The power to determine disqualification of councillors under the Maharashtra Municipal Corporation Act lies with the Judge under Section 12, and the disqualification should only take effect after the Judge's final decision.

Anoop V. Mohta, J.

Rule, returnable forthwith. Heard finally by consent of parties.

2. Since the issues involved in all these matters are common, the same are heard and therefore disposed of by this common judgment, accordingly.

3. The Petitioners have challenged separately, respective but similar order dated 3 November 2015, whereby they have been declared “deemed disqualified councillor” of Thane Municipal Corporation (The Corporation). The provisions of the Maharashtra Municipal Corporation Act, 1949 (for short, “MMC Act”) referring to Sections 10 (1D), 11, and 12 have been invoked.

4. Sections 10 (1D), 11 and 12 of the MMC Act read thus:

10 Disqualification for being a councillor,

(1) Subject to the provisions of Sections 13 and 404, a person shall be disqualified for being elected and for being a councillor, if such person …............

(1D) A Councillor shall be disqualified for being a Councillor, if such Councillor has constructed or constructs by himself, his spouse or is 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 has directly or indirectly been responsible for, a or helped in his capacity as such Councillor 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 Councillor 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 Councillor against the Competent Authority.

(emphasis added)

11. Disabilities from continuing as councillor

A councillor shall cease to hold office as such if at any time during his term of office he, -

a) becomes disqualified for being a councillor by reason of the provisions of Section 10;

(b) -------

(c) -------

(d) -------

12. Questions as to disqualification to be determined by the Judge.

(1) If any doubt or dispute arises whether a councillor has ceased to hold office as such under Section 11, such councillor or any other councillor may, and at the request of the Corporation, the Commissioner, shall refer the question to the Judge.

(2) On a reference being made to the Judge under subsection (1), such councillor, shall not be deemed to be disqualified until the Judge after holding an inquiry in the manner provided by or under this Act determines that he has ceased to hold office.

5. It is stated in first Writ Petition No. 11070/2015 that the Petitioner got elected on 6.3.2012 from Ward No.65A of the Corporation. On 11.09.2014, disputed the position of alleged disqualification of the Petitioner as show cause notice was issued by the Corporation. The Commissioner passed the order and put the subject of alleged disqualification of the Petitioner before the General Body for referring it to the Judge under Section 12 MMC Act. The Commissioner held that the Petitioner has carried out unauthorized construction. On 22.12.2014, Vide Resolution No. 182, the General Body of Corporation refused to refer the subject of alleged disqualification to the Judge. On 31.10.2015, the Deputy Commissioner issued a notice for hearing of the proceedings under Section 10 (1D) of MMC Act. On 3.11.2015, the Commissioner passed the impugned order and disqualified the Petitioner as a councillor for his remaining tenure w.e.f 3.11.2015. The impugned order records at one hand that the alleged construction is prior to 01.04.2010 and the other hand records that alleged construction has been carried out during the tenure as a councillor.

6. It is stated in second Writ Petition No. 11072 of 2015 that the Petitioner got elected from Ward N