Bombay High Court
Lilabai Vikramsingh Rathod vs The State Of Maharashtra And ... on 5 May, 2016
Bench: S.P. Deshmukh
1 WP-1942.15.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO. 1942 OF 2015
1] Smt. Jyoti Pratapsingh Chadel,
Age: 26 years, Occu: Household,
2] Smt. Sushila w/o Thavara Rathod,
Age: 42 years, Occu: Household,
3] Smt. Noorjahanbee w/o Dulhekhan Pathan,
age: 50 years, Occu: Household,
4] Smt. Kalpana w/o Surendra Mabavi
Age: 35 years, Occu. Household,
All above R/o : Mahur, Tq. Mahur,
Dist. Nanded ... Petitioners
Versus
1] The Collector, Nanded
2] The Chief Officer
Municipal Council Mahur,
Tq. Mahur, Dist. Nanded
(Deleted as per order dated 19-06-2015)
3] Samar s/o Muralilal Tripathi
Age: 56 years, Occu: Social Service
And Business, R/o. Mahur,
Tq. Mahur, Dist. Nanded
4] Smt. Lilabai w/o Vikramsingh Rathod,
Age: 50 years, Occu: Household,
R/o: Ward No.3, Mahur,
5] Smt. Sayyad Shahanajabi Rahemat Ali
Age: Major, Occu. Household,
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6] Smt. Vandana Sadba Munde
Age: Major, Occu. Household,
Both Residents of Mahur,
Tq. Mahur, Dist. Nanded ... Respondents
---
Mr. S. S. Gangakhedkar, Advocate for petitioners
Mr. S. K. Tambe, Asstt. Govt. Pleader for respondent -State
Mr. P. R. Katneshwarkar, Advocate for respondent No.3
Mr. P. B. Rakhunde, Advocate for respondent No. 4
Mr. M. C. Ghode, Advocate for respondents No. 5 and 6
---
WITH
CIVIL APPLICATION NO. 10993 OF 2015
IN
WRIT PETITION NO. 1942 OF 2015
1. Smt. Sayyad Shahanajabi Rahemat Ali
Age: Major, Occu. Household,
2] Smt. Vandana Sadba Munde
Age: Major, Occu. Household,
Both Residents of Mahur,
Tq. Mahur, Dist. Nanded ... Applicants
Versus
1] Smt. Jyoti Pratapsingh Chadel,
Age: 26 years, Occu: Household,
2] Smt. Sushila w/o Thavara Rathod,
Age: 42 years, Occu: Household,
3] Smt. Noorjahanbee w/o Dulhekhan Pathan,
age: 50 years, Occu: Household,
4] Smt. Kalpana w/o Surendra Mabavi
Age: 35 years, Occu. Household,
5] Smt. Lilabai w/o Vikramsingh Rathod,
Age: 55 years, Occu: Councillor of
Nagar Panchayat Mahur and Household,
All above R/o : Mahur, Tq. Mahur,
Dist. Nanded
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6] The State of Maharashtra,
Through the District Collector,
Nanded
7] The Nagar Panchayat, Mahur
Tq. Mahur, Dist. Nanded
Through its Chief Executive Officer
8] Samar s/o Muralilal Tripathi ... Non applicants
Age: 56 years, Occu: Business & (Resps. No. 1 to 4
Social Service, R/o. Mahur, orig. petitioners in
Tq. Mahur, Dist. Nanded W.P.No.1942/2015;
Resp. No.5 - Original
Petitioner in Writ
Petition No. 2513 of
ig 2015; Resps. No. 6
to 8-Original resps.)
---
Mr. Madhav C. Ghode, Advocate for applicants
Mr. S.S. Gangakhedkar, Advocate for respondents No. 1 to 4
Mr. P. B. Rakhunde, Advocate for respondent No.5
Mr. S. K. Tambe, Asstt. Govt. Pleader for respondent No.6
Mr. P. R. Katneshwarkar, Advocate for respondent No.8
---
WITH
WRIT PETITION NO. 2513 OF 2015
Lilabai w/o Vikramsingh Rathod,
Age-55 years, Occu. Councillor of
Nagar Panchayat, Mahur & Household,
R/o. Mahur, Tq. Mahur, Dist. Nanded ... Petitioner
Versus
1] The State of Maharashtra
Through the District Collector, Nanded
2] The Nagar Panchayat Mahur,
Tq. Mahur, Dist. Nanded
Through its Chief Executive Officer
3] Samar Murlidhar Tripathi
Age: 56 years, Occu. Business
and Social Service
R/o. Mahur, Tq. Mahur, Dist. Nanded
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4] Smt. Sayyad Shahanajabi Rahemat Ali
Age: Major, Occu. Household
5] Smt. Vandana Sadba Munde
Age: Major, Occu. Household,
Both Resident of Mahur,
Tq. Mahur, Dist. Nanded ... Respondents
---
Mr. Pravin B. Rakhunde, Advocate for petitioner
Mr. S. K. Tambe, Asstt. Govt. Pleader for respondent No.1
Mr. P. R. Katneshwarkar, Advocate for respondent No.3
Mr. M. C. Ghode, Advocate for respondents No. 4 and 5
---
CORAM : SUNIL P. DESHMUKH, J.
DATE : 5th May, 2016
ORAL JUDGMENT :
1. The petitioners question propriety, legality and validity
of order passed by respondent No.1 - Collector, Nanded dated
31-01-2015 in the case bearing No.2013/MCA/K1/T1/CR-34,
invoking provisions of Section 3(1)(b) of Maharashtra Local
Authorities Members Disqualification Act, 1986 (hereinafter
referred to as "MLAMD Act"), whereunder petitioners have
been held to be disqualified to continue as councillors for the
remainder of the term of Mahur Nagar Panchayat
( hereinafter, 'MNP' ).
2. General elections to seventeen-members Nagar
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Panchayat of Mahur were held on 11-12-2011. In said
elections to MNP, petitioners among others, were set up as
candidates of Nationalist Congress Party (NCP). About eight
candidates of NCP were declared elected as councillors of MNP
on 12-12-2011. Party wise strength of seventeen-member
MNP had been as under:
Congress (I) 04
Shiv Sena 04
NCP ig 08
Independent 01
3. After hearing learned counsel for parties, it appears to
be a case, wherein, post-poll alliance between NCP and
Congress (I) party councillors had taken place assuming
power in the MNP. In the alliance arrangement, it had been
decided that for about 2.5 (2 ½ ) year post of president would
be enjoyed by a NCP councillor and the post of vice president
would be occupied by a Congress (I) councillor. Pursuant to
said arrangement, respondent no. 3 was elected as president
and one Abdul Munaf s/o Shaikh Ismail was elected as vice
president of MNP, from NCP and Congress (I) parties
respectively.
4. The arrangement continued to operate smoothly till
2013. In February, 2013, petitioners purportedly abandoned
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NCP with other councillors and formed Mahur Tirtha Kshetra Vikas
Aghadi. An intimation in respect of formation of aforesaid
aghadi to the Collector, Nanded, had been routed through MNP.
One of the councillors, however, later on retracted from the
aghadi and continued to be with NCP.
5. In the middle of April, 2013, petitioners had tendered
their resignations to the district and taluka presidents of NCP
through registered post acknowledgment due.
6. On 23-04-2013, said Aghadi members with other
councillors supporting them put in a requisition for a meeting
for "no confidence motion" against respondent no. 3. Pursuant
to the requisition, respondent no. 1 convened a special
meeting of MNP on 30-04-2013 and had appointed Sub
Divisional Officer, Kinwat, as presiding officer.
7. One Mr. Bapusaheb Deshmukh Gorthekar, the district
president of NCP, is stated to have issued direction to all NCP
councillors including petitioners commanding them to vote
against no confidence motion in the special meeting
scheduled on 30-04-2013, warning, contravention of the
direction would call for an action according to the provisions
of MLAMD Act. Said direction ('whip') by the district president
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had been sent by registered post acknowledgment due to the
councillors of NCP and petitioners. The 'whip' was stated to
have been served on said councillors also by affixing the same
on conspicuous part of their residences. The whip was also
stated to have been communicated before commencement of
the special meeting in the premises of MNP but the
communication had been refused to be received. Panchanamas
were accordingly executed.
8. In the meeting on 30-04-2013, no confidence motion
was put to vote and the same came to be passed by 14 votes
to 3. Consequently, respondent no. 3 came to be removed
from the post of president of MNP.
9. Respondent no. 3 had approached respondent no.1
under municipal petition, seeking disqualification of
petitioners pursuant to section 3 of MLAMD Act read with rule
6 of the Maharashtra Local Authority Members Disqualification
Rules, 1987 (MLAMD rules). Respondent no. 3 alleged that
petitioners stand disqualified on three grounds, namely;
(a) By formation of Mahur Tirtha Kshetra Vikas Aghadi ;
(b) By resignations giving up membership of NCP ;
(c) By acting contrary to directions of the district
president of NCP
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10. In the complaint before respondent no.1, respondent
no. 3 has averred that NCP is duly registered political party
with election commission of India and election commission of
Maharashtra and that district president of NCP is authorized to
issue directions ("whip") to members/councillors of the party
as per the constitution of NCP. An intimation had been given
pursuant to rule 3(5) of the MLAMD rules to respondent no. 1
on 07-05-2013 that breach of the directions committed by
petitioners has not been condoned by NCP. In the
proceedings, it has been contended by respondent no. 3 that
'whip' issued by the district president was communicated to
the NCP councillors, sending the same by registered post
acknowledgment due on 27-04-2013 and was also served on
them by affixing the same on a conspicuous part of their
residences on 29-04-2013 and further that it was also
communicated to NCP councillors in the premises of MNP by
tendering the same to them on 30-04-2013, service of which
had been refused by petitioners and panchanamas were
executed accordingly and despite that no confidence motion
was passed by majority of 14 councillors to 3.
11. The petitioners resisted the claim under disqualification
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proceedings filed by respondent no.3 on various grounds,
inter alia, purporting to contend that once a person gets
elected as a councillor, the party loses its significance and he
represents public at large catering to needs of citizens and is
answerable to public rather than to party. It had been
contended that formation of Mahur Tirtha Kshetra Vikas Aghadi , by
petitioners is, therefore, not material. Petitioners contend that
their resignations are not significant and that a contradictory
stand is being taken by respondent no. 3. The petitioners had
denied, and questioned the authority of Mr. Bapusaheb
Gorthekar who had purportedly issued directions to vote in
favour of respondent no. 3. According to petitioners, he was
not authorized nor there was any service of directions on
them. The contention with regard to directions had been
affixed on the residences of the petitioners and they were
communicated on 30-04-2013, is incorrect and false and
there is no communication of alleged whip to the petitioners.
It is contended that there is anarchy at various levels in
political parties. Petitioners had as such demanded
production of certain documents as referred to in paragraph
no. 7 of their response to disqualification proceeding and
prayed for dismissal of the same with costs of Rs. 50,000/-.
10 WP-1942.15.doc
12. Upon aforesaid, in all five points to the following effect,
were framed by respondent no.1, namely,
(i) Whether petitioners (respondents in
disqualification proceedings) are elected
councilors being set up by NCP ?
(ii) Whether Shree Bapusaheb Gorthekar being the
district president of NCP is empowered to issue
whip dated 26-04-2013 directing NCP councillors
to vote against no confidence motion in the
meeting dated 30-04-2013 ?
(iii)
Whether the whip was served on all the concerned
members/councillors ?
(iv) Whether there was alliance between NCP and
Congress (I) party ?
(v) Whether the petitioners incurred disqualification
as provided under section 3(1)(b) of MLAMD
Act ? ,
and had answered all the points in the affirmative.
13. It appears that the petitioners had not cross examined
respondent no. 3 and his witnesses and no cross order was
passed. It is contended on behalf of petitioners that due to
some difficulty witnesses on behalf of respondent no. 3 could
not be cross examined by them. Albeit, order of no cross is
stated to have been refused to be set aside upon an
application by petitioners for the same. Respondent no. 1 has
observed that petitioners had not cross examined witnesses of
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respondent no. 3.
14. A letter issued in favour of Mr. Bapusaheb Gorthekar on
27-01-2014 which came along with an appendix of list of
district presidents of NCP purportedly finalized on
11-07-2012, Mr. Gorthekar's name finding place at serial no.
32, has been relied upon by respondent No.1 to consider that
Mr. Gorthekar had been the district president (rural) of NCP.
15.
Respondent no. 1 appears to have considered that since
petitioners were elected as candidates of NCP, and their
resignations having not been accepted, they continued to be
members of NCP and that NCP is admittedly a political party.
A party president would have every right to issue whip when
he feels that internal differences are detrimental to the
interest of the party. The subject of no confidence motion
being not directly touching internal business of nagar
panchayat, issuing direction / whip does not cause
interference in internal affairs of nagar panchayat and that
evidence given for respondent no. 3 has gone unrebutted.
16. In respect of service of direction/whip, taluka president
of NCP had been examined who testified that he had pasted
the notices on conspicuous part of the houses of petitioners
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on 29-04-2013 and panchanamas were accordingly executed in
the presence of Vishal Shinde and Atul Belkhode. These two
witnesses supported aforesaid testimony of taluka president
of NCP. Respondent no. 1 also relied on postal service on
petitioners through registered post acknowledgment due and
the panchanamas dated 30-04-2013 about communication of
directions to the petitioners. With aforesaid, the petitioners
were considered to be served with the 'whip'.
17. Respondent no. 1 came to the conclusion that despite
communication of direction by Mr. Babasaheb Gorthekar - the
district president of NCP, to vote against no confidence
motion, petitioners had voluntarily discarded the same.
Respondent no. 1 considered that since the petitioners did not
merge into or were not given membership of Congress (I)
party nor there was any amalgamation, and since petitioners
had formed a separate group / Aghadi known as Mahur Tirtha
Kshetra Vikas Aghadi, purportedly relying on a decision by the
supreme court in the case - Civil Appeals No. 10452 - 10457 of
2010 Kedar S. Deshpande vs. Bhor Municipal Council and others
reported in (2011) 2 SCC 654, wherein according to respondent
no. 1 it has been considered that the act of forming different
group and resigning the previous political party amounts to
13 WP-1942.15.doc
defection. He thus deduced that it cannot be said that no
disqualification had been incurred by present petitioners.
18. Respondent no. 1 - Collector by his order dated
31-01-2015, disqualified the petitioners under section 3 (1)
(b) of the MLAMD Act and from holding the post of councillors
for the remainder of the term.
19. Learned counsel Mr. Gangakhedkar and Mr. Rakhunde
for the petitioners in respective writ petitions contend that
apart from factual, there are various legal aspects which are
fundamental in nature and those would crumble away the
very foundation of disqualification proceedings.
20. According to the learned counsel, there are lot of
circumstances which have not been properly adverted to by
respondent no. 1 while passing impugned order dated
31-1-2015. The events have not been appreciated properly
and appreciation is not in accordance with the record.
21. Learned counsel contend on behalf of the petitioners
that mandatory rules 6 and 7 of the MLAMD Rules have not
been followed in the proceedings and have been overlooked
while the matter was decided to be proceeded with. Non
14 WP-1942.15.doc
observance of said rules vitiate the entire proceedings for
disqualification. It was incumbent on respondent no. 1 to see
that requirements under rule 6 are complied with and then
only he would be able to take cognizance of the proceedings.
22. Learned counsel submit that the person who had issued
alleged directions / command to vote in favour of respondent
no. 3 cannot be said to be an authorized person as required
under the provisions nor can it be said that the same had
been issued by a political party. Authorization in Mr.
Gorthekar's favour had come subsequent to passing of no
confidence resolution against respondent no. 3. Such an
authorization for a past act, having regard to provisions is
improper, illegal and would not at all affect the petitioners.
23. It is submitted, it would be pertinent to note that
reliance has been placed by respondent no. 1 upon
communication dated 27-01-2014 in order to consider that
the district president of NCP has been empowered to issue
whip, however, to consider this particular aspect about
empowerment of a person as district president, it was
incumbent to have verified particularly as to whether copies of
rules, regulations, constitution etc. had been furnished as
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required under the rules; whether such rules and regulations
refer to any authorization or power with a party president. It
is too much of assumption in the absence of rules and
regulations having been referred to. In the circumstances, it
would be inappropriate to consider that simply being party
president, a person would automatically have power and
authority to issue direction / whip unless the same is borne
out by material supporting the same. He submits that in any
case, it is obvious that authorization, if any, is during
pendency of proceeding which cannot be said to cover the
meeting dated 30-04-2013.
24. Petitioners also dispute service on them of direction /
whip by the district president (rural) of NCP and contend that
as a matter of fact, service by registered post
acknowledgment due has been after the event of meeting
dated 30-04-2013 had been over and impugned order
conspicuously skips reference to the same. They purport to
draw attention to postal receipts/documents which, according
to them, clearly depict that the notice had been received at
their end only on 01-05-2013 and not before. According to
petitioners, there is no service on them by affixing directions
on their residences. The panchanamas of affixing direction on
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their residences annexed at pages 52 to 65 are only paper
panchanamas without there being real service on them. They,
refer to documents at pages 44, 45 and 46 of writ petition
paper book which are purportedly issued on 26-04-2013 and
shown to have been received by addressees on 27-04-2013
who continued to be NCP councillors and not on petitioners.
So is the case with respect to documents at writ petition
paper-book pages 57 to 66.
ig According to petitioners, their
contentions on all these aspects have not been considered or
even referred to. The impugned order is deficient in respect
of consideration of these vital submissions.
25. It is contended that the purported panchanamas are
bogus and forged record, for, it is evident from the fact that
whip shows that it had been issued only on 30-04-2013 which
in itself is sufficient to indicate that the alleged whip had
never been issued to petitioners on 26-04-2013, and record
bears that it was issued only to such persons who had not
been members of Aghadi formed by petitioners and yet it is
alleged to have been served on them on 29-04-2013. As
such the documents - purported panchanamas cannot be relied
on to consider that the petitioners had ever been served with
alleged whip.
17 WP-1942.15.doc
26. Learned counsel refer to that the MLAMD Act, in section
2 (e), local authorities are specified which does not include '
nagar panchayat '.
27. They also refer to section 2(h) of the MLAMD Act
defining that 'Municipal Council' means a 'municipal council'
constituted under the Maharashtra Municipalities Act, 1965
and contend, the same makes unequivocally clear that a
municipal council would not be any other authority other than
council constituted under Maharashtra Municipal Councils,
Nagar Panchayats and Industrial Townships Act, 1965
("Municipalities Act"), a name as acquired upon amendment
to the Maharashtra Municipalities Act, 1965. According to
them, even after amendment to the Municipalities Act,
definition of 'council' has not undergone any change or
alteration, so is the case of definition of "local authority"
under section 2 (e) of the MLAMD Act.
28. Learned counsel submit that, MLAMD Act defines the
local authority to mean, inter alia, a municipal council and not
nagar panchayat. A municipal council is a council as defined
under the Municipalities Act which also says a council would
be with reference to a smaller urban area and not a
18 WP-1942.15.doc
transitional area. The MLAMD Act refers to and applies to
steadfast local authorities which do not at all include nagar
panchayat.
29. The learned counsel Mr. Gangakhedkar and Mr.
Rakhunde for petitioners in respective writ petitions
vehemently submit that a predominant legal question arises
in the petitions, as to whether MLAMD Act would apply at all
to disqualify a councillor of nagar panchayat. Learned counsel
contend, initiation of the disqualification proceeding under
MLAMD Act and MLAMD rules itself is absolutely untenable
and is a nullity. According to them, provisions of MLAMD Act
and rules thereunder do not apply to and take within their
sweep councillors of nagar panchayat, nagar panchayat being
not a local authority or a municipal council under the
provisions of the MLAMD Act.
30. Mr. Katneshwarkar, appearing for respondent No.3, the
learned counsel leading arguments for respondents, counters
aforesaid submissions on behalf of the petitioners submitting
that seventy fourth amendment to the Constitution of India in
the year 1992, introduced part IX A - incorporating provisions
with respect to municipalities. Article 243P (e) defines
19 WP-1942.15.doc
'Municipality' means an institution of self-government
constituted under Article 243Q, which, inter alia, includes
'nagar panchayat'.
31. The learned advocates submit that consequent upon
amendment to the Constitution of India, Municipalities Act,
1965 underwent corresponding amendments incorporating
provisions bringing the same in tune with part IX A of the
Constitution of India.
32. An argument has been advanced on behalf of
respondents that as "Nagar Panchayat" is finding place in the
Constitution of India, under caption "the municipalities", it is
indeed a municipality. Nagar Panchayat is a constitutionally
created and accepted municipality. Ostensibly, under
provisions of the Constitution read with definition clauses
under the Municipalities Act, it may appear that nagar
panchayat does not strictly fall within the definition of council
under the Municipalities Act, yet it cannot be ignored that it
would be a municipality - a municipal council for that matter,
on a smaller scale, as Nagar Panchayat bears all the
characteristics of a smaller municipal council and the
municipal council having been included in the definition of
20 WP-1942.15.doc
local authority under MLAMD Act for a "miss", of specific
reference to nagar panchayat upon amending Municipalities
Act, cannot strip Nagar Panchayat of its characteristic of it
being otherwise a municipal council and thus is a local
authority.
33. Learned counsel submit that there is no practical
difference between a Nagar Panchayat and a Municipal
Council. A Nagar Panchayat does the same function as
municipal council. So also the administration is very much
similar. Nagar Panchayat, like a municipal council, going by
population ratio is governed by councillors. It is discernible
that Nagar Panchayat meant for population up to 25,000 is
almost a C-class municipal council, as for a C-class municipal
council, minimum population shall be 25,000. On publication
of notification for transitional area, all the provisions of the
Municipalities Act as in the case of municipal council, apply to
said area. Like municipal council, Nagar Panchayat is also a
body corporate and has perpetual succession, a common seal,
power to acquire and dispose of property and enter into
contract and can sue and be sued. Section 341-B of the
Municipalities Act provides for constitution and elections to
Nagar Panchayat of seventeen directly elected councillors by
21 WP-1942.15.doc
dividing the transitional area into territorial constituencies, to
be known as wards and that the provisions of section 10 of
the Municipalities Act relating to reservation to Scheduled
Castes, Scheduled Tribes, the Backward Class of Citizens and
women and section 51 (1A) relating to reservation of office of
President have also been made applicable. Provisions of
Municipalities Act, which apply to municipal councils can apply
to the Nagar Panchayats including the power to levy tax. The
counsel, therefore, submit that Nagar Panchayat being
practically Class-C municipal council, it would be and it is
indeed a local authority for all purposes.
34. It is, as such, submitted that it being a local authority,
since amendment to the Constitution has caused amendment
to be carried out in Municipalities Act, incorporating Nagar
Panchayat in the same, it being Municipality like the municipal
council for absence of specific reference to Nagar Panchayat in
the MLAMD Act, would not be able to hold the basic object
and intrinsic purpose underlying the MLAMD Act to control and
curb defection of elected councillors of local authorities.
35. Mr. Katneshwarkar submits that it will have to be
considered and it is indeed intended that MLAMD Act is to
22 WP-1942.15.doc
apply to local authorities like municipalities. He submits that
absence of consequential specific reference to Nagar
Panchayat after amendment of Constitution of India and
Municipalities Act under the term 'local authorities' as defined
under the MLAMD Act under section 2(e) shall not prevent
application of the enactment in respect of municipality, which
is Nagar Panchayat, a local authority. Only for want of its
specific incorporation in section 2 (e) and 2 (h) of the MLAMD
Act, it cannot be said that the enactment would not apply to
Nagar Panchayats.
36. Mr. Katneshwarkar, learned advocate places reliance on
the judgment in the case of "Kedar Shashikant Deshpande Vs. Bhor
Municipal Council and Others" reported in 2011 (1) Bom.C.R. 531.
According to him, the case has been pressed into service to
consider that the petitioners cannot be permitted to argue for
the first time before the High Court that respondent No.1 -
Collector had no jurisdiction to entertain disqualification
petition. According to learned advocate, since the point of
applicability of the MLAMD Act has been raised for the first
time before this court, it as well cannot be permitted to be
argued, as considered in said case.
23 WP-1942.15.doc
37. Learned advocate for respondent No.3 places strong
reliance on the commentary of Maxwell on interpretation of
statutes and refers to chapter 6 about construction to prevent
evasion or abuse.
38. Next citation relied on behalf of respondents is in the
case of "Shantabai Dattu Surwade Vs. State of Maharashtra and Others"
reported in 2011 (3) Bom.C.R. 277. According to them, it is
observed in said judgment that member of a party has to
obey the whip and that directives issued by a leader are
binding on him, as such, the order passed by respondent No.1
cannot be faulted with.
39. Learned advocate Mr. Katneshwarkar submits that
having regard to the development, particularly, amendment to
the Constitution of India and consequential amendment to the
Municipalities Act, observations by the Full Bench of this Court
in Writ Petition No.11278 of 2012 and other connected
matters in paragraph No.47A would be pertinent. Paragraph
No.47A is as under;
" 47(A) In the case of State of Uttar Pradesh and Others vs.
Pradhan Sangh Kshettra Samiti and Others reported in AIR
1995 SC 1512, the Hon'ble Supreme Court has observed :-
24 WP-1942.15.doc
"7. It is common knowledge that the needs of the people
change with the development in the economic, scientific and
technological fields as also with the developments in
transport and communication. With them, the concept of
self-sufficiency and the means, mode and range of self-
governance also change. What is more, the units of self-
governance at the lower level being interrelated and
integrated with those at the higher levels as parts of the
whole scheme of administration and development in the
State, have to respond to and fall in line with the growth in
the size and operation of the units at the higher level to form
a coordinated democratic polity and administrative
machinery. The concept of grassroot or lowest level
administration must, therefore, necessarily change with the
advance and progress at other levels. The governing units at
all levels have to fit in in a pattern, and a scheme for
administration both for law and order and economic
growth. They have to act as vehicles of overall stability and
progress. For that purpose, their constitution and
functioning have to be in conformity with the larger social,
political and economic goals.
Hence there cannot be any immutable social, political,
economic or organisational concept of village as a self
governing unit. In a developing country like ours, where the
population is growing fast, where the society is in ferment
on all fronts, where divisive forces of all kinds abound,
where the vast majority of population is illiterate and is the
victim of ignorance, superstition, blind-faith, biases and
25 WP-1942.15.doc
prejudices, and is shackled by tradition, and irrational
customs and practices, there is an urgent need to evolve
means to unite and integrate the society, to expose the
populace to larger and higher goals,to imbibe in them the
wider perspectives and to forge a socially cohesive front for
breaking the barriers of race, caste, class, religion and
region rather than to pander to the age-old, self-centered
physical and mental barriers.
.......... There is further nothing in the Mahathma Gandhi's
advocacy of "village panchayat raj" from which the High
Court has taken support to suggest that the village that
Mahatmaji had in mind was of a particular description or
dimension. It is amusing in this respect to note that the High
Court in support of its concept of village has even gone to
the extent of observing that "it must be remembered that in
considering the aspirations of the people, more so at the
first level of democracy, the phenomena of a case of identity
of the people, their sentiments, feelings and chauvinism,
cannot be forgotten" the considerations which were, with
respect, farthest from the mind of Mahathmaji and against
which he fought throughout his life. If separate identities,
chauvinism, divisible sentiments and feelings arc nurtured
from the grassroot level, they are bound to erode the
foundation of the unity and integrity of the country and
should be the last thing on the social and political agenda of
the country. On the other hand, the need of the day is to
create social, political and economic entities crossing all
barriers and wedded to the nationhood as the ultimate goal.
26 WP-1942.15.doc
Anthropological and sociological entities may be natural so
far as the blood and familial relationships and attachments
go and have their place in certain limited spheres. But they
have no place while shaping democratic political and
administrative units. Nor are they necessarily conducive to
social and economic progress. On the other hand, they may
prove and have in the past proved a positive hindrance to
them. ... ... ... Sometimes, smaller the social, political and
administrative entities, the greater the dominance of one
section or the other and deeper the prejudices. The need is
to organise viable social, political, economic and
administrative units of optimum size at the lowest level on a
rational basis keeping in mind the size of population, the
needs of social and economic development, availability of
resources, the transport and communication facilities,
convenience of administration and other relevant factors. ...
... ... What is further forgotten is that over the years, not
only the population in the rural areas has grown
enormously but the complexion of the rural areas has also
undergone a change. With the increasing pressure on land,
there has been a steady migration from the rural to the
urban and semi-urban areas. Some villages are almost
deserted while others survive much below the poverty line.
At the same time, some have emerged as small packets of
comparative prosperity, thanks to marginal industrial and
commercial activities around them and the nearness to the
urban and semi-urban areas. "
40. Learned advocates for respondents contend that
27 WP-1942.15.doc
provisions of the MLAMD Act are in addition to and not in
derogation of the Municipalities Act, as contained in section
10(2) of said enactment and that section 16 of the
Municipalities Act provides for disqualification for becoming a
councillor, which incorporates under sub section 1A that a
person who is disqualified under the MLAMD Act for being
councillor, shall cease to hold office as councillor.
41.
Learned counsel for respondents, further submit that
the petitioners purport to dispute the factual position with
regard to the service of direction/ whip and authority and
competence of the person issuing the direction/ whip. These
aspects being involving disputed questions, would not call for
exercise of powers by this court.
42. In reply to aforesaid contentions and submissions on
behalf of respondents, learned advocates for the petitioners
contend that the submissions being advanced have no
concrete foundation in MLAMD Act or Municipalities Act or
even in the Constitution of India. They submit and point out,
the Constitution of India under Article 243Q stipulates that
municipal council would be for a 'smaller urban area' and
Nagar Panchayat would be for a ' transitional area.' According
28 WP-1942.15.doc
to them, so long as transitional area is not developed into a
smaller urban area, in the present case which admittedly is
not, argument would not hold any water.
43. It is contended by counsel for petitioners that the
MLAMD Act defines local authority to mean only the
authorities as are specifically enumerated in section 2 (e) of
the MLAMD Act and confines the same to the four categories
contained therein which do not include Nagar Panchayat.
44. In support of their submissions, they rely on a decision
of the Supreme Court in the case of "Bharat Co-operative Bank
(Mumbai) Ltd Vs. Co-operative Bank Employees Union" reported in AIR
2007 SC 2320, wherein, according to them, interpretation has
been placed on the word "means" when it is used in the
definition and also when words "means and includes" are
used. For said purpose they draw attention to paragraph
No.22, which is reproduced herein below for ready reference:-
" 22. Section 2 (bb) of the ID Act as initially introduced by Act 54 of
1949 used the word "means.. and includes" and was confined to a
"Banking Company" as defined in Section 5of the Banking
Companies Act, 1949, having branches or other establishments in
more than one province and includes Imperial Bank of India.
Similarly, Section 2 (kk), which was also introduced by Act 54 of
1949, defines Insurance Company as "an Insurance Company
29 WP-1942.15.doc
defined in Section 2of the Insurance Act, 1938 (IV of 1938), having
branches or other establishments in more than one province". It is
trite to say that when in the definition clause given in any statute
the word "means" is used, what follows is intended to speak
exhaustively. When the phrase "means" is used in the definition, to
borrow the words of Lord Esher M.R. in Gough vs. Gough , it is a
"hard and fast" definition and no meaning other than that which is
put in the definition can be assigned to the same. (Also see: P.
Kasilingam and Ors. Vs. P.S. G. Colege of Technology and Others.
On the other hand, when the word "includes" is used in the definition,
the legislature does not intend to restrict the definition; makes the
definition enumerative but not exhaustive. That is to say, the term
defined will retain its ordinary meaning but its scope would be
extended to bring within it matters, which in its ordinary meaning
may or may not comprise. Therefore, the use of the word "means"
followed by the word "includes" in Section 2(bb) of the ID Act is
clearly indicative of the legislative intent to make the definition
exhaustive and would cover only those banking companies which fall
within the purview of the definition and no other. "
45. They submit that when the word "means" is used, it is
a hard and fast definition and no meaning other than that
which is put in the definition can be assigned to the same.
46. They submit, it would be hazardous to go beyond the
local authorities as have been referred to under definition
clause 2 (e) of the MLAMD Act.
47. They press into service a decision of the Supreme Court
30 WP-1942.15.doc
in the case of "Sadashiv H. Patil Vs. Vithal D. Teke and Others"
reported in AIR 2000 SC 3044 referring to paragraph No.14 of
said judgment, which reads thus -
" 14. A finding as to disqualification under the Act has the effect
of unseating a person from an elected office held by him pursuant to
his victory at the polls in accordance with democratic procedure of
constituting a local authority. The consequences befall not only him
as an individual but also the constituency represented by him which
would cease to be represented on account of his having been
disqualified. Looking at the penal consequences flowing from an
elected Councillor being subjected to disqualification and its
repercussion on the functioning of the local body as also the city or
township governed by the local body the provisions have to be
construed strictly. A rigorous compliance with the provisions of the
Act and the Rules must be shown to have taken place while dealing
with a reference under Section 7 of the Act. "
48. According to learned advocates for the petitioners,
aforesaid observations require that a rigorous compliance of
the provisions of the Act and the Rules be shown. It is
submitted that since factual and procedural aspects are not in
consonance with and in compliance of the provisions of the
MLAMD statute and rules thereunder, and the legal one that
the MLAMD Act itself being inapplicable, the proceedings
thereunder, as stated above, are void and non-est.
49. The arguments in respect of section 10 (2) of the
31 WP-1942.15.doc
MLAMD Act have been sought to be repelled by the petitioners
referring to sub section (1) of section 10 of the MLAMD Act,
which stipulates that provisions of this Act shall have
overriding effect on inconsistent provisions of any other law.
50. It is contended that whole proceedings have been
rendered redundant. It is, therefore, submitted that the
petitions be allowed and the impugned order be set aside.
51.
While arguments have been so advanced as aforesaid
on either side, it would be pertinent to refer to and take into
consideration various relevant provisions of law.
52. Section 2 (e) of the MLAMD Act defines the term 'local
authority' thus;
'' 2 (e) ' local authority ' means-
(i) a Municipal Corporation,
(ii) a Municipal Council,
(iii) a Zilla Parishad, or
(iv) a Panchayat Samiti; ''
53. Section 2 (h) under said enactment defines the term
'municipal council' clarifying as under;
'' 2 (h) 'Municipal Council' means a Municipal Council
constituted under the Maharashtra Municipalities Act, 1965 ''
32 WP-1942.15.doc
54. It would be useful to refer to what is meant by 'council'
under the Municipalities Act. The term 'council' is defined
under section 2 (6) of the Municipalities Act, which reads
thus-
" 2 (6) 'Council' means a municipal council constituted or deemed to
have been constituted for a smaller urban area specified in a
notification issued in this respect, under clause (2) of Article 243-Q
of the Constitution of India or under sub-section (2) of section 3 of
this Act "
55.
In both the places, definitions 2 (e) and 2 (h), defining
local authority and municipal council respectively under
MLAMD Act, the term "Nagar Panchayat" does not figure.
Municipal council has been defined under clause 2 (h), to
mean a municipal council as constituted under the
Municipalities Act. A council, as can be seen as referred to
herein above, under section 2 (6) of the Municipalities Act,
specifically means a council for a smaller urban area with
reference to Article 243Q of the Constitution of India or under
its section 3 (2).
56. Articles 243-P (e) and 243-Q of the Constitution of India
deal with constitution of municipalities, read thus -
" 243-P Definitions - In this part, unless the context otherwise
33 WP-1942.15.doc
requires,-
(a) .....
(b) .....
(c) .....
(d) .....
(e) "Municipality" means an institution of self-government
constituted under article 243Q;
(f)....
(g)...
243-Q. Constitution of Municipalities (1) There shall be constituted
in every State,
(a) a Nagar Panchayat (by whatever name called) for a transitional
area, that is to say, an area in transition from a rural area to an
urban area
(b) a Municipal Council for a smaller urban area; and
(c) a Municipal Corporation for a larger urban area, in accordance
with the provisions of this Part:
Provided that a Municipality under this clause may not be constituted
in such urban area or part thereof as the Governor may, having
regard to the size of tile area and the municipal services being
provided or proposed to be provided by an industrial establishment in
that area and such other factors as he may deem fit, by public
notification, specify to be an industrial township
(2) In this article, a transitional area, a smaller urban area or a
larger urban area means such area as the Governor may, having
regard to the population of the area, the density of the population
therein, the revenue generated for local administration, the
percentage of employment in non agricultural activities, the
economic importance or such other factors as he may deem fit,
specify by public notification for the purposes of this Part "
57. Sub-section (2) of section 3 of the Municipalities Act,
reads thus -
34 WP-1942.15.doc
" (2) Save as provided in sub-section (1), the State Government may,
having regard to the factors mentioned in clause (2) of Article 243-Q
of the Constitution of India, specify, by notification in the Official
Gazette, any local area as a smaller urban area;
Provided that no such area shall be so specified as smaller urban
area unless the State Government, after making such inquiry as it
may deem fit is satisfied that -
(a) the population of such area is not less than 25,000; and
(b) the percentage of employment in no-agricultural activities in
such area is not less than thirty five per cent."
58. Definition of 'Nagar Panchayat' as appearing under
section 2 sub-section (25A), is as under;
" 2 (25A). 'Nagar Panchayat' means a Nagar Panchayat constituted
for a transitional area notified under Section 341 A of this Act; "
59. Section 341A of the Municipalities Act reads;
" 341A. Specification of a transitional area and incorporation of a
Nagar Panchayat
(1) The State Government may, having regard to the factors
mentioned in clause (2) of Article 243Q of the Constitution of India,
specify, by notification in the official gazette, an area in transition
from a rural to an urban area to be a transitional area;
Provided that, no such area shall be so specified as a
transitional area unless-
(a) such area has a population of not less than ten thousand and
35 WP-1942.15.doc
not more than twenty five thousand; and
(b) such area is not more than twenty kilometers away from the
territorial limits of any Municipal Corporation or a "A" Class
Council and the percentage of employment in non-agricultural
activities in such area is not less than twenty five percent; or
(c) such area is more than twenty kilometers away from the
territorial limits of any Municipal Corporation or a "A" Class
Council but the percentage of employment in non-agriculture
activities in such areas is not less than fifty percent.
[(1A) Notwithstanding anything contained in the proviso to sub-
section (1), the State Government may, by notification in the official
gazette, declare an area which is a District Headquarter or a Taluka
Headquarter to be a transitional area.
(1B) Prior to the publication of a notification under sub-section (1)
or (1A), the procedure prescribed in sub-sections (3), (4) and (5) of
section 3 shall mutatis mutandis be followed.]
(2) For every transitional area so specified under sub-section (1),
there shall be constituted a Nagar Panchayat as provided in section
341B which shall be known by the name of Nagar Panchayat. Every
such Nagar Panchayat shall be a body corporate and shall have
perpetual succession and a common seal with power to acquire, hold
and dispose of property and to enter into contract and may by the
said name sue and be sued. "
60. Under part IX A of the Constitution of India,
municipality means an institution of self government
constituted under article 243Q. Article 243Q (1) (a) speaks of
36 WP-1942.15.doc
a nagar panchayat for a transitional area from rural to urban.
Article 243Q (1) (b) refers to that municipal council would be
for a smaller urban area and article 243Q (1) (c) to that a
municipal corporation for a larger urban area. Thus, under
the scheme, three municipalities have been contemplated viz;
nagar panchayat, municipal council and municipal corporation
depending upon the nature and sizes of the areas.
61. Attention
needs to be given to that under the
Constitutional provisions municipal council has been referred
to specifically for a smaller urban area and Nagar Panchayat
is with reference to a transitional area from rural to urban. As
such, it is a transformed area into smaller urban from rural
may be able to acquire the status of municipal council, as
considered under the Constitutional provisions. Albeit, Nagar
Panchayat may be a municipality under the Constitution, yet
it is not considered as an urban area, either smaller or larger
for forming a council / corporation and as such, is not
considered to be a municipal council either in the Constitution
or under the Municipalities Act even on amendment.
62. Even if under Part IX A of the Constitution, nagar
pancnahayt is a municipality or municipal body, however, it is
37 WP-1942.15.doc
a municipality with reference to transitional area. A municipal
council is for a smaller urban area. In the present context, it
is nobody's case that any notification for smaller urban area
has been issued under Article 243Q of the Constitution of
India or pursuant to section 3 (2) of the Municipalities Act or
for that matter MNP is a smaller urban area.
63. Section 341C of the Municipalities Act also to quite a
long extent reflects that the provisions of the Municipalities
Act would not merely upon creation of 'nagar Panchayat' ipso
facto apply to nagar panchayat unless they are specifically
made applicable by an order to be published in official
gazette. This is an indication of that the State Legislature
does not contemplate nagar panchayat to be a municipal
council as defined under the Municipalities Act or for that
matter MLAMD Act. Section 341C (1) reads thus -
" 341C. Power to extend provisions of this Act relating to Councils to
a transitional area.
(1) The State Government may, by order to be published in the
Official Gazette, apply to a transitional area, with such incidental or
consequential modification as the State Government may consider
necessary for giving effect to the provisions of this Chapter, any
provisions of this Act which apply to a Municipal Council for a "C"
Class smaller urban area. "
38 WP-1942.15.doc
64. It is being contended on behalf of respondent no. 3 that
'nagar panchayat' had not been envisaged, when the term
'local authority' came to be defined while enacting MLAMD Act
and its emergence is subsequent to MLAMD Act and as such,
it could not be referred to when MLAMD Act had been
enacted. If this being so, when the Municipalities Act
underwent amendments after introduction of part IX A of the
Constitution of ig India containing nagar panchayat as
municipality, the State legislature has not while amending
Municipalities Act included into definition of 'local authority'
under section 2 (e) of the MLAMD Act a nagar panchayat.
65. It will have to be borne in mind that the Municipalities
Act, 1965 has been in operation from a very long time even
before the MLAMD Act had been enacted. The term 'local
authority' thereunder has been defined as under;
" 2 (20) 'local authority' means a Council or a Municipal
Corporation constituted under the Bombay Municipal Corporation
Act, or the Bombay Provincial Municipal Corporations Act, 1949 or
the City of Nagpur Corporation Act, 1948, or a Zilla Parishad
constituted under the Maharashtra Zilla Parishad and Panchayat
Samitis Act, 1961, or a village panchayat under the Bombay Village
Panchayat Act, 1958. "
39 WP-1942.15.doc
66. Section 2 (15) of the Maharashtra Regional and Town
Planning Act, 1966 defines the term 'local authority'
incorporating 'nagar panchayat' therein since 2000 on
amendment, thus;
" (15) "local authority" means
(a) the Bombay Municipal Corporation constituted under the Bombay
Municipal Corporation Act, or the Nagpur Municipal Corporation Act,
1948, or any Municipal corporation constituted under the Bombay
Municipal Corporation Act, 1949,
[(b) a Council and a Nagar Panchayat constituted under the Maharashtra
Municipal Councils, Nagar Panchayats and Industrial Township Act 1965,]
(c) (i) a Zilla Parishad constituted under the Maharashtra Zilla Parishads
and Panchayat Samitis Act, 1961,
[(ii) the Authority constituted under the Maharashtra Housing and Area
Development Act, 1976],
(iii) the Nagpur Improvement Trust constituted under the Nagpur
Improvement Trust Act, 1936
which is permitted by the State Government for any area under its
jurisdiction to exercise the powers of a Planning Authority under this Act; "
67. It would be pertinent to note that the Municipalities Act
defines local authorities to be municipal councils, municipal
corporations or village panchayats and under the MLAMD Act
it defines the local authorities to be municipal corporations,
municipal councils, zilla parishads and panchayat samitis.
Whereas, Legislature has, into definition of 'local authority'
under the Maharashtra Regional Town Planning Act, 1966
40 WP-1942.15.doc
(MRTP Act), by an amendment of 2000 inserted nagar
panchayats alongside municipal corporations, zilla parishads,
Maharashtra Housing and Area Development Authority and
Nagpur Improvement Trust. Thus, the legislature under its
power and authority goes on to specifically define what should
local authority mean in a particular legislation. Aforesaid gives
clear indication of that the State legislature ascribes a
particular meaning to the term 'local authority' in the
concerned enactment.
68. When amendments to the Constitution as well as
Municipalities Act had already taken place around 1992, and
even when, it would be required to be noted that amendment
to the term 'local authority' defined under MRTP Act,1966
had taken place in the year 2000 incorporating Nagar
Panchayat in the same, yet the definition of 'local authority'
under the MLAMD Act had not been touched and/or altered.
Thus, the situation markedly shows that the legislature did
not intend to include nagar panchayat as local authority under
the MLAMD Act.
69. While MLAMD Act had been enacted, the village
panchayat was being considered as a local authority under the
41 WP-1942.15.doc
Municipalities Act and yet, the State legislature in its wisdom,
though had included municipal council as a 'local authority',
had not included village panchayat as a local authority.
70. It may be that in an effort to democratize the country,
from ground level, certain authorities viz., village panchayats,
municipal councils, municipal corporations, have seen their
emergence, yet one may not be able to overlook that despite
village panchayat
ig being a statutorily recognized local
authority under Municipalities Act, has been excluded from
being considered as such in definition clause while MLAMD Act
had been enacted. For whatever reasons village panchayat
had not been included, the legislature in its wisdom has not
included village panchayat and so is the case while
incorporating amendments pursuant to introduction of part IX
A to the Constitution of India in the Municipalities Act. Neither
village panchayat nor Nagar Panchayat have been referred to
and incorporated in the MLAMD Act.
71. Regard would be required to be given to that whenever
legislature has thought it proper in its wisdom, the term 'local
authority' has been defined ascribing to it a particular
meaning in the definition.
42 WP-1942.15.doc
72. It is discernible that the State legislature is disinclined
to cover nagar panchayat under MLAMD Act, as even after the
amendments to the Constitution and consequently to
Municipalities Act and even thereafter in 2000 while nagar
panchayat has been included into the definition of 'local
authority' under Maharashtra Regional Town Planning Act,
1966, it has not done so by inclusion of nagar panchayat in
definition clause under MLAMD Act.
73. The legislature in its wisdom does not appear to intend
to include all local self governing bodies to be considered as
local authority under the provisions of MLAMD Act and as such
has specifically referred to what would be the ' local authority'
and has continued with the same definition under section 2
(e) of the MLAMD Act even after amendments to the
Constitution and the Municipalities Act.
74. Thus, there does not appear to be casus omissus as
sought to be contended. As such, it is difficult to go along the
line of arguments advanced on behalf of respondents that
MLAMD Act would take within its fold a nagar panchayat as a
local authority.
43 WP-1942.15.doc
75. The State Legislature appears to confine application of
disqualification provisions of MLAMD Act to the four categories
of local authorities specified in section 2 (e) of the MLAMD
Act. The intention is reflected in the provisions under section
3, particularly section 3 (1) (b) of the MLAMD Act. Such an
intention becomes even more prominent under provisions of
section 7 of the MLAMD Act.
76.
Provisions of section 3 of the MLAMD enactment,
particularly section 3 (1) (b) would play a pivotal role. For
said purpose it would be pertinent to reproduce section 3 of
the MLAMD Act, as under -
" 3. (1) Subject to the provisions of section 5, a councillor or a
member belonging to any political party or aghadi or front shall be
disqualified for being a councillor or a member -
(a) ....
(b) If he votes or abstains from voting in any meeting of a
Municipal Corporation, Municipal Council, zilla Parishad or, as
the case may be, Panchayat Samiti, contrary to any direction
issued by the political party or aghadi or front to which he belongs
or by any person or authority authorised by any of them in this
behalf, without obtaining, in either case, the prior permission of
such political party or aghadi or front, person or authority and such
44 WP-1942.15.doc
voting or abstention has not been condoned by such political party
or aghadi or front, person or authority within fifteen days from the
date of such voting or abstention :
Provided that, such voting or abstention without prior permission
from such party or aghadi or front, at election of any office,
authority or committee under any relevant municipal law or the
Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961
shall not be condoned under this clause -
Explanation - For the purposes of this section
........ "
77. It would be necessary to take into account that section
3 (1) (b) of the MLAMD Act, speaks of disqualification
specifically of councillor who votes or abstains from voting in
the meetings of municipal corporations, municipal councils,
zilla parishads or panchayat samitis contrary to the direction
issued by the political party to which he may belong to, or by
a person authorized in this respect, without obtaining prior
permission of the political party or person or authority and
such voting or abstention has not been condoned. The
provision does not refer to meetings of 'nagar panchayats'.
78. Thus, section 3 (1) (b) of the MLAMD Act, having regard
45 WP-1942.15.doc
to specific "local authorities" referred to therein and in
absence of amendment to the same, after the amendment to
the Constitution of India and the Municipalities Act, would not
be able to take within its fold and cover "Nagar Panchayat".
79. Aforesaid gets reinforcement under the provisions of
section 7 of the MLAMD Act. The provision gives a clear
indication that the State Legislature does not intend to apply
provisions of the MLAMD Act to disqualify a councillor of nagar
panchayat and has not provided for disqualification
proceedings against councillor of nagar panchayat under the
MLAMD Act. The same quite eloquently surfaces from the text
of section 7 of the MLAMD Act, which reads thus -
" 7. If any question arises as to whether, -
(a) a councillor of a Municipal Corporation; or
(b) a councillor of a Municipal Council; or
(c) a councillor of a Zilla Parishad; or
(d) a member of a Panchayat Samiti,
has become subject to disqualification under this Act, the question
shall be referred -
(i) in the case of a councillor or a Municipal Corporation, to
the Commissioner, and
(ii) in the case of any other councillor or member, to the
Collector; and the decision of the Commissioner, or as the case may
be, Collector, shall be final. "
46 WP-1942.15.doc
80. Moreover, definition of term 'councillor' as appearing
under section 2 (d) of the MLAMD Act, strengthens the
position that MLAMD Act would not apply to councillors of
nagar panchayat as the definition reads as under;
" 2 (d) 'councillor' means a councillor of a Municipal
Corporation, or a Municipal Council, or a Zilla Parishad; "
81. Arguments have also been advanced relying on section
10 of the MLAMD Act. It would be worthwhile to reproduce the
same, which reads as under -
" 10. (1) The provisions of this Act and rules shall have effect
notwithstanding anything inconsistent therewith contained in any
other law for the time being in force.
(2) Subject to the provisions of sub-section (1), the provisions of
this Act shall be in addition to and shall not, save as expressly
provided hereinbefore, be in derogation of the provisions of any law
relating to Municipal Corporation, Municipal Council or other local
authority concerned.
(3) Notwithstanding anything contained in the forgoing
provisions of this section nothing in this Act shall apply when a
Government servant is nominated as a Councillor of a Municipal
Council for a municipal area specified in Part II or Part III of
Schedule I to the Maharashtra Municipalities Act, 1965, or to any
person who holds the office as a member of a panchayat samiti by
virtue of his being a Government servant and appointed as
Administrator of a co-operative society "
47 WP-1942.15.doc
82. On behalf of the respondents it is contended that
section 10 (2) of the MLAMD Act stipulates that provisions of
this Act are in addition to and not in derogation of provisions
of any other law relating to municipal council or other local
authority. However, it would have to be taken into account
that provisions of MLAMD Act do not assist the respondents
nor do provisions of other law relating to municipal council or
other local authority appear to impact or for that matter
influence the emerging legal position in this matter, with such
a strength to sway the same in favour of the respondents.
Section 10 (2) of the MLAMD Act would not lend any
assistance in this matter to the respondents. It may not be
ignored that section 10 (1) of the MLAMD Act gives its
provisions dominance over any inconsistency.
83. Contention that nagar panchayat practically is a
municipal council since it is conferred with all the powers of a
municipal council under the Municipalities Act as well as it
has to perform the same duties as discharged by a municipal
council, would pale into insignificance in the face of emerging
legal position as aforesaid since the legislative intent does not
appear to include a nagar panchayat as a local authority
48 WP-1942.15.doc
under MLAMD Act in spite of its coming into being under the
Constitution and amendments pursuant thereto into the
Municipalities Act.
84. Sections 2 (d), 2 (e), 3 and 7 of the MLAMD Act,
reproduced hereinbefore would evince that the disqualification
proceedings against councillors of nagar panchayat under the
MLAMD Act may not be able to be taken up by respondent
No.1.
85. There is no dispute, rather position is indipustable that
the meeting held on 30th April, 2013 was not a meeting of any
of the local authorities referred to in section 3 (1) (b) of the of
the MLAMD Act. Having regard to the observations as have
been referred to in paragraph No.47, the provision since being
visiting the person concerned with penal consequences, in the
absence of nagar panchayat being referred to and/or
concerned in said provision, in the present matter, it does not
appear to be a case that councillor of nagar panchayat or
Nagar Panchayat can be considered to have been covered by
the penal provision under section 3 of the MLAMD Act.
86. Even if for the sake of arguments it is to be assumed
that the term "local authority" under MLAMD Act may
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contemplate Nagar Panchayat, yet, for conspicuous absence
of its specific reference in the relevant provision - section 3 as
in the case of other local authorities under the same, it would
be difficult to consider the argument that the petitioners
would stand disqualified to be councillors of Mahur Nagar
Panchayat. Provision of the MLAMD Act prescribing penal
consequences will have to be strictly construed. A councillor of
nagar panchayat does not appear to be covered under section
3 (1) (b) of the MLAMD Act, and as such, petitioners would
not incur disqualification under the MLAMD Act.
87. Having regard to aforesaid, the arguments urging to put
up a construction to prevent evasion or abuse, referring to
Maxwell on interpretation of statutes do not appear to be of
any assistance to the respondents.
88. Observations quoted from the judgment of full bench as
appearing under paragraph no. 39 being relied on by
respondents may not be of any avail in the face of emerging
legal position as is appearing under the facts and
circumstances of the case and the prevailing provisions of law.
89. Contention on behalf of the respondents that a point
with regard to applicability of MLAMD Act would not be able to
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be taken up in the present writ petitions, having regard to the
factual and legal position, is underwhelming and reliance
placed on the case of Kedar S. Deshpande (supra) would not
be proper, for, observations therein appear to occur in a
different context. In Kedar Deshpande's case (supra), the
court was dealing with submission, for the first time, that the
additional collector had not been empowered/delegated
powers to deal with disqualification petitions under the
MLAMD Act. The observations, in turn, had referred to a
decision of the supreme court. Kedar Deshpande's case as
well as the case referred to therein, had been dealing with
entirely different factual and legal situations and the
observations therein would seldom be able to contain and
govern the present context. In the citations, the high court
and supreme court had not been concerned with applicability
of the enactment. In the present matter the question of
applicability of the enactment has been involved rather than
jurisdiction as has been dealt with in the citations. The
contention on behalf of respondents about the question being
raised for the first time and could not be allowed before this
court is a technical one, as the question of applicability of
enactment in present case strikes at the very foundation and
51 WP-1942.15.doc
uproots the proceedings. The contention as such, is not
tenable.
90. Also, the findings recorded by respondent No.1 do not
appear to take stock of the factual situation properly. There is
no reference to any specific rule, regulation or provision of
constitution of the Nationalist Congress Party being
considered showing that under its rules, regulations or
constitution, it would be the District President of NCP (Rural),
who would be authorized officer or being empowered or able
to act as a political party or would be a leader as envisaged
under the MLAMD Act and Rules. The communication dated
27th January, 2014 is a subsequent communication and by
itself would not be able to justify direction / whip in the
absence of reference to rules, regulations or provision of the
constitution. For want of reflection of proper application of
mind to the facts, circumstances and record, the impugned
order does not appear to be sound enough to be sustainable
in fact and in law.
91. The provisions of MLAMD Act in general, and provisions
of section 3 and proceedings for disqualification under section
7 of the MLAMD Act in particular, do not cover councillor of
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nagar panchayat. The proceeding for disqualification of
petitioners in the circumstances turns out to be an otiose
process and is without any efficacy.
92. Conspectus thus leads to that the impugned order is
rendered untenable and the same deserves to be quashed.
93. As such, following order.
ig ORDER
The writ petitions are allowed. Impugned order dated
31st January, 2015 passed by District Collector, Nanded under
provisions of section 3 (1) (b) of the MLAMD Act, is quashed
and set aside. Rule is made absolute in aforesaid terms. Civil
application No.10993 of 2015 stands disposed of.
SUNIL P. DESHMUKH,
JUDGE
