Ajay Mhatre was
rightly rejected. The work order issued in favour of the applicant
was not transferred in the record of Corporation. Though the
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applicant did put up a defence that right in the contract was
transferred to one Mr. Ajay Mhatre, the applicant has received
monies in regard to the said contract. In view of the aforesaid
discussion, I am inclined to observe that the learned trial Judge has
rightly arrived at a conclusion that the reference should be answered
in the affirmative and a declaration is required to be issued so far as
the disqualification of the present applicant as a Councilor. It is
pertinent to note that the present applicant was declared as elected
on 30th March, 2000 and his tenure was upto 29th / 30th March 2005.
The decision to disqualify the present applicant has been rendered on
11th August 2006 i.e. after the tenure of the present applicant for the
aforesaid period 2000 to 2005 has come to an end. However,
issuance of such declaration has rightly been done and no
interference is required in the item no.2(a) of the operative part of
the order dated 11th August 2006, as well as clause 2(c) so far as
necessary action to be taken in regard to disqualification of the
present applicant for the period 2000 to 2005.
11. The next point which is required to be considered is as regards
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item no.2(b) of the impugned order, by which, the learned trial
Judge has observed "He (applicant) is not entitled to act as Councilor
any more." In so far as this aspect is concerned, I am inclined to
accept the argument advanced by learned Senior Counsel Mr.
Sakhare that looking to the provisions of Section 10(i)(f) of said Act
which indicate disqualification on various counts, the provisions of
Section 10(i)(f) of Act do not provide for making a declaration as has
been done by the learned trial Judge in terms of clause 2(b) of the
operative part of the impugned order. The argument advanced by
learned Senior Counsel Mr. Sakhare as regards absence of reasons in
the impugned order is also required to be accepted. If at all, the
learned trial Judge was of the view that he should pass an order in
terms of clause 2(b), it was absolutely necessary for him to give
reasons as to why he came to the conclusion that the applicant
should be prohibited from acting as a Councilor any more. To me, it
appears that the learned trial Judge took upon himself the task of
issuing declaration in terms of clause 2(b) as he felt that he must
follow provisions of Section 10(i)(ai) of said Act, where a specific
provision is made by which a particular person who is disqualified
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that disqualification remains in operation for a period of six years
from the date of such conviction. It appears that the learned trial
Judge wanted to follow the principles laid down in Section 10(i)(ai)
of said Act. The provisions of Section 10(i)(f) of said Act do not
provide for continuation disqualification from the date of declaration
issued concerning disqualification.
12. For the aforesaid reasons, while upholding the impugned order
dated 11th August 2006 in so far as clause 2(a) is concerned, I am
inclined to set aside the impugned order so far as clause 2(b) is
concerned. Clause (c) has been incorporated in the operative part of
the order to enable the Commissioner for Corporation to take
necessary action in accordance with the provisions of the said Act.
13. For the reasons mentioned aforesaid, following order is passed
to dispose of this Civil Revision Application.
O R D E R
(i) The order dated 11th August 2006 passed by the learned Civil
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Judge, Senior Division, Thane in reference Misc. Application No. 17
of 2004 so far as clause 2(a) and 2(b) is confirmed.
(ii) Clause 2(b) of the operative part of the impugned judgment
dated 11th August 2006 as mentioned aforesaid is set aside.
(iii) There shall be no order as to costs.
(R.Y. GANOO, J.)
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