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Cites 5 docs
The Industrial Disputes Act, 1947
Section 16 in The Industrial Disputes Act, 1947
Edwin Francis Britto vs Municipal Corporation Of Greater ... on 9 August, 2006
The Indian Electricity Act, 1910
Greater Bombay Co-Op. Bank Ltd vs M/S United Yarn Tex. Pvt. Ltd. & Ors on 4 April, 2007

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Bombay High Court
Jagdishchandra vs The District Collector on 14 January, 2009
Bench: S.R. Dongaonkar
                               1

     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                NAGPUR BENCH, NAGPUR




                                                                   
              WRIT PETITION NO. 5212/2008




                                           
      Jagdishchandra S/o Narayanrao Karemore,
      aged about 55 years, Occupation : Social Work,
      R/o. Bose Nagar, Tumsar, Tahsil Tumsar,




                                          
      District Bhandara                      ...Petitioner.

                            ...versus...




                                  
      1. The District Collector, Bhandara,
                     
      2. Omprakash Donuji Lanjewar,
         aged adult, R/o. Shriram Nagar,
                    
         Tumsar, Tahsil Tumsar,
         Distt. Bhandara,
        


      3. Purushottam Tulshiram Badwaik,
         aged adult, R/o. Vivekanand Nagar,
     



         Tumsar, Tahsil Tumsar,
         Distt. Bhandara                   ...Respondents





    ===============================================
         Shri S.V.Bhutada, Adv. for the petitioner ,
         Smt. R.A.Wasnik, A.G.P. For Respondent No.1
         Shri Shashikant Borkar, Adv. for R-2 & 3.





    ===============================================

                CORAM : S.R.DONGAONKAR, J.

DATE : 14th JANUARY, 2009 ::: Downloaded on - 09/06/2013 14:14:35 ::: 2 ORAL JUDGMENT

1. Heard.

Rule.

Rule made returnable forthwith. Heard finally with the consent of the parties.

2. By this petition under Articles 226 & 227 of the Constitution of India, the petitioner is challenging the order passed by the Collector, Bhandara, in Case No. 1/2008 of Mouza-Tumsar, in a complaint preferred by Respondent Nos. 2 & 3 under Section 44(e) of the Maharashtra Municipal Council, Nagpur Panchayat & Industrial Township Act, 1965, claiming that the petitioner is disqualified from holding a post of Councillor as he has made some unauthorized construction and thereby incurred disqualification.

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3. The order dated 9.5.2008 passed by the Collector, Bhandara is thus;

"9.5.2008 Parties present. Applicant in this case Shri Omprakash Lanjewar and Shri Purushottam Badwaik, both resident of Tumsar, jointly filed application against non-applicant Jagidshchandra Karemore, Councillor, M.C., Tumsar, for disqualification for alleged illegal construction in Municipal council area, whereon non- applicant filed preliminary objections on the application with challenge of tenability on the ground that was not made during his ensuing term i.e. 2007 to 2012, therefore, not liable for such any disqualification since the provisions of Section 44(e) of the Maharashtra Nagar Panchayat, Nagar Parishad and Urban Industrial Act, 1965, does not attract. I head both the parties through their learned counsels. I have also gone through the documents referred and relied by them. The non-applicant has not denied as to construction of structure. As to the illegality, it needs detailed scrutiny of the facts, which in due course of time would be seen. As of now, it is admitted fact that non applicant made construction which is alleged to be illegal and if it is so proved, he is to face the further consequences. The main ground on which the non-applicant has challenged tenability of the application is that the alleged construction has not been made during the present regime does not suit fit in the eye of the provisions of Section 44(e) of the Act as it has already been made clear vide order of Bombay High Court 2006 (6) AIR Bom. R.382, D.K.Deshmukh, Judge, in W.P., No. 1737 of 2004, dated 9.8.2008. As such application non-applicant's disqualifi-cation proved by the applicant is held tenable. Parties to take note. Put up on the next date for filing documents and recording evidence. C/F 6.6.2008.
Sd/-
Collector, Bhandara"
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It appears that the Collector has relied on the judgment of this Court in 2006 (6) AIR Bombay Reports 382 (equivalent to 2006 (5) ALL MR 640 [Edwin Francis Britto vs. Municipal Corporation of Greater Mumbai & Ors]). It appears that the Collector has considered the observations of this Court in the said decision for coming to the conclusion that the complaint of the respondents is tenable. This order was passed by the Collector on the petitioner's application claiming that the complaint is not tenable in view of the provisions of Section 44(e) of Maharashtra Municipal Council, Nagpur Panchayat & Industrial Township Act, 1965 (hereinafter referred to as Act), inasmuch as this alleged illegal construction was not done by him at any time during his term of the office i.e. When he was holding the office of the ::: Downloaded on - 09/06/2013 14:14:36 ::: 5 Councillor. The petitioner challenges this order.

4. Learned counsel for the petitioner has submitted that in view of the provisions of Section 44 of the Act for attracting Clause (e), the "construction"

referred in Clause (e) has to be alleged to have been done during the term of his office i.e. When he is holding the office of Councillor. According to him, the observations of this Court in 2006 (5) ALL MR 640 (supra), are not attracted. According to him, the very word, "if at any time during his term of office, he"

under Section 44 of the Act indicate that such construction as referred in Clause (e) has to be during the term of his office and therefore, the order of the Collector, holding that the complaint is tenable is incorrect. He, therefore, submitted that the Collector should have upheld the objection of the petitioner and dismissed the complaint/application preferred by ::: Downloaded on - 09/06/2013 14:14:36 ::: 6 Respondent Nos. 2 & 3.

5. Per contra, learned counsel for Respondent Nos. 2 & 3 has taken me through the observations of this Court in para 10 of the judgment in Edwin's case (supra). According to him, the observations of this Court are very clear and the Councillor has to be treated as disqualified if he has constructed or constructs by himself, his spouse or his dependent, any illegal or unauthorized structure. According to him, these observations would clearly show that the unauthorized structure raised by a Councillor could be done by him even prior to his resuming the post of a Councillor. According to him, the order passed by the Collector is correct. He has further submitted that the contents of the application/complaint preferred by respondent no.2 & 3 would also show that they have raised additional ground of unauthorized construction ::: Downloaded on - 09/06/2013 14:14:36 ::: 7 being done even during the term as Councillor by the petitioner and as such their complaint/ application would be tenable.

6. Learned Assistant Government Pleader for respondent No.1 has supported the order passed the Collector.

7. In order to appreciate the contentions of the learned counsel, one has to see the observations of this Court in Edwin's case (supra). The relevant Para 10 is extracted below.

"10. Now, it is necessary, therefore, to consider the provisions of Section 16(1D) of the Act. It reads as under"-
'16(1D) A Councillor shall be disqualified for being a Councillor, if such Councillor has constructed or constructs by himself, his spouse or his dependent, any illegal or unauthorized 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; and has directly or indirectly ::: Downloaded on - 09/06/2013 14:14:36 ::: 8 been responsible for, or helped in his capacity as such Councillor, in carrying out such illegal or unauthorized construction or has by written communication or physically, obstructed or tried to obstruct any Competent Authority from discharging his official duty in demolishing any illegal or unauthorised structure. Such disqualification shall be for the remainder of his term as a Councillor from the date of the declaration of such structure to be illegal or unauthorized by the concerned authority under the provisions of the said Act or, as the case may be, from the date of commission of the act of interference or obstruction by the Councillor against the Competent Authority".
Perusal of the above quoted provisions shows that if a Councillor has erected an unauthorised structure, then he cannot be a Councillor. It is submitted that, if an unmauthorised structure is erected by a Councillor after his election, then only the provision disqualifies him to be a Councillor. If this construction is accepted, the words "has constructed" become meaningless. Use of the phrase "has constructed" signifies that the intention of the legislature was to disqualify from holding the office of Councillor such person who has erected unauthorised structure in the past when he was not a Councillor. The intention appears to be to avoid likelihood of conflict between duty and interest. The person who has erected unauthorised structure before his election as Councillor would not be interested in removal of unauthorised structures and therefore, the view of the legislature appears to be to discourage election of persons who are responsible for raising unauthorised structures. Perusal of the provisions of Section 16 (1D) further shows that when the legislature wanted the capacity as a ::: Downloaded on - 09/06/2013 14:14:36 ::: 9 Councillor to be relevant the legislative provision has clearly indicated that. Insofar as the structure which is not erected by the person himself, but in relation to which he has merely helped, that help should be in his capacity as a Councillor. So far as raising of structure is concerned, the raising of unauthorised structure by him or his family need not be after his election. Even if an illegal structure is raised by the person before his election, on being found that he was responsible for raising the unauthorized structure, he can be disqualified from being a Councillor. I have perused the provisions of Section 16(1B) and 16(1C). They were added by the same Act of the State Legislature which added Section 16 (1D) and they all relate to disqualification of a Councillor, but those provisions are of different nature and are not relevant for construing the provisions of Section 16(1D). In my opinion, therefore, the disqualification under the provisions of Section 16(1D) will operate even if the Councillor had erected unauthorized structure even before his election as a Councillor. In enacting the provisions of Section 16(1D) of the Act, the intention of legislature was to enable the Corporation to effectively tackle the growing menace of illegal construction. One of the mandatory duties of the Corporation as local body and as a planning authority is to prevent erection of unauthorised structure and to demolish unauthorized structures.

If a person who himself has erected an unauthorised structure is elected a Councillor, there is likelihood of there being conflict between duty of such a person as a Councillor and his interest in retaining the unauthorized structure. Therefore, the legislature in order to prevent such a person being elected as a Councillor has used the words "has constructed" in Section 16(1D) of the Act. It is pertinent to note here that in the Reply affidavit filed by the Respondent no.3, there is no challenge raised to the Constitutional validity of the provisions. Therefore, ::: Downloaded on - 09/06/2013 14:14:36 ::: 10 there is no question of this Court making an attempt to read down the provisions. The provision will have to be given its full meaning. If that is done, a person who has erected any unauthorized structure at any time is disqualified to be a Councillor. As observed above, as a result of the order of the Division Bench, it is an established fact that the Respondent No. 3 has erected an unauthorised structure."

8. At this juncture, it is necessary to see the provisions of Section 44 of the Act, which read thus -

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) ..........
(b) ..........
(c )..........
(d) .........
(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 unauthorized 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.
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and he shall be disable subject to the provisions of sub-section (3) from continuing to be a Councillor and his office shall become vacant;"

9. It is evident that the words "if at any time during his term of office" are not appearing in the provisions of Section 16(1D) of The Mumbai Municipal Corporation Act. The relevant provisions have been quoted in the decision of this Court, referred above.

However, at the cost of repetition, part thereof are again quoted with emphasis.

"16 (1D) A Councillor shall be disqualified for being a Councillor, if such Councillor has constructed or constructs by himself, his spouse or his dependent, any illegal or unauthorized 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 unauthorized 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. Such disqualification shall be for the remainder of his term as a Councillor from the date of the declaration of such structure to be illegal or unauthorized by the concerned authority under the provisions of the said Acts or, as the case may be, from the date of ::: Downloaded on - 09/06/2013 14:14:36 ::: 12 commission of the act of interference or obstruction by the Councillor against the Competent Authority".

It is thus apparent, the words referred above i.e. "at any time during his term of office" found in Section 44 of the Act are not there in Section 16 (1D) of the Mumbai Municipal Corporation Act. The intention of the legislature in enacting Section 44 as it is appearing in the Act can be discovered by the words which are extracted above. It is well settled that language of the statute is to be properly understood. The elementary rule of interpretation of the statute is that the words used in the section must be given their plane grammatical meaning. It is held so by the Apex Court in AIR 2007 SC 1584 [Greater Bombay Co-operative Bank Ltd. vs. M/s. United Yarn Tex. Pvt. Ltd & ors], as such, when the words are clear, the provisions of the Act i.e. Section 44 will have to be interpreted in the manner as stated above.

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10. It is impossible to say that Section 44 in reference to Clause (e) of sub-section (1) as referred above is any way inconsistent with the words "if at any time during his term of office" and they are referable only to Clauses (a), (b), (c ) and (d) and not to Clause (e). If one reads sub-section (1) with clause (e) together, it clearly conveys a meaning that the unauthorized construction referred in clause (e) has to be done by the Councillor during his term of office.

11. In my opinion, the view taken in 2006 (5) ALL MR 640 (supra) would not be applicable to the facts of the instant case in view of the distinguishing factor of the words "if at any time during his term of office", referred above, which appears specifically in Section 44 of the Act, which is relevant for the decision of this petition.

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12. In these circumstances, I find that the reliance placed by the Collector for coming to the conclusion that the application/complaint of the respondents was tenable, was misplaced as the application/complaint of Respondent Nos. 2 & 3 was under Section 44 of the Act.

13. Ordinarily, in this view of the matter, it would have resulted in the dismissal of the application/complaint of Respondent Nos. 2 & 3.

However, it has been specifically pointed out by the learned counsel for Respondent Nos. 2 & 3 that the respondents have also alleged that some part of the alleged unauthorized construction was made by the petitioner during the term of his office and he had continued to do such construction as mentioned in the complaint/application in violation of Sections 79 & 80 ::: Downloaded on - 09/06/2013 14:14:36 ::: 15 of the Electricity Act and for some other reasons; the application/complaint of the Respondent Nos. 2 & 3 would be tenable for consideration and decision by the Collector. Considering this aspect, the application/complaint of the respondent Nos. 2 & 3 cannot be said to be untenable and liable to be dismissed as a consequence of allowing this petition.

14. In these circumstances, the order passed by the Collector, Bhandara, impugned in this petition, though appears to be not correct, for the reasons indicated above, the complaint/application of the respondents is required to be decided by him on merits for the other grounds which are raised in his application. Thus, this petition be treated as partly allowed. The Collector, Bhandara, is directed to decide the said application as early as possible, preferably within a period of six weeks from the receipt of the ::: Downloaded on - 09/06/2013 14:14:36 ::: 16 copy of this order by him.

Rule made absolute in above terms. No order as to costs.

JUDGE Rvjalit ::: Downloaded on - 09/06/2013 14:14:36 :::