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IN THE HIGH COURT OF BOMBAY
Khanwilkar A.M., J.
Sajeda Nihal Ahmed .... Petitioner.
Versus
Malegaon Municipal Corporation others.... Respondents.
Writ Petition No. 2465 of 2004 alongwith Civil Application Nos. 1839 1840 of 2004, decided on 12-8-2004.
Advocates appeared :
M.P. Vashi i/b. M.P. Vashi Associates in W.P. No. 2465/2004 alongwith C.A. Nos. 1839 1840/2004, for petitioner.
N.V. Walawalkar with S.M. Sabrad in W.P. No. 2465/2004 alongwith C.A. No. 1839/2004, for respondents 1 2 in W.P. No. 2465/2004 alongwith C.A. No. 1840/2004, for respondent No. 1.
P.I. Khemani, A.G.P. in W.P. No. 2465/2004 alongwith C.A. No. 1839/2004, for respondent No. 3 in W.P. No. 2465/2004 alongwith C.A. No. 1840/2004, for respondent No. 2.
A.R. Shaikh in W.P. No. 2465/2004 alongwith C.A. No. 1840/2004, for intervenor-applicant.
Held, that the Bombay Provincial Municipal Corporations Act provides for a complete mechanism for adjudicating the issue or question as to whether concerned member or councillor has incurred disqualification. If it is so, the issue of disqualification can be considered only by that authority and none else, and only in the manner specified by the Act and the Rules made thereafter. The expression "doubt" or "dispute" will have to be understood to mean that whenever concerned Councillor contests the position that he has incurred any disqualification, then in such a case, it is not open for the Municipal Commissioner to himself examine whether the stand taken by the Councillor is appropriate or otherwise. The only course open to the Municipal Commissioner will be to make reference to the "Judge" as defined under Section 2(29) of the Act. Any other view will result in rewriting the Law made by the Legislature. Indeed, the factum of order of conviction having been passed and the same was still operating against the petitioner, even if is indisputable, even so, it cannot be assumed that she has incurred disqualification for it is imperative to find to whether that offence involves moral turpitude. That question will still have to be considered and answered before taking the view that the petitioner has in fact incurred disqualification and, such as enquiry will have to be made only by the concerned Judge, to which reference will have to be made under Section 12(1) of the Act. Thus it was obligatory on the part of the Municipal Commissioner to make reference to the concerned "Judge" under Section 12(1) of the Act, who alone would be competent to answer that issue. In this view of the matter, the impugned decision of the Municipal Commissioner will have to be set aside being without jurisdiction, however, at the same time, leaving the question of making reference to the concerned Judge open. 2001 (4) Mh LJ 643 and 2004 (3) Mh LJ 435 : 2004 (2) All MR 1 - Referred.
2.Rule. Rule made returnable forthwith, by consent. Mr. Sabrad waives notice for respondents 1 and 2 in Writ Petition No. 2465/04 and Civil Application No. 1839/04 and for respondent No. 1 in Civil Application No. 1840/04. Mr. Khemani, A.G.P. waives notice for respondent No. 3 in Writ Petition No. 2465/04 and Civil Application No. 1839/04 and for respondent No. 2 in Civil Application No. 1840/04. Mr. Shaikh waives notice for Intervenor Applicant in Civil Application No. 1840/04.
3.As short question is involved, the matter is heard for final disposal forthwith, by consent.
4.This writ petition takes exception to the decision of the Municipal Commissioner, Malegaon Municipal Corporation, Malegaon dated February 23, 2004. The principal question involved in this petition is: whether the Commissioner had jurisdiction to declare that the petitioner has incurred disqualification from being continued as Councillor under section 10(1)(a) of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as 'the Act'). The question is concluded by the recent unreported decision of this Court in Writ Petition Nos. 3218 to 3231 of 2004 decided on July 23, 2004 in the case (Madhukar Deoman Patil etc. v. State of Maharashtra others etc. etc.)1, reported in 2004(6) Bom.C.R. 659. However, according to respondents 1 and 2, the question is still open for consideration. According to Mr. Walawalkar for the said respondents, it is only where there is any doubt or dispute regarding the issue of disqualification of the Councillor, it may be obligatory on the part of the Commissioner to make reference to the Judge in terms of section 12(1) of the Act and not otherwise. In substance, the argument proceeds on the basis that in the fact situation of the present case, neither there can be any doubt nor dispute that the petitioner had incurred disqualification within the meaning of section 10(1)(a) of the Act. Inasmuch as, the fact that the petitioner has been convicted for offences under sections 353, 504 and 506 of the Indian Penal Code is not in dispute; nor in doubt. Mr. Walawalkar further contends that the nature of offence for which the petitioner has been convicted by Court of competent jurisdiction, clearly involves moral turpitude; and for which reason, the petitioner has automatically ceased to hold the office as Councillor. Therefore, the Commissioner was competent to pronounce the decision which is impugned in this petition. Mr. Walwalkar further submits that in any case, having regard to the seriousness of the offence, of which the petitioner has been found to be guilty and has been convicted, this Court in exercise of writ jurisdiction ought not to interfere with the decision of the Municipal Commissioner, which is founded on sound and established principles.
5.Before I proceed to examine the argument canvassed on behalf of the respondents, it will be necessary to spell out relevant facts that have led to the filing of the present petition. The petitioner was elected as a Councillor of the Malegaon Municipal Corporation. She was later on elected as Chairman of the Standing Committee. While in office, the petitioner was prosecuted in respect of offence punishable under sections 353, 504 and 506 of the Indian Penal Code, which was stated to have been committed in the year 1997; and that Criminal Case No. 242 of 1997 ended in holding the petitioner guilty of the said offence. Accordingly, the petitioner has been convicted and sentenced by the Competent Criminal Court on 8th January, 2004. It is not in dispute that the petitioner, has thereafter, challenged the said decision of the Criminal Court in Appeal. During the pendency of the said appeal, the petitioner has been released on bail by suspending the sentence imposed by the Criminal Court. It is, however, not in dispute that the order of conviction is not expressly stayed by the Appellate Court. Be that
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