The main legal point established in the judgment is that the disqualifications prescribed under the Maharashtra Municipal Corporation Act apply to both elected and nominated councillors, and the disqualification for failing to lodge election expenses is applicable only to contesting candidates, not to nominated councillors who are not chosen through an election process.

ORDER :

1. The learned Single Judge of this Court in a case of Pradeep S/o Walchand Raka vs. Bhiwandi Nizampur Municipal Corporation in Writ Petition No. 2030 of 2015 (Principal seat at Bombay) under its judgment and order dated 13-7-2018 held that, the councillor who is nominated cannot incur the disqualification for having more than two children under the Act.

2. The said judgment was referred to in a case of Sonal Dilip Shinde vs. State of Maharashtra in Writ Petition No. 4065 of 2020 (at Aurangabad Bench). In the said case the petitioner was aggrieved by the order passed by the Additional Divisional Commissioner holding that the petitioner has incurred disqualification under section 10(1)(E) of the Maharashtra Municipal Corporation Act, 1949 (for the sake of brevity hereinafter referred as to the “Act 1949”) as she failed to submit the election expenses and as such stands disqualified. The learned Single Judge dealing with the said case was of the view that the nominated councillor also is subject to disqualifications as are applicable to an elected councillor. In the light of that, the learned Single Judge has referred the matter for consideration before the Division Bench. Accordingly the matter has been referred to us to adjudicate and answer the following issues:

(a) Would a nominated Councillor, as defined under section 2(11), incur a disqualification under section 10(1E) for having entered the election fray and having failed in submitting the accounts of election expenses and would such disqualification unseat a nominated Councillor?

(b) Is a nominated councillor exempted from any disqualification under the Maharashtra Municipal Corporation Act and cannot be unseated even if he incurs a disqualification for continuing as a councillor?

3. Mr. Bagul, the learned counsel for the petitioner submits that, a nominated councillor does not have to undergo the process of election, as such is not required to submit the account of election expenses. The petitioner had already withdrawn her candidature and had not contested the election as such cannot incur the disqualification under section 10(1E) of the Act, 1949. The learned counsel further submits that, the nominated councillor is so nominated on account of him possessing special knowledge or experience in municipal administration, save and except the said criteria no other criteria or disqualification is provided for a nominated councillor. The nominated councillor is not entitled to vote in any meeting, nor can be elected as a Mayor or Chairman of the Standing Committee. In view of the same, the disqualifications as are provided for a person to be elected as a councillor are not applicable for a nominated councillor. The disqualifications provided for a councillor to be elected under section 10 of the Act, 1949 would not apply to a nominated councillor. The learned advocate further submits that, it is the rule of interpretation that the words in a statute have to be given their literal meaning. The provisions are not ambiguous. The learned counsel places reliance on the judgment of the learned Single Judge of this Court in a case of Pradip S/o Walchand Raka vs. Bhiwandi Nizampur Municipal Corporation (supra). The disqualification provided under section 10 of the Act, 1949 is only for the elected councillor.

4. Mr. Kadethankar, the learned advocate for the State Election Commission, Mr. Yawalkar, the learned Additional Government Pleader for respondents/State, Mr. Desale and Mr. Sharma, the learned counsel for respective respondents submit that, the word councillor is defined under the Act, 1949. The definition of councillor includes elected and nominated councillor. Section 10 of the Act, 1949 provides that subject to the provisions of section 13, 17 and 404 of the Act, a person shall be disqualified for being elected and for being a councillor, if such person incurred disqualifications as are prescribed under section 10(1A) to 10(I) of the Act, 1949. In view of the definition o