Bombay High Court
Mr. Ram Hari Egade vs Thane Municipal Corporation And ... on 26 February, 2016
Bench: Anoop V. Mohta
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11070 OF 2015
Mr. Shailesh Manohar Patil,
Age : years, Occ:
R/at ...., Near Kulswamini Mandir,
Diva Road, Bunder Lane, Diva Road, Thane .... Petitioner
vs
1 Thane Municipal Corporation,
having office at -
Mahanagarpalika Bhavan,
Dr. Almeida Road,
Chandan Wadi, Panchpakhai,
Thane 400 602
2 The Commissioner,
Thane Municipal Corporation,
Mahanagarpalika Bhavan,
Dr. Almeida Road,
Chandan Wadi, Panchpakhai,
Thane 400 602
3 Shri Ramakant Dashrath Madhavi,
Age: - Occ: -
Residing at Dativli Diva, Thane .... Respondents
ALONG WITH
WRIT PETITION NO. 11072 OF 2015
Mr. Ram Hari Egade,
Age : years, Occ:
R/at ...., 2/3 N. B. Wing,
1/12
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Siddhivinayak Tower,
Runwal Nagar,
Thane (West) .... Petitioner
vs
1 Thane Municipal Corporation,
having office at -
Mahanagarpalika Bhavan,
Dr. Almeida Road,
Chandan Wadi, Panchpakhai,
Thane 400 602
2 The Commissioner,
Thane Municipal Corporation,
Mahanagarpalika Bhavan,
Dr. Almeida Road,
Chandan Wadi, Panchpakhai,
Thane 400 602
3 Shri Sandeep Mhalgaonkar,
Age: - Occ: - Adult,
Residing at Merry Dsouza Chawl,
Gokuldaswadi, Khopat,
Pokharan Road No.1,
Thane 400 601 .... Respondents
AND ALONG WITH
WRIT PETITION NO. 11071 OF 2015
Mr. Manohar Rama Salvi,
Age : years, Occ:Business,
R/at Ruturaj, Manisha Nagar,
Bombay Poona Road, Kalwa,
Thane - 400 604 .... Petitioner
vs
2/12
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1 Thane Municipal Corporation,
having office at -
Mahanagarpalika Bhavan,
Dr. Almeida Road,
Chandan Wadi, Panchpakhai,
Thane 400 602
2 The Commissioner,
Thane Municipal Corporation,
Mahanagarpalika Bhavan,
Dr. Almeida Road,
Chandan Wadi, Panchpakhai,
Thane 400 602 .... Respondents
Mr. Y. S. Jahagirdar, Senior Advocate with Mr. P. K. Dhakephalkar,
Senior Advocate, with Mr. G.s. Godbole with Mr. S.M. Oak, Mr. B. G.
Tangsali and Mr. Sagar A. Joshi, Advocates for the Petitioners.
Mr. Shekhar Jagtap with Mr. Akshay Kapadia i/by J. Shekhar & Co for
the Corporation.
CORAM: ANOOP V. MOHTA AND
G. S. KULKARNI, JJ.
CLOSED FOR JUDGMENT ON : February 12, 2016
PRONOUNCED ON : February 26, 2016
JUDGMENT (Per Anoop V. Mohta, J.):
Rule, returnable forthwith. Heard finally by consent of
parties.
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2 Since the issues involved in all these matters are common,
the same are heard and therefore disposed of by this common
judgment, accordingly.
3 The Petitioners have challenged separately, respective but
similar order dated 3 November 2015, whereby they have been
declared "deemed disqualified councillor" of Thane Municipal
Corporation (The Corporation). The provisions of the Maharashtra
Municipal Corporation Act, 1949 (for short, "MMC Act") referring to
Sections 10 (1D), 11, and 12 have been invoked.
4 Sections 10 (1D), 11 and 12 of the MMC Act read thus:
10 Disqualification for being a councillor,
(1) Subject to the provisions of Sections 13 and
404, a person shall be disqualified for being elected and for
being a councillor, if such person -
...............
(1D) A Councillor shall be disqualified for being a
Councillor, if such Councillor has constructed or constructs
by himself, his spouse or is dependent, any illegal or
unauthorised structure violating the provisions of this 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, a 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
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Authority from discharging its official duty in demolishing
any illegal or unauthorised structure. Such disqualification
shall be for the remainder of his term as a Councillor from
the date of the declaration of such structure to be illegal or
unauthorised by the concerned authority under the
provisions of the said Acts or, as the case may be, from the
date of commission of the act of interference or obstruction
by the Councillor against the Competent Authority.
(emphasis added)
11 Disabilities from continuing as councillor
A councillor shall cease to hold office as such if at any
time during his term of office he, -
(a) becomes disqualified for being a councillor by
reason of the provisions of Section 10;
(b) ---------
(c ) ---------
(d) ---------
12 Questions as to disqualification to be determined
by the Judge.
(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
manner provided by or under this Act determines that he
has ceased to hold office.
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5 It is stated in first Writ Petition No. 11070/2015 that the
Petitioner got elected on 6.3.2012 from Ward No.65A of the
Corporation. On 11.09.2014, disputed the position of alleged
disqualification of the Petitioner as show cause notice was issued by
the Corporation. The Commissioner passed the order and put the
subject of alleged disqualification of the Petitioner before the General
Body for referring it to the Judge under Section 12 MMC Act. The
Commissioner held that the Petitioner has carried out unauthorized
construction. On 22.12.2014, Vide Resolution No. 182, the General
Body of Corporation refused to refer the subject of alleged
disqualification to the Judge. On 31.10.2015, the Deputy
Commissioner issued a notice for hearing of the proceedings under
Section 10 (1D) of MMC Act. On 3.11.2015, the Commissioner
passed the impugned order and disqualified the Petitioner as a
councillor for his remaining tenure w.e.f 3.11.2015. The impugned
order records at one hand that the alleged construction is prior to
01.04.2010 and the other hand records that alleged construction has
been carried out during the tenure as a councillor.
6 It is stated in second Writ Petition No. 11072 of 2015 that
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the Petitioner got elected from Ward No. 24 on 6.3.2012. On
17.03.2012, Sandip Mahagaonkar, a rival candidate, complained
about an alleged unauthorized construction by Petitioner's wife. On
15.05.2014, the Petitioner disputed that he has incurred such
disqualification. On 27.05.2014, the Deputy Commissioner put the
subject of alleged disqualification before the General body for
referring it to the Judge under Section 12 of MMC Act. On
27.06.2014, Vide Resolution No. 12, General Body of Corporation
refused to refer the subject of alleged disqualification of the Petitioner
to the Judge. On 31.10.2015, the Deputy Commissioner issued a
notice for hearing of the proceedings under Section 10(1D) of MMC
Act. On 3.11.2015, the Commissioner passed the order and
disqualified the Petitioner as a councillor for his remaining tenure
w.e.f 3.11.2015. The impugned order is passed without any inquiry
or any evidence.
7 It is stated in third Writ Petition No. 11071 of 2015 that
the Petitioner got elected from Ward No. 43B on 6.3.2012. On 4-5-
2012, one Ghanshyam Thorat (Retd Asst. Commissioner) submitted
the report alleging that the Petitioner obstructed the officers of the
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Corporation while they were taking actions against the unauthorized
construction of third party. On 5.5.2012, a Show Cause Notice was
issued to the Petitioner as to why action under Section 10(1D) of
MMC Act should not be initiated against him. On 14.05.2012, the
Petitioner disputed the position that he has incurred any
disqualification. On 27.05.2014, the Commissioner put the subject of
alleged disqualification before the General Body for referring it to the
Judge under Section 12 of MMC Act. On 27.06.2014, Vide Resolution
No. 14, the General Body of Corporation, refused to refer it to the
Judge. On 3.10.2015, the Deputy Commissioner issued a notice for
hearing of the proceedings under Section 10 (1D) of MMC Act. On
3.11.2015, the Commissioner passed the order and disqualified the
Petitioner as a councillor for his remaining tenure w.e.f 3.11.2015.
The impugned order records the obstruction without any inquiry or
any evidence is the case.
8 Admittedly, the petitioners were elected as Councillors of
the Corporation on 6 March 2012. They had been working as
councillor till the date of impugned order. They filed these writ
Petitions. This Court has granted protective order to the extent of not
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to hold fresh elections of the respective post. Admittedly, the
Respondent-Corporation never made reference under Section 12.
However, by the impugned communication, by overlooking the
provisions, declared the Petitioners as "deemed disqualified".
9 The learned counsel appearing for the Respondent-
Corporation opposed the prayers and relied on Bhaskar Timappa
Shetty v. State of Maharashtra1.
ig The provisions so read and referred
above are clear including the power of Commissioner. But it is always
subject to the foundation of case/facts, being within the ambit of
above provisions. The Corporation and the Commissioner are also
under obligations to follow the provisions strictly, as it disqualify the
sitting elected member. Such decision of "deemed disqualification"
cannot be used and utilised abruptly, without complying with the
mandate of the provisions, specially by misinterpreting it and/or by
wrong application of law. All the judgments are based upon the
respective facts, are distinguishable on facts itself.
10 The issue, therefore, is whether the Commissioner was
1 2007 (2) BCR 777
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competent and had jurisdiction to pass an order disqualifying the
Petitioners. The Commissioner has taken support of the facts as
referred to in the respective proposals moved before the General Body
to come to a conclusion that the Petitioners stand disqualified. It
cannot be overlooked that the allegations as made against the
Petitioner to say that they are disqualified under Section 10(1D) of the
Act are denied / disputed by the Petitioners. The Commissioner in
such situation was under an obligation to refer the issue to the Judge
as Section 12 of the Act would mandate. However, the Commissioner
chose to himself exercise jurisdiction which was actually vested with
the Judge under Section 12 in passing an order disqualifying the
Petitioners. The Commissioner has admittedly acted without
jurisdiction in passing the impugned order to disqualify the
Petitioners. The contention on behalf of the Respondent to justify the
impugned order would render Section 12 and Section 405 of the Act
nugatory. In so observing, we are supported by the decisions of the
Division Bench this Court in the following cases:-
(i) The Commissioner, Nanded Waghala
Municipal Corporation Vs. Surjitsing s/o.
Jeevansing Girniwale, [2007(5) ALL MR
683],
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(ii) Noorjahan M.Aslam Ansari Vs. State of
Maharashtra & Ors., [2004(2) Bom.C.R.
468]
11 As regards the issue as to whether the Commissioner has
rightly invoked Section 10(1D) of the Act to disqualify the Petitioners
and whether the ingredients of the provision are satisfied to disqualify
the Petitioners, are the issues which would fall for consideration of the
Judge in exercising powers under Section 12 of the Act. Needless to
observe that it would be within the jurisdiction of the Judge to
consider whether the allegations as made against the Petitioners fall
within the parameters of Section 10(1D) of the Act and whether the
acts as alleged against the Petitioners are such acts done in the
capacity as a Councillor.
12 The power of declaration even if any, cannot be
utilised to disqualify the Petitioner by such declaration as issued by
the Municipal Commissioner. The dis-qualification should take
effect only after due and final decision by the Court/Judge. It is
relevant to note that once the matter is referred to the Judge,
there is no question of "deemed disqualification". The
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Councillor continue to act as elected member till the final decision by
the Judge.
13 Therefore, the following order :
ORDER
(1) All the writ petitions are allowed in terms of prayer (a).
(2) The respective impugned order dated 3 November 2015
are quashed and set aside.
(3) Rule in all the matters is made absolute accordingly.
(4) There shall be no order as to costs.
14 At this stage, learned counsel appearing for
Respondent/Corporation seeks stay of this order and contended that
ad-interim order already granted to continue for eight weeks.
Considering the reason so given while pronouncing the operative part,
no case is made out for oral request of stay. Therefore, oral request
for stay is accordingly rejected.
(G. S. KULKARNI, J.) (ANOOP V. MOHTA, J.)
