Sau. Pragati W/O Ajay Patil vs Nagpur Municipal Corporation ...
2021 Latest Caselaw 3147 Bom

                                                  (1)                                                                 CAW 310.2021

                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               NAGPUR BENCH : NAGPUR

                            CIVIL APPLICATION (CAW) NO.310 OF 2021
                                               IN
                                 WRIT PETITION NO.6236 OF 2019
                                                  Sau. Pragati Patil
                                                         Vs.
                                       The Municipal Commissioner and others.
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      Office Notes, Office Memoranda of Coram,                                                           Court's or Judge's orders
      appearances, Court's orders of directions
      and Registrar's orders
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                   Shri M. G. Bhangde, Senior Advocate h/f Shri B. N. Mohata,
                   Advocate for petitioner.
                   Shri J. B. Kasat Advocate for respondent no.1.
                   Shri A. S. Kinkhede, Advocate for respondent no.2.


                                                                  CORAM : SUNIL B. SHUKRE AND
                                                                          AVINASH G. GHAROTE, JJ.

DATED : 17/02/2021

1. By an order dated 4/1/2021, three questions of law

were framed which according to us, were required to be referred

to a larger Bench, and the Registry was directed to place the

matter before the Hon'ble the Chief Justice, for considering the

same for constitution of a larger Bench. The Hon'ble the Chief

Justice has been pleased to constitute a Full Bench, which is to

hear the reference on 18/2/20121.

2. In the meantime, Civil Application No.310/2021 has

been filed by the petitioner in Writ Petition No.6236/2019,

contending, that in the order dated 4/1/2021, this Court, had

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referred to the judgment in the case of Umesh Pawale (W.P.

No.9947/2018, decided by the Aurangabad Bench on

17/10/2019) and had disagreed with the view taken therein, in

light of which, it was necessary, to have referred the correctness of

the decision in Umesh Pawale, also to the Full Bench. Civil

Application No.310/2021 therefore is filed to refer the additional

question of law as framed therein to the Full Bench, as

constituted. The additional question, which is referred in C.A.

No.309/2021 is as under :-

"Whether the enunciation of law in the case of Umesh Pawale making distinction between pre-existing disqualification and the disqualification incurred during the term of the Councilor and that there are separate remedies for these two contingency viz. "Election Petition" u/s 16 of Maharashtra Municipal Corporation Act, 1949 in the former case and reference u/s 12 in the later case, is correct."

3. Mr. Bhangde, learned Senior Counsel for the

petitioner submits that in view of what has been stated in the

order dated 4/1/2021, the above additional question of law arises

for determination, which may also be framed by this Court and

referred to the Full Bench for a decision. He relies upon State of

Punjab Vs. Salil Sabhlok, (2013) 5 SCC 1, which in paras 34 to 37,

considers a situation where the learned Full Bench had decided

(3) CAW 310.2021

issues not referred to it by the Division Bench and had held such

decision to be without jurisdiction. However, in para 145 of the

same judgment, it has been held that if a subsidiary question

logically and unavoidably arises, the Larger Bench cannot be

dogmatic and refuse to answer it and a common sense approach

must be taken on such occasions.

4. Mr. Kinkhede, learned Counsel for the respondent

no.2, does not dispute that the Additional question as framed

indeed arises for consideration, he however, submits that the Full

Bench can be requested to frame the same as an ancillary

question, and in case a request is so made, he will agree to the

same. It is contended by him that this Court, now after

constitution of the Larger Bench, cannot do so.

5. Without going into the further niceties of the rival

contentions, we also feel that in light of what we have said in para

15 of the order of reference, the additional question as quoted,

would arise for consideration. However, now that the Full Bench

has been constituted, and as both the learned Counsels have

conceded that the additional question is one, which is ancillary to

the questions already framed, propriety would demand that this

(4) CAW 310.2021

request be made before the Full Bench, which can always re-

frame the questions and also frame any ancillary questions,

consider and decide the same.

6. The Civil Application is accordingly disposed off, in

light of what has been said above.

                               JUDGE                            JUDGE




               Sarkate