SAMPADA YOGESH WAGHDHARE versus THE STATE OF MAHARASHTRA & ORS. on 22 April 2019

SAMPADA YOGESH WAGHDHARE

v.

THE STATE OF MAHARASHTRA & ORS.

(Civil Appeal No.4056 of 2019)

APRIL 22, 2019

[ASHOK BHUSHAN AND K.M. JOSEPH, JJ.]

Maharashtra Municipal Council Nagar Panchayat andIndustrial Township Act, 1965:

ss. 44(1)(e) – Disqualification under – For unauthorizedconstruction by the spouse of the Municipal Councillor/Presidentof the Council – Held: Disqualifying a Councillor i.e. ademocratically elected representative is a serious matter and thecase against such person must be strictly proved – However, s.44(1)(e) requires reasonable interpretation – If ingredients of theprovision are established it must be given full play – Illegaltemporary constructions/structures made by the Councillor, spouseor dependent would fall within the mischief of s. 44(1)(e) resultingin disqualification of the Councillor.

s. 44(1)(e) – Nature of – Held: Section 44(1)(e) creates anindependent liability – The provision is neither dependent on acriminal action preceding it, nor is the Court to be influenced bythe fact that making an unauthorized construction will have penalconsequences.

Dismissing the appeal, the Court

HELD:1.1 Section 44(1)(e) of Maharashtra MunicipalCouncil Nagar Panchayat and Industrial Township Act, 1965 fallsin three parts. The first limb of Section 44(1)(e) declares interalia that if a Councillor has constructed or constructs by himself[which would also include a construction by a lady Councillor], itwould invite the wrath of the provision and it suffices to disqualifythe Councillor. This is no doubt subject to construction beingillegal or unauthorized, that is, in violation of the provisions ofMaharashtra Municipal Council Act or Maharashtra Regional orTown Planning Act or the rules or bye-laws made under the said

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AAct. Further, in order to attract the first limb, it is sufficient if thespouse of the Councillor or the dependent carries out any illegalor unauthorized construction as aforesaid. In short, if theCouncillor, his spouse or dependent carries out any illegal orunauthorized construction as aforesaid, it suffices to incurdisqualification for the Councillor. The policy underlying SectionB44(1)(e) is to ensure that the highest level of probity is maintainedby the Councillor and nearest members of the Councillor’s family.It does not require the Councillor knowing the factof the construction being made by her spouse or dependent.[Paras 8 and 9][220-B-G]

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1.2 The second limb of Section 44(1)(e) provides that if aCouncillor had directly or indirectly been responsible for or helpedin his capacity as such Councillor in carrying out such illegal orunauthorized construction, the Councillor becomes amenable foraction under Section 44(1)(e). The second limb does not dealDwith the construction by the Councillor, spouse or dependent.But insofar as any such illegal or unauthorized construction iscarried out resulting in the Councillor being disqualified isconcerned, the direct or indirect involvement of the Councilloror his help in the matter has to be established. It has to beestablished that the Councillor has been directly or indirectlyEresponsible or helped in his capacity as such Councillor in carryingout of illegal or unauthorized construction. [Para 10][220-G-H;221-A-B]

1.3 The third limb of Section 44(1)(e) has the following effect:If a Councillor by a written communication obstructed or tried toFobstruct any competent authority from discharge of his officialduty in demolishing any illegal or unauthorized construction, theCouncillor would incur disqualification under Section 44(1)(e).The last limb would also be attracted if the Councillor hasphysically obstructed or tried to obstruct any competent authorityGfrom discharging its official duty in demolishing any illegal orunauthorized construction. [Para 10][221-B-D]

1.4 Thus the Legislature has apparently distinguishedbetween illegal or unauthorized construction, illegal orunauthorized structure being constructed by the Councillor’s

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spouse or by dependents as it was the legislative intention thatthe Councillor will not carry out any such construction and hewould also be in a position to prevent construction either by hisspouse or a person who is dependent on him. The fact thatembargo is against the construction by the dependent and notany relative or person not dependent on him would also indicatethat illegal construction by the spouse or dependent stand on adifferent footing from persons who may not be so closely relatedto the Councillor. [Para 10][221-D-E]

1.5 The words “such illegal or unauthorized construction”occurring in the second limb of Section 44(1)(e) could be said torefer to the construction made by the Councillor, his spouse orthe dependent, and in such a case, the words “directly or indirectlyresponsible for” and the words “or helped in his capacity asCouncillor”, would have to be applied. Such an interpretationwould produce unreasonable results. When the Councillorconstructs by himself, the words “or has directly or indirectlyresponsible for”, “or helped in his capacity as such Councillor”does not bear any meaning. The plain meaning of the first limb ofSection 44(1)(e) is that in the case of construction by theCouncillor himself, which is illegal, it would result indisqualification being incurred. The requirement of theCouncillor being directly or indirectly being responsible for orhelping in carrying out such construction in the capacity ofCouncillor in the case of the spouse or dependent also is not thestatutory requirement. Having regard to the close relationshipbetween the spouse and the Councillor on the one hand and thedependent and the Councillor on the other hand, the words“carrying out such illegal or unauthorized construction” hasreference to construction which violates the provisions of theTown Planning Act, the MRTP Act or the Rules and the Bye-lawsframed under those provisions. [Para 11][221-F-H; 222-A-B]

1.6 It is true that disqualifying the Councillor, is a seriousmatter. Councillors of local bodies, after the 73[rd] amendment tothe Constitution, are democratically elected representatives ofthe people at the grass root level. It is also true that in the caseof an Election Petition, the case against the respondent must be A

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Astrictly proved. However, Section 44(1)(e), which is ordained bythe Legislature, requires reasonable interpretation, and if theingredients are established, it must be given full play.[Para 12][222-C-D]

1.7 If temporary constructions are made it would also fallBwithin the mischief of Section 44(1)(e). In other words, iftemporary construction or structure have been illegally made bythe Councillor, spouse or dependent, disqualification follows. Infact, more than one temporary construction was actually made.The order of the Collector would show that as per the report ofthe Sub Divisional Officer, the constructions were carried out,Cand out of which, 5 were temporary and which were no doubtremoved. [Paras 14 and 16][222-G; 223-F-G]

2. It is not correct that as unauthorized construction alsobrings in its wake criminal action, action under Section 44(1)(e)will not lie. Section 44(1)(e) creates an independent liability orDrather creates disqualification as provided thereunder. This isde hors the criminal action. There is nothing brought to the noticeof the Court to conclude that action under Section 44(1)(e) mustbe preceded by a criminal action and conviction thereunder.Section 44(1)(e), as it stands, is neither dependent on a criminalEaction preceding it nor is the court to be influenced by the factthat making an unauthorized construction will have penalconsequences. [Para 15][222-H; 223-A-C]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4056of 2019.FFrom the Judgment and Order dated 19.04.2018 of the High Courtof Judicature at Bombay in Writ Petition No. 4647 of 2018.

Vinay Navare, Sr. Adv., Ms. Gwen Karthika, Ms. Abha R.Sharma, Advs. for the Appellant.

Kunal Cheema, Nishant Ramakantrao Katneshwarkar, AmolGChitale, Mrs. Pragya Baghel, Advs. for the Respondents.

The Judgment of the Court was delivered by

K. M. JOSEPH, J. 1. Leave granted.

2. The appellant who was elected as a Municipal Councillor wasHlater elected as President of the Council on 11.02.2015. On the ground that the husband of the appellant had carried out unauthorizedconstructions, the appellant came to be disqualified under Section 44(1)(e)of the Maharashtra Municipal Council Nagar Panchayat and IndustrialTownship Act, 1965 (In short “Maharashtra Municipal Council Act”).Section 44(1)(e) reads as follows:

“[(e) has constructed or construct by himself, his spouse or hisdependent, any illegal or unauthorised structure violating theprovisions of this Act, or the Maharashtra Regional and TownPlanning Act, 1966 or the rules or bye-laws framed under the saidActs; or has directly or indirectly been responsible for, or helpedin his capacity as such Councillor in, carrying out such illegal orunauthorized construction or has by written communication orphysically obstructed or tried to obstruct, any Competent Authorityfrom discharging its official duty in demolishing any illegal orunauthorised structure:]”

3. The disqualification was done on the basis of application dated26.09.2016 by the second respondent. Initially, the Collector by orderdated 04.05.2017 found the appellant disqualified. The appeal carriedby her was unsuccessful. She challenged the statutory orders in a writpetition before the High Court. The High Court by the impugned orderdismissed the petition.

4. We heard the learned counsel for the parties.

5. Mr. Vinay Navare, learned senior counsel appearing for theappellant, pointed out that husband of the appellant, who allegedly carriedout the unauthorized constructions, had deemed permission within themeaning of Section 45(5) of the Maharashtra Municipal Council Act. Itis further contended that the Court may consider that carrying out illegalactivity attracts penal provision and it is a grave matter and the impugnedorder could not be sustained. He further submitted that a perusal ofSection 44(1)(e) would show that the appellant cannot be held responsibleeven if her spouse had put up illegal structures.

6. Per contra, the learned counsel for the respondents essentiallycontended that the court may proceed on the basis that the constructionwhich has been carried out on the basis of the so-called deemed provisionmay not be sufficient to disqualify the appellant. However, they onlycontended that admittedly the appellant carried out the construction oftemporary structure.

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7. Rebutting the contention of the respondents regarding herhusband having carried out temporary constructions, it is submitted byappellant that the impugned orders did not bear out any specificconsideration of the same. The matter relates to disqualification whichrequires greater care.

B8. The first contention which we would address is that merelyproceeding on the basis that her husband put up the structures, it is notsufficient to attract Section 44(1)(e) of the Maharashtra Municipal CouncilAct. We are afraid that the contention of the appellant in this regardcannot be sustained. A perusal of Section 44(1)(e) would show that itfalls in three parts.C

9. The first limb of Section 44(1)(e) declares inter alia that if aCouncillor has constructed or constructs by himself [which would alsoinclude a construction by a lady Councillor], it would invite the wrath ofthe provision and it suffices to disqualify the Councillor. This is no doubtsubject to construction being illegal or unauthorized, that is, in violationDof the provisions of Maharashtra Municipal Council Act or MaharashtraRegional or Town Planning Act (In short ‘MRTP Act’) or the rules orbye-laws made under the said Act. Further, in order to attract the firstlimb, it is sufficient if the spouse of the Councillor or the dependentcarries out any illegal or unauthorized construction as aforesaid. In short,Eif the Councillor, his spouse or dependent carries out any illegal orunauthorized construction as aforesaid, it suffices to incur disqualificationfor the Councillor. We have to take Section 44(1)(e) as it is. The viresof the said provision is not questioned. On a plain reading of the provision,it is not relevant to consider whether the Councillor was in any mannerparty to the construction which is made either by her spouse or dependent.FThe policy underlying the provisions is to ensure that the highest level ofprobity is maintained by the Councillor and nearest members of theCouncillor’s family. It does not require the Councillor knowing the factof the construction being made by her spouse or dependent. We have totake the law as it is and fulfil the intention of the Legislature.

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10. The second limb of Section 44(1)(e) provides that if a Councillorhad directly or indirectly been responsible for or helped in his capacityas such Councillor in carrying out such illegal or unauthorized construction,the Councillor becomes amenable for action under Section 44(1)(e).The second limb does not deal with the construction by the Councillor, H

spouse or dependent. But insofar as any such illegal or unauthorizedconstruction is carried out resulting in the Councillor being disqualified isconcerned, the direct or indirect involvement of the Councillor or hishelp in the matter has to be established. It has to be established that theCouncillor has been directly or indirectly responsible or helped in hiscapacity as such Councillor in carrying out of illegal or unauthorizedconstruction. The third limb of Section 44(1)(e) has the following effect:

If a Councillor by a written communication obstructed or triedto obstruct any competent authority from discharge of his officialduty in demolishing any illegal or unauthorized construction, theCouncillor would incur disqualification under Section 44(1)(e). Thelast limb would also be attracted if the Councillor has physicallyobstructed or tried to obstruct any competent authority fromdischarging its official duty in demolishing any illegal orunauthorized construction. Thus, the Legislature has apparentlydistinguished between illegal or unauthorized construction, illegalor unauthorized structure being constructed by the Councillor’sspouse or by dependents as it was the legislative intention that theCouncillor will not carry out any such construction and he wouldalso be in a position to prevent construction either by his spouseor a person who is dependent on him. The fact that embargo isagainst the construction by the dependent and not any relative orperson not dependent on him would also indicate that illegalconstruction by the spouse or dependent stand on a different footingfrom persons who may not be so closely related to the Councillor.

11. The words “such illegal or unauthorized construction” occurringin the second limb of Section 44(1)(e) could be said to refer to theconstruction made by the Councillor, his spouse or the dependent, and insuch a case, the words “directly or indirectly responsible for” and thewords “or helped in his capacity as Councillor”, would have to be applied.Such an interpretation, in our view, would produce unreasonable results.When the Councillor constructs by himself, the words “or has directly orindirectly responsible for”, “or helped in his capacity as such Councillor”does not bear any meaning. The plain meaning of the first limb of Section44(1)(e) is that in the case of construction by the Councillor himself,which is illegal, it would result in disqualification being incurred. Therequirement of the Councillor being directly or indirectly being responsible AB

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Afor or helping in carrying out of such construction in the capacity ofCouncillor in the case of the spouse or dependent also is not the statutoryrequirement. Having regard to the close relationship between the spouseand the Councillor on the one hand and the dependent and the Councilloron the other hand, the words “carrying out such illegal or unauthorizedconstruction” has reference to construction which violates the provisionsBof the Town Planning Act, the MRTP Act or the Rules and the Bye-lawsframed under those provisions. Having disposed of the said contentionof the appellant, we must proceed to consider the other contentions.

12. It is true that disqualifying the Councillor, is a serious matter.Councillors of local bodies, after the 73[rd] amendment to the Constitution,Care democratically elected representatives of the people at the grassroot level. It is undoubtedly also true that in the case of an ElectionPetition, the case against the respondent must be strictly proved.However, Section 44(1)(e), which is ordained by the Legislature, requiresreasonable interpretation, and if the ingredients are established, it mustDbe given full play.

13. As already noted, the construction made by the husband ofthe appellant falls into two parts. Construction has been made on thebasis of deemed permission. In regard to deemed permission, thecontention raised by the respondents apparently based on a regulationEthat before commencing construction, even if there is deemed permission,a notice was to be served on the local body, may not apply, as it is not indispute that the said regulation itself is not applicable to the case at hand.This necessarily means that the case built up based on deemed permissionnot being effective, and therefore, there was unauthorized construction,cannot be pressed against the appellant and we also need not deal withFthe same.

14. The only question we are called upon to decide is the effect oftemporary construction which had been made. There is no dispute thatif temporary constructions are made it would also fall within the mischiefof Section 44(1)(e). In other words, if temporary construction or structureGhave been illegally made by the Councillor, spouse or dependent,disqualification follows.

15. We do not find merit in the contention of the appellant that asunauthorized construction also brings in its wake criminal action, actionunder Section 44(1)(e) will not lie. Section 44(1)(e) creates anH

independent liability or rather creates disqualification as providedthereunder. This is de hors the criminal action. There is nothing broughtto our notice to conclude that action under Section 44(1)(e) must bepreceded by a criminal action and conviction thereunder. Equally, theargument that if disqualification is incurred under Section 44(1)(e) sinceunauthorized construction can be visited under law creating criminalliability, action under Section 44(1)(e) will not lie. We are of the viewthat this argument has no merit and Section 44(1)(e), as it stands, isneither dependent on a criminal action preceding it nor is the court to beinfluenced by the fact that making an unauthorized construction will havepenal consequences.

16. The only contention which remains is regarding the temporarystructures. Our attention was drawn to the application produced at page55 of the SLP paper book. It is pointed that out that construction forwhich permission was sought and in respect of which the deemedpermission has been claimed, were not in relation to temporaryconstruction. In particular, our attention was drawn to Column 26 whichseeks details about the materials to be used in the construction. Asagainst the column roof, it is stated ‘RCC: The floors are shown as‘ceramic tiles’, against column walls, it is said ‘stone masonary’ andagainst Columns it is written ‘RCC’. Our attention was invited byrespondents to the following paragraph in the order passed by the Collectorwhich appear to set out the contentions of the appellant:

“Shed for the temporary residence of the workers is constructedand for that the permission of the Municipal Council is notnecessary. However, even for this no evidence was adduced.”

From this, conclusion is sought to be drawn that the temporaryconstructions were made and the case of the appellant was that nopermission is necessary. In fact, more than one temporary constructionwas actually made, it is pointed out on behalf of the respondents. Theorder of the Collector would show that as per the report of the SubDivisional Officer, the constructions were carried out, and out of which,5 were temporary and which were no doubt removed by YogeshWaghdhare.

17. Learned senior counsel for the appellant would submit that ina matter relating to disqualification the case and finding against thereturned candidate must have been more specific and clear. We are of AB

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Athe view that having regard to the order which has been passed, we donot think that any case is made out for interference. There is no caseraised by the appellant that for temporary construction, permission wasobtained. Appeal will stand dismissed. No order as to costs.

BKalpana K. Tripathy

Appeal dismissed.

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