DESHMUKH D.K.,J.: - By this Petition, the petitioner challenges the order passed by the Additional Municipal Commissioner, Western Suburbs of the Mumbai Municipal Corporation dated 8th January, 2004. By that order, the Additional Municipal Commissioner, respondent No.2 in this Petition, has held that the respondent No.3 is not disqualified to be a Councillor of the respondent No.1, the Municipal Corporation because of the provisions of section 16(1-D) of the Mumbai Municipal Corporation Act, 1888 (hereinafter referred to as "the Act"). The facts that are material and relevant for deciding this petition are as under :-

That the petitioner filed Writ Petition No. 1275 of 2003 in this Court. By that petition, the petitioner sought direction to the respondent No.1 - Municipal Corporation to evolve a procedure to enable the aggrieved person to approach the designated Competent Authority with complaint against Councillors who are disqualified to be Councillor under section 16(1-D) of the Act. It may be pointed out that section 16(1-D) of the Act incorporates a provision for disqualifying a person from being a Councillor of the respondent No. 1 Municipal Corporation if such Councillor has constructed any illegal structure. The respondent No. 3 was also a party to that Petition. It appears that the respondent No. 3 was elected as a Councillor of the respondent No.1 - Corporation on 12th February, 2002. Before his election as a Councillor, the respondent No.1 had issued a notice dated 24th May, 2001 to the respondent No. 3 under section 351 of the Act stating therein that the respondent No.3 has erected the constructions without the permission of the Competent Authority and, therefore, he was called upon to remove that construction. He was also told that if he fails to remove the construction within the time allowed, then the Corporation shall do the same. After receiving the notice, the respondent No.3 addressed a letter dated 30th May, 2001 stating therein that the construction to which the notice relates is occupied by him as a tenant for the last 70 to 80 years and that the construction was in existence prior to 1962 and that the gallery is very old and the repairs to the same has been carried out 10 to 15 years back. He stated that the notice has been issued by the Corporation to him because some anti-social elements have complained against him.

2. The Assistant Municipal Commissioner made final order after considering the explanation given by the respondent No.3 on 18th January, 2003 stating therein that the explanation given by the respondent No. 3 is not satisfactory. In the order, reasons were given why the explanation is not found satisfactory and the respondent No.3 was called upon to demolish the unauthorised work. The order was not challenged by the respondent No.3. It appears that thereafter the respondent No.3 issued a notice to the Municipal Corporation through a lawyer. In that notice, a grievance was made about the final order dated 18th January 2003. In that notice, it was stated by the respondent No. 3 that the building was owned by one Mr. Madan Kundecha. After receiving the notice, it appears that the Corporation sent a communication dated 28th February, 2003 to the said Madan Kundecha asking him to produce authorisation for raising the construction. That letter, it appears, was replied by Madan Kundecha by his communication dated 23rd June, 2003.

3. In the Writ Petition filed by the petitioner, the entire correspondence referred to above, was produced. After hearing all the parties involved, the Division Bench of this Court by order dated 19th November, 2003, disposed of that Petition. By para 2 of the order, the respondent No. 2 - Additional Municipal Commissioner was directed to decide the question of disqualification of the respondent No.3 under section 16(1-0) of the Act. The Deputy Municipal Commissioner was directed to demolish the unauthorised structure in respect of which final orders were passed on 18th Jan

Click Here to Read the rest of this document