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2021 Supreme(Bom) 39
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Z.A. HAQ, V.M. DESHPANDE, AMIT B. BORKAR, JJ.
Mrs. Tilottama W/o. Sanjay Kinkhede & Ors. - Petitioners
Versus
The Municipal Commissioner, Nagpur Municipal Corporation & Ors. - Respondents
Writ Petition No. 5075 of 2019 with Writ Petition No. 6236 of 2019
Decided On : 23-03-2021
For the Petitioner:Shri Amit Kinkhede, Advocate.
For the Respondents:Shri J.B. Kasat, Shri M.G. Bhangde, Sr. Advocate a/b. Shri B.N. Mohta, Ms. Ketki Joshi, G.P., Shri S.P. Bhandarkar, Adv. a/w., Ms Sejal Lakhani, Adv.
Point of Law: Illegal/unauthorized construction is made by the Councillor, his spouse or his dependent before acquiring title over the property in question - elected Councillor cannot be subjected to the extreme penal action of disqualification
Headnote:
Maharashtra Municipal Corporations Act, 1949 - Section 10(1D) read with Section 12 Mumbai Municipal Corporation Act, 1888 - Section 18 - Illegal and unauthorized construction by Councilor – Disqualification in election – Reference to Civil Court - illegal/unauthorized construction is made by the Councillor, his spouse or his dependent before acquiring title over the property in question
Finding of the Court:
Elected Councillor cannot be subjected to the extreme penal action of disqualification for the illegal or unauthorized construction not undertaken by him, his spouse or his dependent – Municipal Commissioner cannot make reference to the Civil Judge Senior Division directly and on his own. remedy would be available to the ‘aggrieved person’ having right to avail remedy as per Section 12 or Section 16 of the Maharashtra Act No.LIX of 1949, and as per the Doctrine of Election of Remedies, it would be the choice of the ‘aggrieved person’ to elect the remedy –
Result: Matter placed before Division bench
Certainly. Based on the provided legal document, here are the key legal points:
- Disqualification Due to Illegal or Unauthorized Construction:
- An elected Councillor cannot be subjected to disqualification solely based on illegal or unauthorized construction unless it is undertaken by the Councillor himself, his spouse, or his dependent (!) (!) .
- The disqualification encompasses illegal or unauthorized construction made prior to or after the election, provided it is by the Councillor, his spouse, or his dependent (!) (!) .
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Construction made by any other person, even if on behalf of the Councillor, does not attract disqualification under the relevant provisions (!) .
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Scope of "Has Constructed" in Disqualification:
- The phrase "has constructed" includes illegal or unauthorized construction made before the Councillor's election, indicating that such prior activity can lead to disqualification (!) (!) .
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The activity of illegal construction by the Councillor, his spouse, or his dependent, regardless of whether it was before or after acquiring the property, falls within the scope of disqualification (!) .
-
Procedure for Reference to Civil Judge:
- The reference to the Civil Judge Senior Division under the relevant law must be made by the Municipal Commissioner only upon request from the general body of the Municipal Corporation; the Commissioner cannot act on his own initiative (!) (!) .
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The law does not confer inherent power on the Municipal Commissioner to directly refer matters to the Civil Judge without such a request (!) (!) .
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Remedies and Disqualification:
- The law provides alternative remedies for challenging disqualification—either through an election petition or a reference to the Civil Judge—depending on whether the disqualification is pre-existing or incurred during the term (!) .
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The choice of remedy lies with the aggrieved person, and both remedies are available, with no restriction that one is only for pre-existing disqualifications and the other only for post-election disqualifications (!) .
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Interpretation of the Law:
- The language of the law should be given its natural meaning, and the object of the law is to prevent illegal or unauthorized construction by Councillors, including activities prior to their election (!) (!) .
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The law should be interpreted in a manner that furthers its purpose, avoiding narrow or overly restrictive readings that would defeat its intent (!) .
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Additional Points:
- The disqualification applies regardless of who undertook the illegal construction, emphasizing the activity of the Councillor, his spouse, or his dependent, rather than the acquisition of property or timing of construction (!) (!) .
- The remedies and procedures are designed to ensure timely action against illegal activities, and the law’s provisions should be read in harmony with constitutional principles ensuring access to justice (!) .
These points collectively clarify the legal framework surrounding disqualification due to illegal or unauthorized construction, the procedural requirements for references to judicial authorities, and the scope of remedies available to affected parties.
JUDGMENT :
Z.A. Haq, J.
1. Heard.
2. The results of the elections to the Nagpur Municipal Corporation were declared on 23rd February 2017. Mrs. Tilottama Sanjay Kinkhede (Petitioner in Writ Petition No.5075 of 2019) and Mrs. Pragati Ajay Patil (Respondent No.2 in Writ Petition No.5075 of 2019) had contested elections from Prabhag 14-D. Mrs. Pragati Ajay Patil was declared elected. On 3rd May 2017, Mrs. Tilottama submitted representation under Section 10(1D) read with Section 12 of the Maharashtra Municipal Corporations Act, 1949 (hereinafter referred to as “the Maharashtra Act No.LIX of 1949”) to the Municipal Commissioner contending that Mrs. Pragati and her husband Shri. Ajay Patil had carried out illegal and unauthorized construction at Flat bearing No.3/4, Forest Housing Society, Behind Center Point School, Nagpur, that Mrs. Pragati and her husband had encroached over 1250 sq.ft. out of the property bearing Survey No.56/1, situated at Telangkhedi, Nagpur, as also encroachment and illegal/unauthorized construction was made by Mrs. Pragati and her husband in the flat situated in Gulmohar Apartments, Tilak Nagar, Nagpur and at the property situated at Survey No.70(1-B) at Tilak Nagar, Nagpur. Mrs. Tilottama prayed that inquiry regarding encroachment/illegal and unauthorized construction by Mrs. Pragati and her husband should be made and it be declared that the structures in question are illegal and unauthorized and a report be forwarded to the Civil Judge Senior Division, Nagpur as per the provisions of Section 12 of the Maharashtra Act No.LIX of 1949. The Municipal Commissioner caused an inquiry in the matter and passed an order on 2nd July 2019, prima-facie observing that some illegal/ unauthorized construction exists in the properties of Mrs. Pragati. The Municipal Commissioner referred the matter to the general body of the Municipal Corporation for appropriate decision regarding referring the matter to Civil Judge Senior Division, as per Section 12 of the Maharashtra Act No.LIX of 1949.
Being aggrieved by the reference of the matter to the general body of the Municipal Corporation, Mrs. Tilottama has filed Writ Petition No. 5075 of 2019 praying that the Municipal Commissioner be directed to refer the matter to the Civil Judge Senior Division directly, as per Section 12 of the Maharashtra Act No.LIX of 1949. According to Mrs. Tilottama, as per Section 12 of the Maharashtra Act No.LIX of 1949, the Municipal Commissioner is not required to refer the matter to the general body of the Municipal Corporation, and he has to directly refer the matter to Civil Judge Senior Division.
Being aggrieved by the prima-facie observations made by the Municipal Commissioner in the order dated 2nd July 2019 about the illegal/ unauthorized construction, Mrs. Pragati has filed Writ Petition No. 6236 of 2019 praying that the order passed by the Municipal Commissioner on 2nd July 2019 be quashed. According to Mrs. Pragati, the Municipal Commissioner could not have examined the merits of the contentions raised by Mrs. Tilottama, and on receiving the representation, the Municipal Commissioner should have referred it to the general body of the Municipal Corporation and if at all any inquiry was to be made on the representation, it could have been only by the general body of the Municipal Corporation.
3. When both the writ petitions were heard by Division Bench (Shri. Sunil B. Shukre and Shri. Avinash G. Gharote, JJ.), the Division Bench opined that there appears to be conflict between the view taken in the judgment given in the case of Edwin Francis Britto vs. Municipal Corporation, Greater Mumbai, reported in (2006) SCC Online 791= 2006 (6) Bom.C.R. 92) and the view taken in the judgment given in the case of Mallesh Shivan Shetty vs. Kalyan-Dombivali Municipal Corporation, reported in 2016 (3) Mh.L.J. 901. The Division Bench, by order dated 4th January 2021, formulated 3 questions/points for reference to Larger Bench and directed the Registry to place th
