Writ Petition No.10037 of 2010,Writ Petition No.10038 of 2010

24th January, 2011

Petitioner Counsel: Mr. AMIT BORKAR
Respondent Counsel: Mr. A. A. KUMBHAKONI,S. S. SHAH,Ms. P. S. CARDOZO

Cases Cited:
Kihota Hollohon Vs. Mr. Zachilhu, AIR 1993 SC 412 [Para 7,10]
Cellular Operators Association of India Vs. Union of India, (2003)3 SCC 186 [Para 7]
Carona Ltd. Vs. Parvathy Swaminathan & Sons, 2008 ALL SCR 643=(2007)8 SCC 559 [Para 7]
Shri. Vasant Appaso Mali Vs. The Collector, Kolhapur, WP No.5121/2009 dt.26/6/2009 [Para 7]
Sunita Vilasrao Salunkhe Vs. State of Maharashtra, 2005(4) ALL MR 970=2006(3) MLJ 227 [Para 7]
Ramesh Chandra Sankla Vs. Vikram Cement, JT 2008(8) SC 1 [Para 8]

JUDGMENT

JUDGMENT:- Both these Writ Petitions can be disposed off by a common order since the Petitioners are challenging the common order dated 7/12/2010 passed by the Collector in Case No.983 of 2010 and Case No.984 of 2010.

2. Petitioner No.1 is an elected Councilor of Respondent No.2 Council and Petitioner No.2 is the President of Respondent No.2 Council.

3. Brief facts are as under:-

4. A complaint was filed by Respondent No.1 under section 16(1)(i) and 44(1)(b) of the Maharashtra (Municipal Councils), (Nagar Panchayats) and Industrial Township Act, 1965 (hereinafter referred to as "the said Act") with Respondent No.3 who has the authority and power to pass the order of disqualification under section 44 of the said Act.

5. Respondent No.1 filed the complaint on 03/07/2009, alleging that Petitioners had become disqualified to continue as Councilors in view of the aforesaid provisions. It was alleged that so far as Petitioner No.1 is concerned, he has accepted the tender of his brother and Petitioner No.2 being the wife of Petitioner No.1, thereby accepted the tender of her brother-in-law and, as a result, accepted the amount of bill drawn by Respondent No.2. Petitioners on being served with the copy of the disqualification petition filed preliminary objections in which it was alleged, firstly, that after filing of the Petition on 23/11/2009, Petitioner No.2 was elected as President of Respondent No.2 Council and, therefore, provisions of the said Act were not applicable and the Respondent No.3, therefore, had no authority to pass the order of disqualification as against Petitioner No.2. Secondly, it was alleged that Respondent No.1 was not the voter of the constituency from which Petitioners were elected and, therefore, he had no locus to file disqualification petition. Respondent No.3 rejected the preliminary objections filed by the Petitioners by passing the impugned order.

6. The learned Counsel appearing on behalf of Respondent No.1 submitted that he has no objection if the impugned order is set aside and Collector is directed to decide all issues including the issue of preliminary objections raised by the Petitioners finally within a time bound period.

7. Mr. Borkar, the learned Counsel appearing on behalf of the Petitioners submitted that, by the impugned order, the Collector had decided only two objections out of six objections which were raised by the Petitioners and the other four objections were rejected in the operative part of the order without giving any reasons. It is submitted that the objections raised by the Petitioners were as under:-

(i) Since the Petitioner No.2 has been elected as President of Municipal Council during pendency of disqualification proceedings only State Government has authority to remove the Petitioner No.2.

(ii) Since the Petitioner No.1 is not concerned with the construction of the Society, the said objection is without any substance.

(iii) Petitioner No.2 during her tenure as a Councilor has never made any unauthorized construction.

(iv) The cause of action, nature of evidence against Petitioner No.1 and Petitioner No.2 are different and, therefore, joint disqualification petition is not maintainable.

(v) There are no allegations in the disqualification Petition about the unauthorized construction.

(vi) Respondent No.1 is not the voter of the constituency of the Petitioners and hence at his instance Petition is not maintainable.

The learned Counsel appearing on behalf of the Petitioners firstly submitted that the Collector while exercising his power under section 44 of the said Act was duty bound to decide the preliminary objections since the power which was exercised by him under the said provisions was judicial power and the said authority, therefore, could be treated as Tribunal. Reliance was placed on the judgment of the Apex Court in Kihota Hollohon Vs. Mr. Zachilhu, AIR 1993 SC 412. Secondly, it is submitted that since the proceedings before the Collector were being decided by him as Tribunal, in view of the judgment of the Apex Court in Cellular Operators Association of India and others Vs. Union of India and Others, (2003)3 SCC 186 Tribunal was entitled to regulate its own procedure in the absence of any procedure laid down in the Code of Civil Procedure. Thirdly, it is submitted that the objection Nos. (i), (iv) and (vi) were relating to maintainability of proceedings and about jurisdictional fact and, therefore, in view of the judgment of the Apex Court in Carona Ltd. Vs. Parvathy Swaminathan & Sons, (2007)8 SCC 559 : [2008 ALL SCR 643] [paras 26 to 28], it was the duty of the Tribunal to first consider the existence of jurisdictional fact before assuming jurisdiction to entertain the petition for disqualification. It is submitted that as a result of the impugned order, petitioners were forced to defend the disqualification proceedings on merits though they were not maintainable. Reliance was also placed on the judgment of the learned Single Judge of this Court (Coram: Smt Nishita Mhatre, J.) in Shri. Vasant Appaso Mali Vs. The Collector, Kolhapur & Ors. Order dated 26/6/2009 in WP No.5121 of 2009 in respect of the petition arising out of the proceedings under section 44(1)(e) wherein it was held by the learned Single Judge that the word "opportunity" includes right of cross-examination of witnesses and leading of evidence before the Collector. It is submitted that the said judgment was affirmed in L.P.A. No.148 of 2009. It is, therefore, submitted that the scope of inquiry before the Collector was held to be a full-fledged inquiry and, therefore, principles analogous to the procedure provided by the Civil Procedure Code were applicable to such inquiry. It is then submitted that since the Petitioner No.2 was elected as a President in the meantime during pendency of disqualification proceedings, the power to remove the President was available only with the State Government under section 55-A of the said Act and, therefore, the Collector did not have power to adjudicate the disqualification proceedings in relation to the President of Municipal Council. Reliance was placed on the judgment of this Court in Sunita Vilasrao Salunkhe Vs. State of Maharashtra and others, 2006(3) MLJ 227 : [2005(4) ALL MR 970]. It is, therefore, submitted that the Writ Petition may be allowed by directing the Collector to decide preliminary objections of the Petitioners afresh before considering the merits of the case.

8. On the other hand, the learned Counsel appearing on behalf of Respondent Nos.1 submitted that the Apex Court has now held that it is advisable to decide all issues together. Reliance is placed on the judgment of the Apex Court in Ramesh Chandra Sankla etc. Vs. Vikram Cement etc., JT 2008(8) SC 1 [para 61]. Reliance is also placed on other judgments of the Supreme Court.

9. I have heard both the Counsel at length. Before taking into consideration rival submissions, it will be necessary to examine the relevant provisions which empowers the Collector to decide the application for disqualification. Section 44 of the said Act reads as under:-

"44. Disqualification of Councillor during his term of office.- (1) A Councillor shall be disqualified to hold office as such, if at any time during his term of office, he-

(a) is or becomes subject to any of the disqualifications specified in Section 16 except the disqualification specified in clause (h) of sub-section (1) of that section; or

(b) as a Councillor or as a member of any committee of the Council votes in favour of any matters in which he has directly or indirectly by himself or his partner any such share or interest as is described in clauses (a), (b), (c) etc. and (g) of sub-section (3) of section 16, whatever may be the value of such share or interest or in which he is professionally interested on behalf of a client, principal or other person; or

(c) is professionally interested or engaged in any case for or against the Council; or

(d) absent himself during six successive months from the meetings of the Council, except with the leave of absence granted by the Council by a resolution on his written application for such leave; [or]

[(e) has constructed or construct by himself, his spouse or his 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 bye-laws framed under the said Acts; or has directly or indirectly been responsible for, 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:]

Provided that-

(i) a Councillor shall not be disqualified under clause (c) if he is engaged for the Council without receiving any remuneration therefor or appears and conducts his own case in a Court of law or before any authority under this Act against the Council irrespective of whether such a Councillor is a legal practitioner by profession or not;

(ii) for such purpose of clause (d) when the Councillor applies for leave, such leave shall be deemed to have been granted unless it is refused within a period of sixty days from the date of his application.

(2) When a Councillor whether elected or nominated incurs any of the disqualification in sub-section (1), it shall be the duty of the Chief Officer to submit a report to the Collector within one month of his becoming aware of disqualification through any source whatsoever.

(3) In every case the authority to decide whether a vacancy has arisen shall be the Collector. The Collector may give his decision on receipt of the report of the Chief Officer under sub-section (2), or on his own motion or on an application made to him by a voter and such decision shall be communicated to the Councillor concerned, the Chief Officer and the applicant, if any. Until the Collector decides that a vacancy has arisen and such decision is communicated as provided above, the Councillor shall not be deemed to have ceased to hold office.

(4) Any person aggrieved by the decision of the Collector may within a period of fifteen days from the date of receipt of the decision of the Collector by him, appeal to the State Government and the orders passed by the State Government shall be final:

Provided that, no order shall be passed under sub-section (3) by the Collector or under sub-section (4) by the State Government in appeal, against any Councillor without giving him a reasonable opportunity of being heard

Explanation:- If any elected or nominated Councillor were subject to any disqualification specified in Section 16, at the time of his election, [or nomination] and continues to be so disqualified, the disqualification shall, for the purposes of this section, be deemed to have been incurred during the term for which he is elected or nominated."

10. Perusal of the aforesaid section clearly reveals that by virtue of the provisions of sub-section (3), the Collector is authorized to decide whether vacancy has arisen as per the provisions laid down under section 44(a) to (e). Sub-section (4) of section 44 also clearly lays down that any person aggrieved by any decision of the Collector is entitled to file an appeal to the State Government and the orders passed by the State Government shall be final. On plain reading of the aforesaid provision, it can be seen that the power which is exercised by the Collector under the said provision is of quasi-judicial nature and in the case of either on receipt of the report of the Chief Officer, or on his own motion or on an application made to him by a voter, he can decide whether the Councilor has incurred disqualification as laid down in section 44(a) to (e). The submission made by the learned Counsel for the Petitioners that power exercised by the Collector is judicial power and, therefore, it partakes the character of Tribunal, in my view, cannot be accepted. The ratio of the judgment in Kihota Hollohon, AIR 1993 SC 412 (supra) on which reliance is placed by the learned Counsel for the Petitioners will not apply to the facts of the present case. The inquiry which is contemplated under section 44 to decide the disqualification of a Councilor in terms of clauses (a) to (e) of Section 44 is a summary inquiry and there cannot be any strait jacket formula regarding the manner in which the said inquiry is to be held by the Collector. It would not be possible to read into provisions of section 44 of the said Act; the provisions which are analogous to the Code of Civil Procedure. The submission made by the learned Counsel for the Petitioners that the Collector should first decide the preliminary objections regarding maintainability of the application and also regarding jurisdictional fact of maintainability initially and, thereafter, proceed to decide the case on merits, cannot be accepted. It has to be remembered that provisions of section 44 have been incorporated in order to ensure that the person who is elected as a Councilor cannot be permitted to continue as a Councilor if he has incurred disqualification and, at the same time, another important aspect is that the person who is duly elected as a Councilor on the support of majority of the voters in that particularly Constituency cannot be dragged into dispute regarding his disqualification which may be converted into trial by a disgruntled person. Either way, therefore, it is necessary that the said power which is exercised by the Collector is exercised in a judicial manner in summary proceedings.

11. In my view, situations which may arise before the Collector are numerous and it would not be possible to lay down the cases which will have to be decided by the Collector and, therefore, possibly the legislature has not laid down the procedure of holding the inquiry. The power vested in the Collector, therefore, has to be exercised in a judicious manner. The said order is an appealable order and any person aggrieved by the order can prefer an appeal to the State Government. The submission made by the learned Counsel appearing on behalf of the Petitioners that the preliminary inquiry should be held by the Collector to decide the preliminary objections as is contemplated under section 9-A of the Civil Procedure Code as applicable to the State of Maharashtra, cannot be accepted. It is always open in a given case that if the Collector so deems fit he may hold such an inquiry if he feels that, prima facie, the application is not maintainable. However, as a general rule, it cannot be laid down that in every such case where preliminary objection is raised, the Collector should first decide the preliminary objection and then hold an inquiry on merits.

12. So far as the second submission made by the learned Counsel for the Petitioners is concerned, in my view it may not be necessary to go into correctness or otherwise of the order passed by the Collector in view of the submission made by the learned Counsel appearing on behalf of Respondent Nos.1 and 2. Perusal of the order clearly indicates that though five objections were raised by the Petitioners the Collector had given reasons only in respect of two preliminary objections which were raised and no reasons had been given in respect of other objections which were raised by the Petitioners.

13. In my view, therefore, it would be appropriate if the impugned order is set aside and the Collector is directed to hold an inquiry of disqualification against the Petitioners herein and decide the objections which have been raised by the Petitioners regarding maintainability of the application as also application for disqualification filed by Respondent No.1. Since the term of the Petitioners is likely to come to an end in November, 2011, it would be appropriate if the Collector is directed to complete the inquiry on or before 30/4/2011. Order accordingly.

14. Both the Writ Petitions are disposed off in the aforesaid terms.

Ordered accordingly.