The court emphasized the necessity of specific findings, procedural compliance, and authority for passing orders under the Municipal Corporation Act.

ANOOP V. MOHTA, J.

As the regular Bench could not take this matter and in view of urgency expressed, circulated before this Bench. Heard finally, by consent of the parties.

2. Rule. Rule is made returnable forthwith.

3. Though this Writ Petition was served upon Respondent Nos. 4 and 5, none appeared for them. Affidavit of service to that effect is filed by the Petitioner. The same is taken on record. All other main contesting parties are heard.

4. The Petitioner, who is elected as Councillor from Ward No. 42 of Kalyan Dombivali Municipal Corporation in October/November 2015, has filed the present Writ Petition thereby, challenged the order passed by the Commissioner, Kalyan Dombivali Municipal Corporation-Respondent No.1 dated 23 March 2006, which reads as under:

ORDER

1) Shri. Mallesh Shivan Shetty, has incurred disqualification as the councillor from Ward No. 42 of Kalyan Dombivli Municipal Corporation u/s. 10(1D) of the Maharashtra Municipal Corporation Act.

2) The representation of Shri. Narendra Krushnanath Gupte is finally disposed off in above terms.

3) Copy of this order be given to Shri. Mallesh Shivan Shetty, Shri. Narendra Krushnanath Gupte and The Municipal Secretary, Kalyan Dombivli Municipal Corporation.”

5. Admittedly, the Petitioner got elected in Ward No.68 of Kalyan Dombivali Municipal Corporation for the year 2010-2015. Based upon a complaint against the Petitioner that he has carried out an unauthorized construction and is required to be disqualified as the Councillor, the proceedings in question had been initiated. Prior to this, during his earlier tenure, a show cause notice was issued under the Maharashtra Municipal Corporation Act, (For short, “MMC Act”) thereby, calling upon the Petitioner to give reply as to why the alleged illegal construction described in the notice, should not be demolished.

The Petitioner resisted the show cause notice by filing reply. Ultimately, on 4 March 2014, the Corporation has passed an order holding that the alleged construction carried out by the Petitioner is illegal.

6. Respondent No.1, thereafter, issued another show cause notice seeking explanation as to why he should not be disqualified as a Councillor for his remaining period as per the provisions of Section 10(1D) of the MMC Act. The statement is made that no further steps were taken by the Respondents, except the show cause notice. The Suit was filed by the Petitioner challenging order dated 4 March 2014, in the Court of Civil Judge, Junior Division, Kalyan. The Suit is pending. There was no declaration and/or order passed of disqualifying the Petitioner in his tenure which ended on 11 November 2015.

7. A fresh election was declared and the Petitioner has participated in the election by filing nomination on 25 October 2015. The Petitioner got elected on 2 November 2015, for the term 2015-2020. As noted above, though show cause notice was issued, no further steps were taken against the Petitioner of disqualification, during the earlier tenure. However, Respondent No.3 made a complaint to Respondent No.1 pertaining to the same unauthorized construction by the Petitioner, with prayer to declare that the Petitioner has incurred disqualification and Respondent No.1 to pass formal order accordingly, which is impugned in the present Petition.

8. The learned Senior Counsel appearing for the Petitioner, has cited following Judgments and orders in support of his submission to set aside the impugned order, being bad in law and unsustainable.

a) Madhukar Devram Patil Vs. State of Maharashtra, AIR 2004 Bom 473 = 2004(6) BCR 659

b) Sajida Nihal Ahmed, Malegaon Vs. Malegaon Municipal Corporation, AIR 2005 Bom 81 = 2005(1) BCR 142

c) Surjitsing J. Girniwale & Ors. Vs. Commissioner, Nanded Waghala Municipal Corporation & Anr., 2007(2) Bom. C.R. 617

d) Martin Moresh Vs. State of Maharashtra, 2001(4) BCR 635 = 2001 (4) MhLJ 643

e) Noorjahan M. Aslamansani Vs. State of Maharashtra, 2004(2) BCR 468 = 2004 (3) MhLJ 435

f) Vithal Son of Nityanan