Bombay High Court
Sau. Pragati W/O Ajay Patil vs Nagpur Municipal Corporation ... on 4 January, 2021
Bench: S.B. Shukre, Avinash G. Gharote
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.5075/2019
Mrs. Tilottama W/o Sanjay Kinkhede ...Petitioner
Aged 50 years, Occupation : Business,
(Original
R/o 2nd Floor, Kinkhede's Vijay Apartments, Complainant/
Applicant)
Behind Labour Court, Opposite Chitnavis Center,
Temple Road, Civil Lines,
Nagpur - 440001.
...Versus...
1. The Municipal Commissioner, Nagpur, ...Respondents
Nagpur Municipal Corporation,
Civil Lines, Nagpur-440001.
2. Mrs. Pragati W/o Ajay Patil, (Original
Aged about 52 years, Occupation-Business, Respondent/
Non Applicant)
R/o Flat No.A- ¾ , Forest Housing Society,
Behind Center Point School,
Nagpur- 440013.
3. State of Maharashtra, Urban Development
Department, Mantralaya, Mumbai - 400032.
(Amended as per order dt. 3/9/19)
WITH
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2
WRIT PETITION NO.6236/2019
Sau. Pragati w/o Ajay Patil ...Petitioner
Aged 52 Years, Occ : Business,
[Original
R/o 3/4 Forest Housing Colony, Respondent]
Seminary Hills, Nagpur, District Nagpur.
..Versus...
1. Nagpur Municipal Corporation, ...Respondents
Through its Commissioner, Nagpur.
2. Sau. Tilottama w/o Sanjay Kinkhede,
Aged 48 Years, Occ : Business,
R/o 288/5, C-2, 2nd floor, Vijay Apartment, [Original
Applicant]
Behind Labour Court, Civil Lines, Nagpur,
District Nagpur.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ------
Office Notes, Office Memoranda of Coram, Court's or Judge's orders
Appearances, Court's orders or directions
and Registrar's orders
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ------- -
Mr. Amit S. Kinkhede, Counsel for petitioner in W.P. No.5075/2019
Mr. J.B. Kasat, Counsel for respondent no.1 in W.P. No.5075/2019
Mr. S.P. Dharmadhikari, Senior Counsel with Mr. Bhushan Mohata, Counsel for
respondent no.2 in W.P. No.5075/2019
Mr. A.R. Chutke, AGP for respondent no.3 in W.P. No.5075/2019
Mr. S.P. Dharmadhikari, Senior Counsel with Mr. Bhushan Mohata, Counsel for
petitioner in W.P. No.6236/2019
Mr. J.B. Kasat, Counsel for respondent no.1 in W.P. No.6236/2019
Mr. Amit S. Kinkhede, Counsel for respondent no.2 in W.P. No.6236/2019
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3
CORAM : SUNIL B. SHUKRE AND
AVINASH G. GHAROTE, JJ.
Order reserved on : 20/10/2020
Order pronounced on : 04/01/2021
O R D E R : (PER : AVINASH G. GHAROTE, J.)
1. In the order dated 03/09/2019, passed by this Court,
the controversy in the present issue, has been summarized in the
following manner:-
"2. The petitioner has lost the election as a Councillor
from Ward No.14-D and the respondent no.2 was declared as
elected Councillor from the said ward. The petitioner filed
her representation dated 3rd May, 2017 under Section 10(1)
(d) read with Section 12 of the Maharashtra Municipal
Corporation Act (herein referred as 'the Act') to the
Municipal Commissioner, Nagpur alleging that the
respondent no.2 has incurred disqualification as
contemplated by Section 10(1)(d) of the Act having made
unauthorised construction. The Commissioner has passed an
order on 2nd July, 2019 prima-facie holding that there exists
some illegal/unauthorised construction in the properties of
the respondent no.2. However, he has referred the objection
to the General Body of the Nagpur Municipal Corporation for
appropriate decision to refer the matter to the Civil Judge
Senior Division as per Section 12 of the Act and therefore to
this extent the order of the Commissioner is challenged.
3. According to the petitioner, once the Commissioner
records the findings that prima-facie there exists some illegal
/unauthorised construction in the properties of the
respondent no.2, he is under obligation under Section 12 of
the Act to refer the matter to a Judge and it is not necessary
for him to forward the papers to the Corporation for making
a request to him to refer this question to a Judge.
4. During the course of last hearing, we asked to the
learned counsel as to whether he was to challenge the
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provision of Section 12(1) of the Act is required the matter
to be referred by the Commissioner to the Corporation for
making a request. He has filed the pursis stating that the
petitioner does not want to challenge the provision of the Act
but the provision can be said by making a purposive
construction of it.
5. Section 12(1) of the Act is reproduced below:-
"12. Questions as to disqualification to be determined
by the Judge.
(1) If any doubt or dispute arises whether a
councillor has ceased to hold office as such under
Section 11, such councillor or any other councillor
may, and at the request of the Corporation, the
Commissioner, shall refer the question to the
Judge."
6. In view of the aforesaid provision, if any doubt or
dispute arises as to whether councillor has ceased to hold the
office as such under Section 11 of the said Act, it has to be
referred to the Judge for its decision and pass an appropriate
order under Sub Section (2) of Section 12. The petitioner is
neither a councillor against whom the process for
disqualification is proposed to be taken nor can she be
termed as member as she has already lost the election. The
petitioner has made a representation to the Commissioner
which has been considered and prima-facie finding is
recorded in the order impugned that there exists some illegal
or unauthorised construction. In such event, the question is
whether the Commissioner has to directly to refer the
question to the Judge or is it necessary for him to refer the
matter for Corporation for making such a request in terms of
Sub Section 1 Section 12 of the Maharashtra Municipal
Corporation Act. Our invitation is invited to the decision of
the Division Bench of this Court Mallesh Shivan Shetty Vs.
Commissioner Kalyan Dombivali Municipal Corporation &
others reported in 2016(3) Mah. Law Journal 901 and it is
urged that judgment is requires reconsideration."
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2. The matter was heard at some length on 20/10/2020,
by physical hearing. Mr. Amit Kinkhede, learned Counsel for the
petitioner contends that the judgment of this Court in Mallesh
Shivan Shetty (supra) does not lay down the correct law. He
requests this Court to take a different view and refer the matter to a
larger Bench as according to him the issue needs a conclusive
determination. It is on this urging that we agreed to consider the
matter today for a limited issue as to whether Mallesh Shetty
(supra) has been correctly decided or not depending on which
answer, the further course to follow will be decided.
3. Mr. S.P. Dharmadhikari, learned Senior Counsel for the
respondent no.2 assisted by Mr. Bhushan Mohta Advocate, Mr. J.B.
Kasat, learned Counsel for respondent no.1 and Mr. A.R. Chutke,
learned Assistant Government Pleader for the respondent no.3/State
are agreeable to this. We therefore have heard the matter in light of
the above.
4. Mr. Amit Kinkhede, learned Counsel for the petitioner,
contends that a learned Single Judge of this Court in Edwin Francis
Britto Vs. Municipal Corporation of Greater Mumbai & Ors. (2006)
SCC OnLine Bom. 791, had an occasion to consider the provisions of
Section 16(1D) of the Bombay Municipal Corporation Act, 1888
(BMC Act, hereinafter), which he claims to be in pari materia to
Section 10(1D) of the Maharashtra Municipal Corporations Act
1949 (MMC Act hereinafter), as amended up to date, wherein it has
been held that the disqualification under the provisions of
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Section 16(1D) of the BMC Act will operate, if the Councillor had
erected unauthorised structure even before his election as a
Councillor. In enacting the provisions of Section 16 (1D) of the BMC
Act, the intention of the legislature was to enable the Corporation to
effectively tackle the growing menace of illegal construction. One of
the mandatory duties of the Corporations as local body and as the
planning authority is to prevent erection of unauthorised structures
and to demolish unauthorised structures. If a person who himself
has erected an unauthorised structure is elected as a Councillor,
there is likelihood of there being a conflict between the duty of such
person as a Councillor and his interest in retaining the unauthorised
structure. Therefore, the legislature in order to prevent such a
person being elected as a Councillor had used the words "has
constructed" in section 16(1D) of the BMC Act.
5. Mr. Amit Kinkhede, learned Counsel for the petitioner
further submits that though there is no challenge raised to the
constitutional validity of the provisions, however this Court will
have to read down the provisions of Section 10 (1D) of the MMC
Act, so as to include any past illegal construction/s made by a
Councillor, so that the provision can be given its full meaning. If that
is done, a person who has erected any unauthorised structure at any
time would be disqualified to be a Councillor. He submits that
Edwin Britto (supra) has been affirmed by a Division Bench of this
Court in Javed s/o Sheikh Mustaque Patel / State of Maharashtra
and ors. 2009 SCC online Bom. 388.
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6. Mr. Amit Kinkhede, learned Counsel for the petitioner
further invites our attention to the judgment of this Court in
Abhiram Singh / C.D. Commachen (Dead) By Legal Representatives
and ors. (2017) 2 SCC 629 paras 39, 40, 79 and 81 and Janabai/
Additional Commissioner and others (2018) 18 SCC 196 paras 16 to
18, 26, 27 and 30 on the principles of interpretation and submits
that these should be applied for reading down the provisions of
Section 10 (1D) of the MMC Act.
7. Mr. S.P. Dharmadhikari, learned Senior Counsel for the
respondent no. 2 contends that the provisions contained in Section
10(1D) of the MMC Act, have been modelled on the provisions of
Articles 191 and 192 of the Constitution in so far as they relate to
the elections to the legislative Assembly or Legislative Council of a
State and Articles 243-V as they apply to elections to Municipalities.
8. Mr. S.P. Dharmadhakari, learned Senior Counsel by
inviting our attention to Section 11 of the MMC Act contends that
the expression "if at any time during his term" occurring therein has
been considered by this Court in Javed Sheikh Mustaque Patel
(supra) as would be indicated by observations in para 22 of the
judgment and the judgment in Edwin Britto (supra) has in fact been
distinguished on account of absence of this phraseology in
Section 16(1D) of the Bombay Municipal Corporation Act as
compared to the language used in Section 44(1)(e) of the
Maharashtra Municipal Councils, Nagar Panchayats and Industrial
Townships Act, 1965 (the Act of 1965, hereinafter), in light of which
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he states that the interpretation sought to be put by Shri Amit
Kinkhede learned Counsel for the petitioner on Section 10(1D) of
the MMC Act is misconceived. He submits that there is no call or
reason for this Court to differ from the view taken in Mallesh Shetty
(supra) and the request as put forth by Shri Kinkhede, learned
Counsel for the petitioner be turned down. He further places
reliance upon the judgment of the Aurangabad Bench in the case of
Umesh Deorao Pawale -Vs- The State of Maharashtra, Through its
Principal Secretary, Urban Development Department, Mantralaya,
Mumbai (Writ Petition No.9947/2018, decided on 17/10/2019).
9. Before we consider the arguments advanced it would be
prudent to consider the applicable provisions of law and the
language used therein on the background of which the rival
contentions can then be considered.
10. A comparative table of the relevant provisions, depicts
the following position :
Sec. 10(1D) Mah. Sec. 16-1-D Bombay Sec. 44(1)(e) Mah
MC Act 1949 MC ACT 1888 Act, 1965
10. Disqualification 16. Disqualifications 44. Disqualification of
for being a for being a councillor.- Councillor during his
councillor.- term of office.-
(1) A Councillor shall
(1) Subject to the (1) A person shall be be disqualified to
provisions of sections disqualified for being hold office as such, if
13[***]and 404, a elected [*] [*] and for at any time during his
person shall be being a councillor if term of office, he--
such person-
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disqualified for being
elected and for being (1D) A Councillor shall
a councillor, if such be disqualified for (e) has constructed or
person - being a Councillor, if constructs by himself,
10. such Councillor has his spouse or his
(1D) A Councillor constructed or dependent, any illegal
shall be disqualified constructs by himself, or unauthorised
for being a Councillor, his spouse or his structure violating the
if such Councillor has dependent, any illegal provisions of this Act,
constructed or or unauthorised or the Maharashtra
constructs by himself, structure violating the Regional and Town
his spouse or his provisions of this Act Planning Act, 1966 or
dependent, any illegal or the Maharashtra the rules or bye-laws
or unauthorised Regional and Town framed under the said
structure violating the Planning Act, 1966 or Acts ; or has directly
provisions of this Act the rules or bye-laws or indirectly been
or the Maharashtra framed under the said responsible for, or
Regional and Town Acts; or has directly or helped in his capacity
Planning Act, 1966 or indirectly been as such Councillor in,
the rules or bye-laws responsible for, or carrying out such
framed under the said helped in his capacity illegal or
Acts; or has directly as such Councillor, in unauthorised
or indirectly been carrying out such construction or has by
responsible for, or illegal or unauthorised written
helped in his capacity construction or has by communication or
as such Councillor in, written physically obstructed
carrying out such communication or or tried to obstruct
illegal or physically, obstructed any Competent
unauthorised or tried to obstruct any Authority from
construction or has by Competent Authority discharging its official
written from discharging its duty in demolishing
communication or official duty in any illegal or
physically, obstructed demolishing any illegal unauthorised
or tried to obstruct or unauthorised structure
any Competent structure. Such
Authority from disqualification shall
discharging its official be for the remainder of
duty in demolishing his term as a
any illegal or Councillor from the
unauthorised date of the declaration
structure. Such of such structure to be
disqualification Shall illegal or unauthorised
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be for the remainder by the concerned
of his term as a authority under the
Councillor from the provisions of the said
date of the Acts or, as the case
declaration of such may be, from the date
structure to be illegal of commission of the
or unauthorised by act of interference or
the concerned obstruction by the
authority under the Councillor against the
provisions of the said Competent Authority.]
Acts or, as the case
may be, from the date
of commission of the
act of interference or
obstruction by the
Councillor against the
Competent Authority.]
11. Disabilities from Sec.16.
continuing as Disqualifications for
councillor. becoming a
A councillor shall Councillor.
cease to hold office as (1) ---
such if at any time
during his term of
office he-
(a) becomes
disqualified for being
a councillor by reason
of the provisions of
section 10.
(b) absents
12. Questions as to 18. Questions as to 44(2) When a
disqualification to be disqualifications to be Councillor whether
determined by the determined by Chief elected or nominated
Judge.- (1) If any Judge of the Small incurs any
doubt or dispute Cause Court.- disqualifications in
arises whether a Whenever it is alleged sub-section (1), it
councillor has ceased that any councillor has shall be the duty of
to hold office as such become disqualified the Chief Officer to
under section 11, for office for any submit a report to the
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such councillor or any reason aforesaid, and Collector within one
other councillor may, such councillor does month of his
and at the request of not admit the becoming aware of
the Corporation, the allegation, or the disqualification
Commissioner, shall whenever any through any source
refer the question to councillor is himself in whatsoever.
the Judge. doubt whether or not 44(3) In every case
he has become the authority to
(2) On a reference
disqualified for office, decide whether a
being made to the
such councillor or any vacancy has arisen
Judge under sub-
other councillor may, shall be the Collector.
section (1), such
and the Commissioner, The Collector may
councillor shall not be
at the request of the give his decision on
deemed to be
corporation, shall receipt of the report
disqualified until the
apply to the Chief of the Chief officer
Judge after holding
Judge of the Small under sub-section
an inquiry in the
Cause Court; and the (2), or on his own
manner provided by
said Chief Judge, after motion or on an
or under this Act
making such inquiry as application made to
determines that he
he deems necessary, him by a voter and
has ceased to hold
shall determine such decision shall be
office.
whether or not such communicated to the
Councillor has become Councillor concerned,
disqualified for being a the Chief Officer and
Councillor, and his the applicant, if any.
decision shall be Until the Collector
conclusive. 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.
11. The above comparative table will demonstrate that
Section 10(1D) of the MMC Act and Section 16(1D) of the BMC Act
are identically worded, as against which Section 44 (1) (e) of the Act
of 1965, is somewhat differently worded, however its import is similar.
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12. The provisions of the Act of 1965, contemplate two
different situations as is apparent from a perusal and comparison of
Sections 16 and 44 of the Act of 1965. Whereas Section 16, except for
Section16 (1-A) to 16(1-D), contemplates a situation where the
disqualifications for becoming a Councillor are prescribed, Section 44
as well as Section 16(1-A) to 16(1-D) of the Act of 1965, contemplates
a situation where a person is already elected as a Councillor and then
incurs a disqualification during the term of his office. There does not
appear to be a merging of the provisions or situations. Thus part of
Section 16 and Section 44 of the Act of 1965, contemplate two
different and distinct situations and make provisions for the same.
Further the authority to decide, whether disqualification has been
incurred, after being elected, is conferred upon two separate entities,
the Election Commission u/s 16(1-D) and the Collector u/s 44 (3) of
the Act of 1965.
13. As against the above the disqualifications for being
elected and for being a Councillor, both, are contained in Sections
10 & 11 of the MMC Act and Section 16 of the BMC Act and the
authority to determine the questions as to disqualifications is
conferred upon the 'Judge', as defined under the Acts.
14. In Javed Patel (supra) Edwin Britto (supra) has been
distinguished on account of a different phrase occurring in Section 44
of the Act of 1965 (para 22 of the judgment) .
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15. Umesh Pawale (supra) on which reliance has been placed
by Mr. S.P. Dharmadhikari, learned Senior Counsel was a case under
Section 10 (1) (i) of the MMC Act, which provides for disqualification
for a person for being elected as a Councillor on the ground of having
more than 2 children. In Umesh Pawale (supra), the election of the
petitioner therein, who was earlier elected as a Councillor of Nanded
Waghala City Municipal Corporation, was questioned by way of an
Election Petition under Section 16 of the MMC Act, and was set aside
by the Civil Court, which was confirmed up to the Hon'ble Apex Court.
The petitioner thereafter again contested the election held in the year
2017. An objection raised to his nomination was rejected, which
remained unchallenged. The petitioner once again got elected as a
Councillor. Though no election petition was filed by any defeated
candidate or voter, however, the Municipal Commissioner on his own
motion disqualified him by an order dated 24/8/2019, exercising
powers under Section 12 of the MMC Act under Section 10 (1) (i) of
the Act. This disqualification came to be challenged by the petitioner
by a writ petition before the High Court. The learned Division Bench,
after considering the language and import of Sections 10 and 11 of the
MMC Act, noticing the difference between the words 'disqualification'
as used in Section 10 and 'disability' as used in Section 11 held that
the same indicated that the legislature intended to provide two
independent remedies for two different contingencies, i.e. for
pre-existing disqualification at the time of election and disqualification
incurred after election. It further held that in Section 11 of the Act the
words "at the time of his election or appointment", in addition to
words "during the term of office", were not used by the legislature. It
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further held that if the intention of the legislature was to include both
the situations namely pre-existing disqualification at time of election
and disqualification incurred after the election, during the term of
office, the Legislature would have used language as used in Section 16
of the Maharashtra Village Panchayats Act, 1959 i.e. "disqualification
at the time of election or appointment and during the term for which
the member has been elected or appointed incurs any of the
disqualification".
The above enunciation of law, in our humble opinion,
does not consider two factors:
First : That Section 11 of the MMC Act, which provides
for disabilities from continuing as a Councillor by virtue of clause (a)
includes all the disqualifications as enumerated in Section 10 of the
MMC Act, though the same will have to be construed in light of the
expression 'during his term of office' as occurring in the beginning of
portion of Section 11. Considered thus the disqualifications under
Section 10 which would be considered to be pre-existing
disqualification would continue to hold good as reasons for
disqualification of a Councillor ever during his term of office.
Second : That once the provisions of a Statute declare
that a particular act, amounts to disqualification, and such a
disqualification appears to exist in the person who files his
nomination, merely for the reason that an objection was not taken and
the acceptance of nomination of such a person or his election is not
challenged, would not divest or denude him of such disqualification.
If this was so then even a person who stood disqualified, by virtue of
the law applicable, at the time of his nomination, in absence of any
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objection being raised, would be elected and became a Councillor,
merely in default. In other words, could it be said that if a
disqualification exists, [as in the case of Umesh Pawale (supra) which
was confirmed up to the Apex Court], then such disqualification
would be limited up to the stage of the first election and, would stand
wiped out when, the next election is being contested ?
Would such disqualification, in absence of an objection or
challenge, would loose its effect and would become redundant, not
liable to be considered due to mere passage of time. Could it not be
said that once a Statute provides for a disqualification, it stands for
good throughout. In other words, if an action is statutorily considered
to be a disqualification, even at the initial stage of filing of
nomination, how can it become legal or permissible or come out of the
disqualification, at a subsequent point of time, only because someone
has not objected to it. A disqualification, if it is shown to exist, would
continue to exist, unless the Statute provides for circumstances to
nullify its continued existence. So also an action, which is statutorily
considered to be a disqualification, unless the same, is shown to be
capable of being rectifiable and is in fact so rectified, would also
continue to be a disqualification, pre-existing or post election.
Sections 10 & 11 of the MMC Act, do not make any distinction
between a pre-existing (nomination stage) disqualification and a post
(after election) disqualification. As stated above, all so called pre-
existing (nomination stage) disqualifications continue to be
disqualifications post-election, in view of Clause (a) of Section 11 of
the MMC Act which includes the disqualification under Section 10 in
the disqualification enumerated in Section 11 of the MMC Act.
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Umesh Pawale (supra), further holds that the authority
contemplated under Section 12 of the Act is the "Judge" and it does
not cover Municipal Commissioner and therefore the Commissioner is
not competent to pass an order of disqualification on his own against
the elected Councillor, but is required under Section 12 (1) of the Act
to make reference to the judge on a request by the Corporation. What
does the expression "on a request by Corporation" means is not
considered in Umesh Pawale (Supra).
16. In Edwin Britto, (supra) while construing Section 16(1D)
of the BMC Act, which is identical to Section 10(1D) of the MMC Act,
a learned Single of this Court, held as under :-
"13. Perusal of the above quoted provisions shows that if a
Councillor has erected an unauthorised structure, then he
cannot be a Councillor. It is submitted that, if an
unauthorised structure is erected by a Councillor after his
election, then only the provision disqualifies him to be a
Councillor. If this construction is accepted, the words "has
constructed" become meaningless. Use of the phrase "has
constructed" signifies that the intention of the legislature was
to disqualify from holding the office of Councillor such person
who has erected unauthorised structure in the past when he
was not a Councillor. The intention appears to be to avoid
likelihood of conflict between duty and interest. The person
who has erected unauthorised structure before his election as
Councillor would not be interested in removal of
unauthorised structures and, therefore, the view of the
legislature appears to be to discourage election of persons
who are responsible for raising unauthorised structures.
Perusal of the provisions of section 16(1-D) further shows
that when the legislature wanted the capacity as a Councillor
to be relevant the legislative provision has clearly indicated
that. Insofar as the structure which is not erected by the
person himself, but in relation to which he has merely helped,
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that help should be in his capacity as a Councillor. So far as
raising of structure is concerned, the raising of unauthorised
structure by him or his family need not be after his election.
Even if an illegal, structure is raised by the person before his
election, on being found that he was responsible for raising
the unauthorised structure, he can be disqualified from being
a Councillor. I have perused the provisions of section 16(1-B)
and 16(1-C) They were added by the same Act of the State
Legislature which added section 16(1D) and they all relate to
disqualification of a Councillor, but those provisions are of
different nature and are not relevant for construing the
provisions of section 16(1D). In my opinion, therefore, the
disqualification under the provisions of section 16(1D) will
operate even if the Councillor had erected unauthorised
structure even before his election as a Councillor. In enacting
the provisions of section 16(1D) of the Act, the intention of
legislature was to enable the Corporation to effectively tackle
the growing menace of illegal construction. One of the
mandatory duties of the Corporation as local body and as a
planning authority is to prevent erection of unauthorised
structures and to demolish unauthorised structures. If a
person who himself has erected an unauthorised structure is
elected a Councillor, there is likelihood of there being conflict
between duty of such a person as a Councillor and his interest
in retaining the unauthorised structure. Therefore, the
legislature in order to prevent such a person being elected as
a Councillor has used the words "has constructed" in section
16(1D) of the Act. It is pertinent to note here that in the
Reply affidavit filed by the respondent No. 3, there is no
challenge raised to the constitutional validity of the
provisions. Therefore, there is no question of this Court
making an attempt to read down the provisions. The
provision will have to be given its full meaning. If that is
done, a person who has erected any unauthorised structure at
any time is disqualified to be a Councillor. As observed above,
as a result of the order of the Division Bench, it is an
established fact that the respondent No. 3 has erected an
unauthorised structure."
17. Section 16(1D) of the BMC Act, again came up before the
Division Bench of this Court in Mallesh Shetty (supra) in which
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without noticing Edwin Britto (supra), it was held as under :
"10. The Commissioner, in our view, wrongly held that the
petitioner has carried out unauthorized construction,
considering the Scheme of sections 10(1D), 11 and 12 of the
MMC Act. It is necessary for the Commissioner to come to the
conclusion that as to whether the petitioner, being the
Councillor, has carried out unauthorized construction during his
present tenure. Admittedly, there is no such case that such
construction is carried out during his present tenure. No such
action was taken in the petitioner's earlier tenure. The
conclusion so arrived at by the Commissioner is without any
discussion on the interpretation of section 10(1D) and whether
such construction activities were carried out during the
petitioner's earlier tenure cannot be countenanced and cannot
be the foundation to dislodge a sitting Councillor. The
Commissioner has no authority and jurisdiction even to take
such decision, without deciding the issues/disputes for want of
specific provisions, is another factor. The drastic action of
disqualification, based upon such unauthorized construction,
which is not during the present tenure, is therefore, bad in law.
Respondent No. 1 cannot be permitted to add more reasons
through an affidavit in reply, in the Writ Petition, in this regard.
11. The fact that the construction is still in existence, in our
view, cannot be the reason to dislodge the elected Councillor
without following due procedure of law and by not referring the
matter/proposal to the General Body of the Corporation for
making a reference to the Judge. Issue of illegal construction
was prejudged and is subject matter of pending Suit.
17. The scheme of section 12 of the MMC Act, so referred above,
itself provides that in case of doubt and/or dispute, it is
necessary for the Councillor and/or the other person and/or by
the Commissioner to refer the matter to the Corporation's
General Body/Corporation, so that the appropriate decision can
be taken as to whether to take/refer this issue to the Judge
under section 12 of MMC Act. Admittedly, there is no such
procedure followed in this matter. In absence of any specific
power, as recorded above, without making reference and/or
seeking approval from the General Body, the impugned order
has been passed by the Commissioner. We cannot overlook the
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mandate of section 12, which provides that in case of doubt
and/or disputes, it is necessary to refer the issue to the Judge so
that appropriate order and/or decision can be taken on all
aspects, revolving around, whether the structure is unauthorized
and/or whether the construction was constructed during the
tenure and/or whether the petitioner has incurred
disqualification, as referred above. All these provisions, in our
view, are necessary to be followed prior to the person who is
elected in such election, incurs disqualification. Such drastic
action/order, in our view, just cannot be passed without giving
full opportunity to the sitting Councillor, at every stage. As
noted, there are various lacunas before passing the impugned
order in question. The initiation of such steps, therefore, in our
view, is impermissible, contrary to law and unsustainable."
18. The expression 'has constructed' as occurring in
Section 10 (1D) of the MMC Act, is capable of denoting a thing of the
past, as well as a thing which is being done, an action which includes
past and present, so as to form the present perfect tense. The present
perfect tense is used when talking about experiences from the past, a
change or a situation that has happened in the past but is still
continuing today. In that sense of the matter, the expression 'has
constructed', can be applied, to something which has already been
done, concluded at a prior point of time, also. In other words, it is
capable of taking in its fold, the past and present actions or either of
them.
19. As it appears from a reading of the language of Section
16 (1D) of the BMC Act and Section 10 (1D) of the MMC Act, the
purpose behind its enactment, was to curb the rising menace of
unauthorised construction which had spread its tentacles throughout,
wp5075 of 2019.odt
and the Corporation which was statutorily bound to ensure the same,
but had miserably failed to check it, could not be seen to be protecting
such acts in case they were found to have been done by its elected
representatives. However, to construe the expression 'has constructed',
as one relating to only the act done by or attributable to the
Councillor, during his tenure, after being elected, would tantamount
to washing away all his past sins, done prior to his being so elected. If
this is so then any unauthorised construction done by any Councillor,
prior to his being elected, though may be subject to the normal
process of its removal under the Act, would not come in the way of the
Councillor being elected or continuing as such. Could this be said to
be the avowed purpose of the above provisions, is a serious issue
which needs to be authoritatively decided, as once being elected, no
Councillor would be voluntarily coming forward to say that he would
demolish the unauthorised construction made prior to his election.
The position would rather be to the contrary as he may use his
position to ensure that such construction is saved anyhow.
20. In the above view of the matter, we are of the considered
opinion that there appears to be a conflict between the view taken in
Edwin Britto (supra) and Mallesh Shetty (supra). While Edwin Britto
(supra) holds the expression 'has constructed', as occurring in Section
16 (1D) of the MMC Act, to include an illegal/unauthorized
construction made by the Councillor before being elected as a
Councillor, Mallesh Shetty (supra), holds the illegal/unauthorized
construction made by a Councillor before being elected, as not being
included within the scope and ambit of Section 10 (1D) of the MMC
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Act. As stated above, the language of Section 16 (1D) of BMC Act and
Section 10 (1D) of the MMC Act, are in pari materia.
21. There is another conflict between Edwin Britto (supra)
and Mallesh Shetty (supra) in as much as in Edwin Britto (supra), the
Court upholds the disqualification of the Councillor on account of the
Councillor having erected an unauthorized construction, which
disqualification, is reflected from an order passed by the Additional
Municipal Commissioner. In Mallesh Shetty (supra) the Court holds in
para 17, that under the scheme of Section 12 of the MMC Act, it is
necessary to refer the matter to the Corporation's General Body for a
decision whether to refer the issue of disqualification to the Judge
under Section 12 of the MMC Act. The language used in Section 12 of
the MMC Act "at the request of the Corporation, the Commissioner
shall refer the question to a Judge", is similar to the language in
Section 18 of the BMC Act "the Commissioner, at the request of the
Corporation shall apply to the Chief Judge of the Small Cause Court".
There therefore also appeals to be a conflict on this issue between
Edwin Britto (supra) and Mallesh Shetty (supra).
22. The expression "if at any time during his term of office,
he-" occurring in Section 11 of the MMC Act could be interpreted to
mean, either that the unauthorized construction has been done by the
Councillor after being elected or it could also be interpreted to mean
unauthorized construction already done in the past, but which has
been declared as unauthorized after his assuming office as a
Councillor. Though an elected representative ought not to be
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prevented from exercising his office, however, the restrictions as
imposed by the Statute would clearly govern the further exercise of his
office.
23. We therefore deem it appropriate to frame the following
questions :-
(A) Whether the expression 'has constructed' as
used in Section 16 (1D) of the BMC Act and Section 10
(1D) of the MMC Act would include an
unauthorized/illegal construction, erected by a
Councillor, before being elected as a Councillor so as to
attract the disqualification ?
(B) Whether the expression "has constructed"
would include an unauthorized construction already in
existence, when acquisition of the property is made by
the Councillor, whether before or after he assumes office
as a Councillor ?
(C) Whether the reference to the Judge, as
provided for, in Section 18 of the BMC Act and Section
12 of the MMC Act, can be done by the Municipal
Commissioner as a person being incharge of the
Corporation, or is required to be done by the General
Body of the Corporation ?
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24. The Registry is therefore requested to take appropriate
steps to place the matter, before the Hon'ble the Chief Justice for
considering the constitution of larger bench, for an authoritative
decision on the above questions, as deemed fit and proper.
(AVINASH G. GHAROTE, J.) (SUNIL B. SHUKRE, J.)
Wadkar
Digitally signed
by Shailendra
Shailendra Wadkar
Wadkar Date:
2021.01.04
17:00:09 +0530
