The main legal point established in the judgment is that an alternate and efficacious remedy available in the form of a reference under Section 13(4) read with Section 405 of the Act renders a challenge to disqualification under Section 13(3) not maintainable.

JUDGMENT :

1. Heard.

2. Rule. The Rule is made returnable forthwith. Mr. D.R. Kale, learned Government Pleader and Mr. V.D. Hon, learned Senior Advocate waive service for respondent Nos.1 and 2 respectively. With the consent of both the sides, the matter is heard finally at the stage of admission.

3. By this petition under Article 227 of the Constitution of India, the petitioner is impugning the order dated 27.02.2020, passed under Section 13 (3) of the Maharashtra Municipal Corporations Act, 1949 (hereinafter referred to as “the Act”), whereby he has been removed from the post of a councillor, on a recommendation made by respondent No.2 Corporation for alleged misconduct as contemplated under Section 13 (1)(a) of the Act.

4. At the outset, it is necessary to mention that since the matter is being heard finally at the stage of admission, the learned Advocates of both the sides have made comprehensive arguments touching all the aspects, factual as well as legal. However, since a preliminary objection was raised on behalf of the respondents regarding maintainability of the petition in view of the remedy of reference available under Section 13(4) read with Section 405 of the Act and since, for the reasons to follow, I have come to the conclusion that the petition is not maintainable in view of availability of such an alternate and efficacious remedy, I will not be indulging into any other aspect touching the disputed facts and law.

5. Mr. D.R. Kale, the learned Government Pleader for respondent No.1/State and Mr. V.D. Hon, learned Senior Advocate for respondent No.2 submit that since the petitioner is seeking to dispute his disqualification by the State Government on a recommendation of respondent No.2 Corporation, as contemplated under sub-section (3) of Section 13 of the Act, he should have raised such a dispute by making a reference to the Judge as contemplated under sub-section (4) of Section 13. They would also point out that Section 405 of the Act also lays down the matters in which a reference is to be made to the Judge, which inter alia includes the orders passed under Section 13 regarding removal and disqualification. They would, therefore, submit that since such an alternate and efficacious remedy is available to the petitioner to dispute his disqualification recommended by respondent No.2 Corporation and accepted by the State Government by the impugned order, the Writ Petition is not maintainable.

6. Per contra, Mr. P.R. Katneshwarkar, learned Advocate for the petitioner would submit that the stage for invoking the remedy of making a reference to the Judge under Section 13(4) of the Act is already over. On a recommendation by respondent No.2 Corporation, the State Government has already disqualified the petitioner. The reference contemplated under this provision is not in the nature of an appeal against the order of the State Government passed under Section 13(3) and the remedy of a reference cannot be said to be an alternate and efficacious remedy available to the petitioner to challenge his disqualification.

7. It is necessary to reproduce the relevant provisions of the Act:

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 –

[(ai) to 2(a) to (d) …..

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) to (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 sub-section (1), such councillor shall not be deemed to be disqualified until the Judge after holding an inquiry in the man