JUDGMENT - P.C.:---Rule. Rule made returnable forthwith. The learned Assistant Government Pleader waives service for the respondent Nos. 1 to 3. By consent, the petition is taken up for hearing. We have heard the learned Counsel for the respective parties.

2. The petitioner, an elected member of the Roha Municipal Council (hereinafter referred to as "Council" only), has challenged the order dated 16th February 2001 issued by the respondent No. 2, viz. the Collector, Alibag, under section 44(1)(b) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Township Act, 1965 (hereinafter referred to as "the said Act") thereby, disqualifying him as a member of the Council.

The last election of the said Council was held in 1996 and the petitioner was elected as Councillor. The petitioner was also elected as a member of the Education Committee constituted under section 63 of the said Act. This committee consists 10 members. The election of the petitioner and other elected members of the Education Committee was published in the Government Gazette dated 12th March, 1999. The petitioner was thereafter elected as a Chairman of the said committee and was holding charge till the impugned order was passed.

3. The proceedings were initiated against the petitioner under section 44(1)(b) of the said Act by issuing a notice to him on 2nd December 2000. The ground enumerated in the said notice was that the petitioner diverted Rs. Five lacs of the Primary Education Fund as fixed deposit in the Kalasgiri Nagari Co-operative Credit Society in contravention of section 46 of the Bombay Pre Primary and Primary Education Act, 1947 (hereinafter referred to as the "Primary Education Act"). It is further mentioned in the notice that the petitioner, being a Chairman of the aforesaid co-operative credit society, has an interest in the said society and the society has not been approved by the State Government as contemplated under section 46 of the Primary Education Act. By this notice, the petitioner was called upon to show cause as to why the action under section 44(1)(b) of the said Act should not be taken against him and ten days time was granted to the petitioner to give his reply to the notice.

The petitioner by his reply dated 12th December, 2000, explained that he is only an elected Chairman of the aforesaid co-operative credit society and he does not have in it any personal interest. He has also quoted the instances of depositing the municipal funds in the co-operative banks and has claimed that there is a practice of keeping the municipal funds as a fixed deposit in co-operative banks also. According to the petitioner, the decision of diverting Rs. Five lacs in the Co-operative Credit Society as a fixed deposit was of the Education Committee and on 20th December 2000 the said amount with interest has now been returned to the Council.

The respondent No. 2 after considering the reply of the petitioner dated 12th December 2000 passed an order on 16th February 2001 thereby disqualifying the petitioner under section 44(1)(b) read with section 16(3)(b) of the said Act. This order of the Collector is under challenge in the instant petition.

4. In the present petition, we propose to consider the arguments advanced by the learned Counsel appearing for the parties only on the question of law involved in the petition. We are, therefore, not inclined to entertain the submissions of the learned Counsel appearing for the petitioner whereby he has attributed political motive behind the impugned order. The issue raised for our determination is as follows :

"Whether the respondent No. 2 was justified in disqualifying the petitioner under section 44(1)(b) read with section 16(3)(b) of the said Act, assuming that the allegations against the petitioner are true and correct"?

At this stage only, we would like to make ourselves clear that we are not expressing any opinion as to whether the allegations are true or false. Since the petition can be disposed of by

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