Amol alias Amolkumar Gajanan Naik vs Director of Municipal Administration, Goa & others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1987 Supreme(Bom) 168

IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
Z.F. Couto G.D. Kamat, JJ.
Amol alias Amolkumar Gajanan Naik.... Petitioner.
Versus
Director of Municipal Administration, Goa others.... Respondents.
Writ Petition No. 28 of 1987, decided on 12-5-1987.
Advocates appeared :
S.G. Dessai, with R.V. Kamat, for petitioner.
F.J. Colaco, for respondent No. 6.
Respondent No. 5 in person.

Headnote:GOA, DAMAN AND DIU MUNICIPALITIES ACT, 1968
       Section 46 (c)-Scope and applicability of.
       Having regard to the expression used in Section 46 (c) it is clear from the expression in Section 46 (c) that even when the Councillor who had accepted a brief as a legal practitioner prior to his election continues his engagement as an advocate after he gets elected would be sufficient to disqualify him. Only acquisition of new matters would attract Section 46 (c) to disqualify is misconceived inasmuch as the object of the section is that a Councillor once being elected must not be professionally interested or alleged in any case for or against the Council. Hence even when a councillor is engaged prior to his election in a case must cease to represent sufficient once he is so elected and therefore, taking any view of the matter it if not possible to hold that because the petitioner was engaged in all these 6 suits prior to his election, therefore, he does not incur disqualification spoken in Section 46 (c) cannot be accepted.
       Section 46(c)-Disqualification of Councillor-Prior to election councillor accepting certain suit- Withdrawing from such suits after his election - After application for adjournment in plaintiffs absence to save dismissal of suit.
       Held, petitioner certainly took important and tangible steps in suit. Petitioner certainly professionally interested when he made appearance for adjournment of case. Held, it could not be said that councillor had not incurred any disqualification spoken to in Section 46 (c).
       Section 46 (c)-Disqualification of councillor.
       Councillor as legal practitioner accepting certain cases prior to election.
       After election, although withdrawing from certain cases, but no withdrawing from others for some impediment or the other. Intention of councillor to with draw from each and every suit must be specific. Merely because he withdraw from some suits, it could not be accepted that he intended to withdraw from other suit. Held, councillor would incur disqualification spoken to in Section 46 (c).
       Section 46 (c)-Disqualification of Councillor-Grievance based on newspaper report-Councillor appearing on behalf of association after his election -No other evidence.
       Held, newspaper report could not be relied upon. Without any other evidence, it could not be said that councillor represented association in any litigation.
       Section 46 (c)-Construction of.
       Section 46 (c) imposing disqualification of councillor is a penal provision. Strict construction of such legal provision must be put on-Interpretation of statutes-Provision Construction of. Case law discussed.
       Section 46 (4), Proviso-Disqualification of councillor-Whether inquiry is contemplated for disqualifying a councillor under Section 46 (c).
       Proviso to sub-section (4) of Section 46. No order shall be passed under sub-section (3) by Director, Administrative Tribunal in appeal against any councillor without giving him a reasonable opportunity of being heard. Held, No prohibition for an inquiry. On the contrary reasonable opportunity of being heard would embrace in it an inquiry, provided it is sought by any of parties thereto. Request of the party before Director of Municipal Administration, seeking an inquiry in the matter relating to disqualification of councillor, ought be acceded to.

JUDGMENT - G.D. KAMAT, J.:---This petition bring to the fore section 46(c) of the Goa, Damn and Diu Municipalities Act, 1968 for short 'the Act'. That section reads :---

"46. 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) ............................................................................................

(d) ............................................................................................

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;

Provided that ---

(i) a Councillor shall not be disqualified under clause (c) if he is engaged for the Council without receiving any remuneration therefore or appears and conducts his own case in a Court of law or before any authority under this Act against the Council irrespective of whether such a Councillor is a legal practitioner by profession or not;

(ii) ...........................................................................................

(2) ...........................................................................................

(3) In every case the authority to decide whether a vacancy has arisen shall be the Director. The Director 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 Until the Director 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 Director may within a period of fifteen days from the date of receipt of the decision of the Director by him, appeal to the Administrative Tribunal and the orders passed by the Administrative Tribunal shall be final :

Provided that no order shall be passed under sub-section (3) by the Director or under sub-section (4) by the Administrative Tribunal in appeal, against any Councillor without giving him a reasonable opportunity of being heard.

Explanation.---If any elected, co-opted or nominated Councillor were subject to any disqualification specified in section 16, at the time of his election, co-option or nomination, as the case may be, 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, co-opted or nominated."

2. Before we come to the details of the facts on which the present petition is based or for that matter the basis on which the jurisdiction of the Director of Municipal Administration was invoked by the fifth respondent, it will be advantageous to understand and discern the scheme and object of the section in question. It maybe seen that the section comes into operation once the election is held and during the term of his office a Councillor is sought to be disqualified because he is professionally interested or engaged in any case for or against the Council. On a bare reading of this section it is clear that the section is of quasi penal nature and seeks to disturb the elected office of a representation of the people and being so, the interpretation of such quasi penal statute must be strictly done. The underlying policy of this section is that the object and purpose to be achieved is the purity of public life and viewed in that context it must be held that this section has been introduced in the Municipality Act so that there may not be a conflict between interest and duty. From a point of view of a Councillor who is professionally interested or engag

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