2005 Supreme(Bom) 1250

IN THE HIGH COURT OF BOMBAY
KESHAV SHANKAR EKBOTE
Versus
STATE OF MAHARASHTRA
Decided On : (SEPTEMBER 16, 2005) 2006

Headnote:Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act (40 of 1965) - Section 16(1)(i) - Disqualification under Section 16(1)(i) - Grant of lease of land by Municipal Council to the Trust whose President was husband of the President of the Council - Execution of agreement was much prior to the date on which respondent No. 2 assumed charge of President of the Municipal Council - No specific allegations by complainant so as to fit the same in the grounds mentioned in the statutory disqualification and no cogent material to establish the same - Respondent cannot be said to be disqualified. - Only when a Councillor as a Councillor or a member of any committee votes in favour of any matter in which he has, directly or indirectly by himself or his partner, any such share or interest as described in clauses (a), (b), (c), (e) and (g) of Section 3 of Section 16, it would invite disqualification as provided under Sections 16 and 44(b) of the Act. It can be seen from perusal of sub-section 3(a) of Section 16 that a person shall not be deemed to have incurred disqualification under clause (i) of Section (1) by reason of his having any share or interest in any lease, sale or purchase of any immovable property or any agreement for the same. Therefore, merely because the husband of respondent No. 2 has any share or interest in the lease of the said land, it will not be sufficient enough to invite provisions of Section 16(1)(i) of the said Act for disqualification. Even if the husband of the petitioner has any share or interest in the said lease, then merely by having such share or interest, a case is not made out for disqualification under Section 16(1)(i), unless it is proved that such Councillor, as a Councillor or a member of Committee has voted in favour of a resolution of any matter in which he has share or interest as contemplated in any of the clauses in subsection (3) of Section 16. This is not the case of the petitioner. Even factually also it cannot be; since the resolution to award the land to the said Trust was passed in the year 1997 i.e. much prior to the date on which respondent No. 2 was elected as a President.

       Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act (40 of 1965) - Section 44(e) - Disqualification under Section 44(e) of the Councillor - Burden of proof. - The only allegation made by the petitioner was that the land awarded for development of garden and growing of trees to the Trust is being used for the school purpose and for that purpose, illegal construction is being made.

       Mere allegation in this respect is not sufficient enough to discharge the burden of a person who invokes the jurisdiction for disqualification on a statutory ground. It is necessary for such a person to establish the allegations made by producing cogent material. From the allegations and the material relied by the petitioner, the petitioner has failed to establish that a case is made out for incurring disqualification under Section 44(e) on any of the grounds. Even factually, from the perusal of the record, it is difficult to accept that the so-called construction is in any way illegal or unauthorised. Insofar as the first ground is concerned, the said construction was constructed in view of the permission granted by the Chief Officer of respondent No. 1-Municipal Council, much prior to the date on which respondent No. 2 has assumed the office of President of Municipal Council and therefore, case for disqualification is not made out on the said ground. Insofar as the second ground is concerned, it has to be established that the Councillor has directly or indirectly been responsible for or has helped in his capacity as such Councillor in carrying out any illegal or unauthorised construction. It is, thus, clear that the said disqualification would incur if a Councillor, directly or indirectly, is responsible or has helped in his capacity as such Councillor in carrying out the illegal or unauthorised construction. Insofar as the third ground is concerned, it is not even the allegation that the respondent No. 2 has obstructed the competent authority either by written communication or has physically obstructed or tried to obstruct any competent authority from discharging its official duty in demolishing any illegal or unauthorised construction. Therefore, the case of the petitioner would also not fall under the third ground. Therefore, the petitioner utterly failed to make out the case for disqualification under Section 44(e) of the said Act.

       Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act (40 of 1965) - Section 55-A - Complaint to State Government - Hearing by the Minister on behalf of the State Government - Procedure. - It is a settled law that the Authority which hears the matter is bound to follow its own best judgments. The Authority is not expected to be guided by the departmental notings. But it has to arrive at its own conclusion on the basis of subjective satisfaction by adopting process of reasoning. It appears that the first draft order and the departmental notings are prepared only on the basis of the report of the Collector. However, it appears that the Minister, who heard the matter on behalf of respondent No. 1, after taking into consideration the material placed on record and particularly, the reply of respondent No. 2, so also the reply of Municipal Council, came to a finding of fact that the acts alleged were much prior to the date on which the respondent No. 1 has assumed charge of the Municipal Council and therefore, he held that she was not liable to be disqualified under the provisions of Section 55-A of the said Act. It was not necessary for Minister to take a decision dictated by departmental notings and report of the Collector. The Minister has rightly decided the matter by following his own best judgments and arrived at subjective satisfaction after considering the relevant material.