Rajendra Mahadu Patil vs State Of Maharashtra And Others
2016 Latest Caselaw 6288 Bom

                                            1                      WP 4925 of 2015

         IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                               
                     BENCH AT AURANGABAD




                                                       
                              Writ Petition No.4925 of 2015


         Rajendra s/o Mahadu Patil.                         ..    Petitioner.




                                                      
                 Versus

         The State of Maharashtra
         And Others.                                       .. Respondents.




                                       
                              ig          --------

         Shri. S.B. Talekar and Shri. U.R. Awate, Advocates, for
         petitioner.
                            
         Shri. S.R. Yadav, Assistant Government Pleader, for
         respondent Nos.1 to 4.

         Shri. N.B. Khandare, Advocate, for respondent No.5.
      


         Shri. M.S. Deshmukh, Advocate, for respondent No.6.
   



                                         ----------

                                     CORAM:           T.V. NALAWADE, J.





                                     DATE       :     24 OCTOBER 2016
         ORDER:

1) The proceeding is filed to challenge the order

made on 25-4-2015 by the Returning Officer (Sub

Divisional Officer, Pachora) by which the objection filed to

the nomination of respondent No.6 for the post of

President of the Bhadgaon Municipal Council is rejected.

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         2)               Ordinarily, in view of the provision of section




                                                                               

51(4) of the Maharashtra Municipal Councils, Nagar

Panchayats and Industrial Townships Act, 1965

(hereinafter referred to as "the Act") appeal needs to be

filed before the authority created under the Act. Learned

counsel for the petitioner submits that in view of the

exceptional circumstance like one petition, being Writ

Petition No.4878/2015, is already filed with regard to the

previous disqualification and as that circumstance needs

to be used in the subsequent proceeding, present Writ

Petition No.4925/2015 needs to be entertained even when

appeal remedy is available. In view of these peculiar

circumstances, this Court is deciding this writ petition

also on merits. Other side counsels are heard.

3) It is the case of the petitioner that respondent

No.6 was disqualified as councillor of Municipal Council

Bhadgaon by order dated 26-7-2013 made by the learned

Collector and this order was confirmed in appeal by the

State Government on 24-4-2015. It is the case of the

petitioner that the ground of illegal and unauthorized

construction within the limits of the said local body was

3 WP 4925 of 2015

proved against respondent No.6 in the past and as the

said construction was not yet removed, respondent No.6

was not entitled to contest the election for the term 2015-

2020. It is the case of the petitioner that the previous term

of 5 years was up to 14-3-2015 and it was not possible for

the respondent No.6 to contest the election which took

place on 19-1-2015. Here only it needs to be observed that

there was stay to the order of disqualification made by the

Collector and the appeal before the Hon'ble Minister came

to be decided subsequently i.e. on 24-4-2015. Respondent

No.7 had also filed nomination for the post of the

President and so he is made party to the present petition.

The petitioner was also one of the candidates.

4) Notification in the official gazette about the

elected Councillors was published on 20-1-2015. Copy of

notice of the first meeting of the general body for the

period 2015-2020 was issued on 23-4-2015 and the

meeting was called on 30-4-2015. In this meeting there

was programme of election to the post of the President

and subsequently the election to the post of Vice President

was also to be held.

                                             4                 WP 4925 of 2015

         5)               The period for filing nominations for the post of




                                                                          

the President was from 24-4-2015 to 25-4-2015. Scrutiny

was to be done on 25-4-2015 after 2.00 p.m. and after 2

p.m. list of eligible candidates was to be published on 25-

4-2015. In view of the provisions of the Act there was

remedy of appeal against the order of the Returning

Officer. The date 28-4-2015 was fixed for publishing the

list of eligible candidates and time to withdraw the

candidature was upto 29-4-2015. Election was to take

place on 30-4-2015 at 11.05 a.m.

6) The present petitioner took objection before the

Returning Officer which was of the aforesaid nature. It is

already observed that the appeal filed before the Hon'ble

Minister in the previous disqualification proceeding was

dismissed on 24-4-2015 and till that date there was stay to

the order of disqualification. In any case, the previous

term was to come to an end on 29-4-2015 and so the

defence was taken by the respondent No.6 that he was

entitled to contest the election to the post of Councillor

for the next term and he was also entitled to contest the

election to the post of the President in next term. The

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Returning Officer held that the disqualification was for the

previous term 2010-2015 and said disqualification cannot

operate to the new term, 2015-2020.

7) In view of nature of the grievance, relevant

provisions of the Act need to be seen. For the present

purpose relevant provisions are Sections 40, 41, 41-A and

44(1)(e), (3) & (4) of the Act. In view of the rival

contentions and the nature of dispute it is necessary to

consider the provision of section 44(1)(e), (3) & (4) and

that portion of section 44 runs as under :-

"44. Disqualification of Councillor during his

term of office.-- (1) A Councillor shall be disqualified to hold office as such, if at any time during his term of office, he --

(a) . . . .

(b) . . . .

(c) . . . .

(d) . . . .

(e) has constructed or constructs by himself, his spouse or his dependent, any illegal or unauthorised structure violating the provisions of this Act, or the Maharashtra Regional and Town Planning Act, 1966 (Mah. XXXVII of 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

6 WP 4925 of 2015

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; and he shall be disabled subject to the provisions of sub-section (3) from continuing to be a Councillor and his office shall become vacant :

(2) ....

(3) In every case the authority to decide whether a vacancy has arisen shall be the Collector. The

Collector may give his decision on receipt of the report of the Chief Officer under sub-section (2), or on his own motion or on an application made to him

by a voter and such decision shall be communicated to the Councillor concerned, the Chief Officer and the applicant, if any. Until the Collector decides that a

vacancy has arisen and such decision is communicated as provided above, the Councillor shall not be deemed to have ceased to hold office.

(4) 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:

Provided 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.

Explanation.-- If any elected or nominated

Councillor were subject to any disqualification specified in Section 16, at the time of his election, or nomination and continues to be so disqualified, the disqualification shall, for the purposes of this section, be deemed to have been incurred during the term for which he is elected or nominated."

7 WP 4925 of 2015

Provisions of Sections 40, 41 and 41-A of the Act run as

under :

"40. Duration of Council.-- (1) Every Council, unless sooner dissolved, shall continue for a period of five years from the date appointed for its first

meeting and no longer.

(2) A Council constituted upon the dissolution of a Council before the expiration of its duration shall continue only for the remainder of the period for

which the dissolved Council would have continued under sub-section (1), had it not been so dissolved."

"41. Term of office of Councillors.-- (1) The term

of office of the Councillors shall be co-terminus with the duration of the Council.

(2) A Councillor may resign his office unconditionally at any time by notice in writing in

his hand addressed to the Collector and delivered in person and signed before the Collector and then

only such resignation shall be effective."

"41-A. Election to constitute Council.-- An election to constitute a Council shall be completed,--

(a) before the expiry of its duration specified in sub-section (1) of Section 40; or

(b) before the expiration of a period of six months from the date of its dissolution:

Provided that where the remainder of the period for which the dissolved Council would have continued is less than six months, it shall not be necessary to hold any election under this section for constituting the Council for such period."

8 WP 4925 of 2015

The aforesaid provisions show that the Collector has

the power to declare that disqualification and vacancy

has arisen under the aforesaid ground. However, the

disqualification will be limited to the period mentioned in

section 44 i.e. the same term and it cannot be extended

for the period after the expiry of the said term.

8)

The aforesaid provisions need to be considered

together. They show that the term of the office is co-

terminus with the duration of the Council. The term is 5

years and it commenced from the date appointed for its

first meeting. So, in the previous mater, previous term

expired on completion of 5 years starting from 30-3-2010

The first meeting of the next term was scheduled on 30-4-

2015. There is nothing in the aforesaid provisions to show

that the person who is disqualified in the previous

proceeding for the previous term, can be prevented from

being elected for the new term. Such further bar can be

seen in section 55-B of the Act but not in the aforesaid

provisions. When there is no such bar created, it was not

possible to reject the nomination of respondent No.6 filed

for the post of the President. Whether due to continuation

9 WP 4925 of 2015

of previous illegal and unauthorized construction he can

be disqualified for further period and whether separate

action can be taken under section 44 or 55-A, 55-B of the

Act is a different matter. Further it needs to be kept in

mind that in view of the provision of section 44(3) of the

Act, till the Collector decides that vacancy has arisen,

respondent No.6 was entitled to hold the office and

exercise all the rights including the right to contest the

election to the post of the President. Thus, there was no

force in the contention made against the respondent No.6

that he was not entitled to contest the election to the post

of Councillor and also to the post of the President. In view

of these circumstance, this Court holds that it is not

possible to interfere in the order made by the returning

officer of acceptance of the nomination form of

respondent No.6. In the result, the petition stands

dismissed.

Sd/-

(T.V. NALAWADE, J. )

rsl