Bombay High Court
Prashant Dattatray Pawar vs Honble Minister For State For ... on 24 October, 2016
Bench: T.V. Nalawade
1 WP 11762 of 2015
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Writ Petition No. 11762 of 2015
* Prashant s/o Dattatray Pawar,
Age 37 years,
Occupation : Business and
Agriculture,
R/o Shiv Colony, Bhadgaon,
Taluka Bhadgaon, Dist. Jalgaon. .. Petitioner.
Versus
1) Hon'ble Minister for State for
Urban Development Department,
Maharashtra State,
Mantralaya, Mumbai - 32.
2) Collector, Jalgaon,
District Jalgaon.
3) Returning Officer for election
to the post of President,
Municipal Council, Bhadgaon,
for 2015 @ Sub Divisional Officer,
Sub Division, Pachora,
Taluka Pachora, Dist. Jalgaon.
4) Municipal Council, Bhadgaon,
Taluka Bhadgaon,
District Jalgaon,
Through its Chief Officer.
5) Rajendra Mahadu Patil,
Age 45 years,
Occupation: Agriculture,
R/o Near Swami Samarth Petrol
Pump, Pachora Road, Bhadgaon,
Taluka Bhadgaon, Dist. Jalgaon. .. Respondents.
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Shri. Mahesh S. Deshmukh, Advocate, for petitioner.
Shri. S.R. Yadav, Assistant Government Pleader, for
respondent Nos.1 to 3.
Shri. D.B. Thoke, Advocate, for respondent No.4.
Shri. S.B. Talekar, Advocate, for respondent No.5.
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CORAM: T.V. NALAWADE, J.
DATE : 24 OCTOBER 2016
JUDGMENT:
1) Rule. Rule made returnable forthwith. Heard
both sides by consent for final disposal.
2) The petition is filed against the order of the
Hon'ble Minister, Urban Development Department in a
dispute filed by present respondent Rajendra Patil under
the provisions of section 51(6) read with section 16(1)(a1)
read with section 55-A of the Maharashtra Municipal
Councils, Nagar Panchayats and Industrial Townships Act,
1965 (hereinafter referred to as "the Act"). In the
proceeding declaration was sought that respondent No.1,
Pawar, present petitioner, was disqualified on the date of
election held for the post of the President of Bhadgaon
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Municipal Council and after making such declaration to
make further declaration that Rajendra Patil was elected
in the said election as he had also filed nomination for the
said election. Notice was issued in respect of this
proceeding for hearing by the Government in August
2015. Initially present petitioner had prayed for transfer
of the matter from the Hon'ble Minister to other Hon'ble
Minister but he could not get such relief. The Hon'ble
Minister allowed the proceeding and declared that on 30-
4-2015 present petitioner, Pawar, was not eligible to
contest the election to the post of the President as he was
already disqualified is given. Further declaration is made
that in view of the declaration made in respect of previous
term that he was disqualified, he stood disqualified for
subsequent term also which was for the period 2015-2020
also.
3) The submissions made and the record show
that both Rajendra Patil and Pawar got elected to
Municipal Council Bhadgaon for the term 2015-2020. The
election to the post of President was scheduled on 30-4-
2015. Both of them had filed nominations for the said
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post. Rajendra Patil took objection to the nomination of
present petitioner Pawar but this objection was rejected.
Pawar was declared as elected when lots were drawn.
4) The Hon'ble Minister has held that due to order
of disqualification made in the previous proceeding
against Pawar he was not entitled to contest the election
of the Municipal Council and then the election to the post
of President. The Hon'ble Minister has held that the vote
of Pawar could not have been counted in the election to
the post of the President and in view of these
circumstances, Patil needs to be declared as elected for
the post of the President.
5) When the proceeding of aforesaid nature was
filed, Hon'ble Minister went on to give one more
declaration. It is declared that Pawar is not entitled to
continue on the post of Councillor in view of the
disqualification which he had incurred in the previous
term. The proceeding before the Hon'ble Minister was
filed under section 51(6) of the Act and this provision is as
under:-
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"51. Election of President:
(6) Any dispute regarding election of the
President shall be referred to the State Government
whose decision in that behalf shall be final.
6) In view of the aforesaid provision and as the
proceeding was filed to challenge only the election of the
President, it was not possible to treat this proceeding as
the one under section 55-A of the Act. Further, the
provision of section 16(1)(a1) of the Act can be used only
when he is disqualified under law made for the purpose of
elections to the Legislature of the State. This provision
cannot be used in proceeding filed under the provision of
section 51(6) of the Act. Further even order under section
55-A of the Act could not have been made by the Hon'ble
Minister in this proceeding. There was no allegation
against present petitioner Pawar that he had made illegal
or unauthorized construction while he was holding the
post of President or Vice President. Provisions of Section
55-A and 55-B of the Act can be used only when the
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Councillor was holding the post of President or Vice
President and misconduct was of that tenure. Further,
there is procedure laid down in the Act for passing order
under section 55-A or Section 55-B of the Act and
separate show cause notice is required to be given when
action is intended under these sections. The allegations
which can be called as charge on the basis of which order
can be made need to be informed to the person like
present petitioner. Reasonable opportunity needs to be
given in that proceeding to defend the matter and only
after that order under section 55-A or 55-B of the Act can
be made.
7) Today, this Court decided Writ Petition
No.4878/2015 which was in respect of disqualification
incurred by present petitioner Pawar due to his
misconduct of previous tenure, 2010-2015. There were
allegations against him that he had made illegal or
unauthorized construction on his property when he was
Councillor. Proceeding was conducted against him under
section 44(1)(e) of the Act. This Court has held that the
ground is proved against him and so he was disqualified to
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continue as Councillor for the remaining period of the said
term. Unfortunately, due to the pendency of the
proceeding before the Hon'ble Minister and stay given,
the petitioner enjoyed the entire tenure as a Councillor.
But, due to this circumstance it cannot be said that the
previous misconduct when he was the Councillor can be
considered for the subsequent term. In any case, in a
proceeding of the present nature it was not possible to
give the declaration of aforesaid nature viz. he cannot
continue as Councillor for the remaining period of present
term. It appears that the Hon'ble Minister had
misconception that this Court had directed him to review
the decision given by him in the previous appeal which
was under challenge in Writ petition No.4878/2015
mentioned above. No such direction was given by this
Court. Thus, only the appeal filed against the election of
Pawar to the post of the President was under challenge in
the proceeding which was pending before the Hon'ble
Minister but the orders of aforesaid nature came to be
made.
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8) This Court has decided today another Writ
Petition bearing No.4925/2015 which was filed by
Rajendra Patil against present petitioner to challenge
acceptance of nomination filed for the President's post.
Said proceeding is also dismissed by this Court by holding
that the order of disqualification made in respect of the
previous term under section 44 of the Act cannot be used
against Shri. Pawar. The position of law is discussed in
that proceeding. This Court has held that the
disqualification cannot continue after expiry of the term
when the order is made under section 44(1)(e) of the Act.
Thus, the Hon'ble Minister has committed serious error in
making order of aforesaid nature against the present
petitioner. In the said proceeding also this Court has made
it clear that the point whether the circumstance of the
construction made by Pawar which is said to be illegal or
unauthorized can be used for his disqualification for
subsequent term needs to be dealt with in a separate
proceeding which can be started under different
provisions of the Act. Unless and until the order of
disqualification is made in a proceeding which may be
filed, the petitioner will be entitled to continue as
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Councillor.
9) In the result, the petition is allowed. Parts 3
and 4 of the operative order of the decision given by the
Hon'ble Minister are hereby quashed and set aside. Rule
is made absolute in those terms.
Sd/-
ig (T.V. NALAWADE, J. )
rsl
