Bombay High Court
Mr. Nagesh Haribhau Akkalkote vs The State Of Maharashtra And Ors on 17 December, 2015
Bench: M.S. Sonak
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11776 OF 2015
WITH
CIVIL APPLICATION NO. 3284 OF 2015
Nagesh H. Akkalkote .. Petitioner
vs.
The State of Maharashtra & ors. .. Respondents
Mr. Vineet B. Naik, Senior Advocate a/w. Mr. Abhijit Kulkarni i/b
D.D. & Abhijit Associates for the Petitioner.
Ms Neha Bhide, AGP for Respondent Nos.1, 2 and 4.
Mr. Balkrishna D. Joshi for Respondent No.3.
CORAM : M. S. SONAK, J.
ORAL JUDGMENT :-
ig DATE : 17 DECEMBER 2015.
1] Rule. With the consent of and at the request of learned
counsel for the parties, Rule is made returnable forthwith. Even
otherwise, in the order dated 3 December 2015, the parties were put
to notice that an endeavour shall be made to dispose of this petition,
finally.
2] The challenge in this petition is to the order dated 29
September 2015 made by the Additional Secretary, State of
Maharashtra, purporting to exercise appellate jurisdiction under
Section 44(4) of the Maharashtra Municipal Councils, Nagar
Panchayats and Industrial Townships Act, 1965 (said Act) and in
pursuance thereof to stay the orders dated 14 September 2015 made
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by the Additional Commissioner, Pune, by which the disqualification
order made against the Petitioner under Section 44 of the said Act,
had been set aside. In effect, the impugned order purports to revive
the disqualification, in so far as the Petitioner is concerned.
3] Mr. Vineet Naik, learned senior advocate for the Petitioner, has
made the following submissions in support of the petition:
a] That in terms of Section 44(4) of the said Act, the order
dated 14 September 2015 was made by the Regional Director
of Municipal Administration, has been accorded statutory
finality. Accordingly, no further appeal lay before the
Additional Secretary, State of Maharashtra. Since the appeal
itself was ex-facie not maintainable, the impugned order made
therein is a nullity;
b] This Court, by its order dated 31 July 2015 in Writ
Petition No. 6139 of 2015 had stayed disqualification incurred
by the Petitioner during pendency of the Petitioner's appeal
under Section 44(4) of the said Act before the Regional
Director, Municipal Administration. The Petitioner's appeal
was allowed by the Regional Director and the order of
disqualification was set aside. In such circumstances, there
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was absolutely no justification to make the impugned order,
which virtually has the effect of reviving disqualification of the
Petitioner;
c] The impugned order has been made ex-parte and
contains no reasons whatsoever. This is also a serious
jurisdictional error, considering the circumstance that the
Petitioner is an elected representative.
4]
Ms Neha Bhide, learned AGP for Respondent Nos.1,2 and 4,
fairly submitted that under the provisions of Section 44(4) of the
said Act, no further appeal, would lie to the State Government.
Mr.B.D. Joshi, learned counsel for Respondent No.3, however, joined
the issue and submitted that in terms of Section 44(4) of the said
Act, appeal against disqualification basically lies to the State
Government. Insofar as, notification delegating such powers to the
Regional Directors are concerned, Mr. Joshi pointed out that such
notification is prior to introduction of Section 44(1)(e) on the
Statute Book by virtue of Maharashtra Act 11 of 2002. Therefore, he
submitted that the appeal instituted by the Petitioner before the
Regional Director was itself not maintainable. In any case, Mr. Joshi
submitted that in terms of Section 318 of the said Act, the State
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Government possess revisional jurisdiction and therefore, there is no
jurisdictional infirmity in the making of the impugned order. In the
context of civil application made by the Petitioner seeking his
insertion in the name of list of voters, Mr. Joshi submitted that the
election process has already commenced and therefore, there arises
no question of directing such inclusion, at this belated stage.
5] The rival contentions now fall for determination.
6] Section 44 of the said Act provides that a Councillor shall be
disqualified to hold office as such, if at any time during his term of
office, he has, inter alia, has constructed or constructs by himself, his
spouse or his dependent, any illegal or unauthorised structure
violating the provisions of the said Act, or the Maharashtra Regional
and Town Planning Act, 1966 or the rules or bye-laws framed under
the said Acts or has directly or indirectly been responsible for or
helped in his capacity as such Councillor in, carrying out such illegal
or unauthorised construction or has by written communication or
physically obstructed or tried to obstruct any Competent Authority
from discharging its official duty in demolishing any illegal or
unauthorised structure.
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7] Section 44(4) of the said Act provides that any person
aggrieved by the decision of the Collector may within a period of
fifteen days from the date of receipt of the decision of the Collector
by him, appeal to the State Government and the orders passed by
the State Government shall be final. The proviso, mandates that no
order shall be passed under sub-section (3) by the Collector or under
sub-section (4) by the State Government in appeal, against any
Councillor without giving him a reasonable opportunity of being
heard.
8] Section 74 of the said Act deals with appointment of
Regional Directors of Municipal Administration as also, the powers
of Collector. Sub-section (1) deals with appointment of Director of
Municipal Administration or Regional Directors of Municipal
Administration and the extent of their respective jurisdiction. Sub-
section (2) provides that the Director and the Collector of each
district, shall exercise such powers and perform such duties as are
conferred and imposed upon them by this Act or any rule made
thereunder. The State Government may, by notification in the
Official Gazette, direct that any power (except the power to make
rules) or duty which by this Act or by any rule made thereunder is
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conferred or imposed upon it shall, in such circumstances and under
such conditions, if any, as may be specified, be exercised or
performed also by the Director or the Collector. Sub-section (3)
provides that each Regional Director and each Assistant and Deputy
Collector, shall within his respective jurisdiction be competent to
exercise any of the powers and to perform any of the duties
conferred and imposed upon, or delegated to, the Director and the
Collector, respectively. The proviso provides that the Director or, as
the case may be, the Collector, may, subject to the general or special
orders of the State Government reserve to himself such powers and
duties as he may, by order, specify in this behalf. Finally, sub-section
(4) provides that in exercising their powers and performing their
duties, the Regional Director and the Assistant and Deputy Collectors
shall be subject to the control and supervision of the Director and
the Collector, respectively.
9] From the aforesaid, it is quite clear that there are provisions
for delegation by the State Government and the powers vested in
itself to the Director of Municipal Administration, Regional Directors
of Municipal Administration as also such other Officer referred to
under Section 74 of the said Act.
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10] In pursuance of such powers of delegation, the Petitioner has
placed on record notification dated 1 January 2001, in terms of
Annexure-2 to the said notification. It is clear that appeal powers
under Section 44(4) of the said Act have been delegated by the State
Government to the Regional Directors of Municipal Administration.
Such powers are to be exercised by the Regional Directors within
their respective jurisdiction.
11]
In this petition, even Respondent No.3 has not challenged the
notification with regard to such delegation of powers. However,
Mr.Joshi has submitted that such delegation will not apply to
disqualification under Section 44(1)(e) of the said Act, since, this
ground of disqualification was introduced in the Statute Book only
by Maharashtra Act 11 of 2002. It is not possible to accept this
submission.
12] The insertion of clause (e) in sub-section (1) of Section 44 of
the said Act, may have come about in the year 2002. However, the
provisions of Section 44, which provide for appeals against decisions
of the Collector in the matter of disqualifications under Section
44(1) of the said Act, have been in the Statute Book from inception.
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In exercise of powers conferred by Section 74 of the said Act, the
State Government, which is otherwise appellate authority under
Section 44 (4) of the said Act has chosen to delegate its powers to
Regional Directors of Municipal Administration. There is no
retrospectivity involved in the matter of delegation of such powers.
The circumstance that clause (e) was introduced in the year 2002
and the delegation in terms of Section 44(4) of the said Act was
made in year 2001, is really an irrelevant circumstance. Even
Respondent No.2, at no stage, had objected to appeal of the
Petitioner being taken up for Regional Director. This Court, in its
order dated 31 July 2015, had also directed the Regional Director to
dispose of the Petitioner's appeal, even though, at that stage, the
issue now raised by Mr. Joshi had not been raised by any of the
parties. Accordingly, the appeal instituted by the Petitioner before
the Regional Director was rightly instituted. The Regional Director,
undoubtedly, had jurisdiction to decide the said appeal, in terms of
Section 44(4) of the said Act read with the delegation notification
issued in terms of Section 74 of the said Act.
13] Section 44(4) of the said Act very categorically provides that
the orders passed by the State Government in exercise of appellate
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powers shall be final. In this case, the State Government has
delegated its own powers to the Regional Director, the orders passed
by the Regional Director exercising appeal jurisdiction under Section
44(4) of the said Act have been accorded statutory finality.
Therefore, there was no question of Respondent No.3 instituting
further appeal to the State Government, questioning the order made
by the Regional Director under Section 44(4) of the said Act. Such
an appeal was clearly not maintainable and on this ground itself the
impugned order made therein, is required to be set aside.
14] At this stage, it is not necessary to go into the question as to
whether the State Government could have exercised the revisional
powers. This is because, the impugned order itself very categorically
states that the Additional Secretary, State of Maharashtra, has
purported to exercise appeal powers under Section 44 (4) of the said
Act, when, as noted earlier, such powers are no longer available for
exercise. Besides, it is not even the case of Respondent No.3 that
what was instituted before the Secretary, State of Maharashtra, was
in fact a revision petition.
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15] Even otherwise, assuming that some sort of jurisdiction could
be attributed to the State Government in matters of this nature, it
must be noted that there was no justification whatsoever for grant of
ex-parte stay, upon the order made by the Regional Director, which
have set aside disqualification order made against the Petitioner.
During pendency of the appeal before the Regional Director, stay
upon disqualification had been declined by the appellate authority.
In Writ Petition No. 6193 of 015, this Court had granted limited stay
to such disqualification, which was to operate during pendency of
the appeal. The Regional Director has in fact, allowed the Petitioner's
appeal and set aside the disqualification. Even the proviso to Section
44 of the said Act mandates that no order shall be made under sub
section (4) of the State Government, in appeal, against any
Councillor, without giving him a reasonable opportunity of being
heard. In these circumstances, there was really no case made out to
grant any ex-parte stay, which would have effect of virtually reviving
disqualification against the Petitioner.
16] Further, the impugned order is totally bereft of any reasons
whatsoever. At the stage of grant or refusal of interim reliefs, there
may not be any necessity of recording elaborate reasons. However, it
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does not mean that there is no requirement of recording any reasons
whatsoever. The reasons, in brief, are mandated, particularly
considering the fact situation of the present case. This is another
reason for which, the impugned order is liable to be set aside.
17] This Court, on 3 December 2015, by a speaking order had
granted ad-interim relief in terms of prayer clause (c). This means
that the impugned order dated 29 September 2015 was stayed and
the Petitioner was very much qualified to continue as a Councilor.
Despite this, Respondent No.4 has refused to include the name of the
Petitioner in the voters' list for election process to the legislative
Council of Maharashtra. Respondent No.4 declined such inclusion,
on the ground that the order of this Court was not made available to
him by 4 December 2015. This was not proper particularly,
considering the order dated 11 December 2015, whereby names of
certain voters have been included in the very same voters' list by the
very same authorities. The interim order dated 3 December 2015
was made after hearing learned counsel for Respondent Nos.1,2 and
4. Therefore, Respondent No.4 ought to have included the name of
the Petitioner in the voters' list, no sooner he was apprised of the
interim order dated 3 December 2015, which, as noted earlier was
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made after hearing the counsel representing him.
18] Mr. Naik, learned senior advocate for the Petitioner, has made
it clear that the Petitioner has no intentions of contesting election,
but the Petitioner merely desires to vote at such election. Therefore,
requiring Respondent No.4 to do, what Respondent No.4 should, in
any case have done by himself, is permissible, particularly since the
election process is not being derailed in any manner. The
Respondent No.3, on the basis of the ultra vires impugned order,
which he had obtained cannot be permitted to oppose such plea.
Otherwise, Respondent No.3 would virtually succeed, on the basis of
the impugned order, which was ex-facie without jurisdiction and in
any case deserved to be quashed and set aside.
19] Therefore, Rule is made absolute. The impugned order dated
29 September 2015 is quashed and set aside. Respondent No.4 is
directed to forthwith include the name of the Petitioner in the voters'
list for the elections to the Legislative Council, State of Maharashtra
and to permit the Petitioner to vote therein.
20] It is, however, made clear that this Court has not examined
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the merits of the matter, in the sense the merits with regard to
disqualification or otherwise of the Petitioner. Therefore, all
contentions of all parties in this regard are kept open.
21] The petition and civil application are disposed in the aforesaid
terms.
22] In the facts and circumstances of the present case, there shall
be no order as to costs.
23] All concerned to act on the basis of authenticated copy of this
order.
(M. S. SONAK, J.)
dinesh
