BORDE R.M., J.: - The appellant, in this appeal, is calling in question the judgment and order dated 15.02.2007, passed by the learned Single Judge in Writ Petition No. 2773/2006, whereby the petition filed by present respondent came to be allowed and the order impugned therein dated 29.03.2006, passed by the appellant herein i.e. Commissioner, Nanded Waghala Municipal Corporation, Nanded, disqualifying the present respondent to act as Councilor of the said Corporation, in exercise of powers under section 10(10) of the Bombay Provincial Municipal Corporations Act, 1949 (for short 'the BPMC Act1, is quashed and set aside. The learned Single Judge further held that if any of the parties, including the petitioner and respondent, desires to refer the issue as regards disqualification under section 12 of the BPMC Act, the observations made in the judgment shall not be construed to be the observations touching merits of the matter.

2. Respondent herein is an elected Councilor of the Municipal Corporation. He was served with a show cause notice on 28.12.2005 calling upon him to show cause regarding his act of obstruction in the work of removal of encroachment in respect of community center and he was further directed to show cause as to why action of removal shall not be taken against him in exercise of powers under section 10(10) of thy BPMC Act. The contention of the elected representative/respondent herein was that he demanded copies of certain documents which were not supplied to him. He submitted a reply to the show cause notice on 3rd January 2006 and denied the allegations made against him. It was urged by the contesting respondent that the Commissioner has no jurisdiction to decide the issue. However, it appears that the Commissioner passed an order on 29.03.2006 declaring the respondent herein to be disqualified to work as Corporater. Hence the respondent approached this Court by filing Writ Petition No. 2773/2006.

3. After considering rival contentions of I the parties, the learned Single Judge, while deciding Writ Petition No. 2773/2006 along with other petitions of similarly situated councilors, allowed the petitions holding that the Commissioner had no jurisdiction to take action under section 10(10) of the BPMC Act.

4. We have heard Mr. S.V. Kurundkar, learned Counsel for the appellant.

5. According to learned Counsel for the appellant, disqualification, as provided under section 10(10) of the BPMC Act, is automatic and according to the learned Counsel, it is the Commissioner, who is the Competent Authority to deal with the question of disqualification in respect of the acts enumerated in sub-section (10) of section 10 of the BPMC Act. The learned Counsel for the appellant tried to draw an analogy in respect of the provisions contained in sub-sections (1B) and (1C) of section 10 of the BPMC Act. It would be appropriate to quote provisions of section 10(1-0) of the BPMC Act, which reads as follows:

"10(1-D). A Councilor shall be disqualified for being a Councilor, if such Councilor has constructed or constructs by himself, his spouse or his dependent, any illegal or unauthorised structure violating the provisions of this Act or the Maharashtra Regional and Town Planning Act, 1966 or the Rules or Byelaws framed under the said Acts; or, his directly or indirectly been responsible for, or helped in his capacity as such Councilor in, carrying out such illegal or unauthorised construction or has by written communication or physically obstructed or tried to obstruct, any Competent Authority from discharging its official duty in demolishing any illegal or unauthorised structure. Such disqualification shall be for the remainder of his term as a Councilor from the date of the declaration of such structure to be illegal or unauthorised by the concerned authority under the provisions of the said Acts or, as the case may be, from the date of commission of the act of interference or obstruction by the Councilor against the Compete