A.P Deshpande, J.:— Rule. Rule made returnable forthwith. Heard the learned Counsel for the parties finally by consent.

2. The petitioner by the instant petition questions the legality and validity of the order passed by the respondent No. 2 State Government dated 24-4-2003 at Annexure ‘F’. The said order is purported to have been passed in exercise of powers under section 42(3) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 in an appeal filed by the respondent No. 3, a defeated candidate in municipal election.

3. The petitioner was elected as a municipal councillor to Municipal Council, Wadsa Desaiganj in December, 2001 as a candidate of Bharatiya Janata Party whereas the respondent No. 3 had contested the election as a candidate for the rival party and had lost the said election. The third respondent filed an appeal before the Minister for State, Department of Urban Development, Mantralaya making a complaint therein to the effect that the petitioner is a member of joint family of his mother and the petitioner's mother who is owner of a rice mill situated at Desaiganj, Wadsa had effected some illegal construction by making an encroachment on Government land which caused obstruction to the public way. To put it in short, it was the grievance made by the respondent No. 3 that as a consequence of the said alleged illegal construction, the petitioner has incurred a disqualification as he has constructed, either himself or through his dependent, an illegal and unauthorised structure violating the provisions of the Act or the Maharashtra Regional and Town Planning Act or the Rules or bye-laws framed under the said Act. It was alleged by the third respondent before the second respondent that the petitioner is directly or indirectly responsible for helping in the capacity as such councillor in carrying out the illegal and unauthorised construction. As referred to hereinabove, on the said complaint, the second respondent has passed an order declaring the petitioner as having incurred a disqualification and has further proceeded to pass an order disqualifying the petitioner for a period of five years from holding the office of councillor as is provided under sub-section (4) of section 42.

4. The learned Counsel for the petitioner though raised various grounds in the petition and attempted to substantiate the same, we need not deal with the other grounds except the one which is strenuously pressed in service and which relates to interpretation of sections 44 and 42 of the Act. The point raised by the learned Counsel for the petitioner is to the following effect:—

His submission is that the ground on which the second respondent has passed an order of disqualification and the petitioner's consequential removal from the office of Councillor is squarely covered by section 44(1)(e) which lays down that 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 constructs 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 (Mah. XXXVII of 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.

and he shall be disabled subject to the provisions of sub-section (3) from continuing to be a Councillor and his office shall become vacant:

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 the 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 disqualifications 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 the 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.”

The scheme of section 44 clearly brings home the position that if a Councillor incurs a disqualification contained in section 16 [except the disqualification specified in clause (h) of sub-section (1) of that section] or has incurred other disqualifications contained in section 44, then in that eventuality, removal is permissible in the manner laid down in sub-sections (2) and (3) of section 44. Sub-section (2) obliges the Chief Officer, on noticing that any Councillor has incurred a disqualification, to submit a report to the Collector within the stipulated period. Sub-section (3) categorically declares that in every case the authority to decide whether a vacancy has arisen shall be the Collector. The Collector is empowered to act on the report submitted by the Chief Officer or suo motu or on an application made to him by any voter to give a decision as to whether the Councillor has incurred a disqualification. It is only on communication of the said decision by the Collector to the Councillor concerned, the said decision takes effect. Till the decision of the Collector is communicated to the Councillor, he shall not be deemed to have ceased to hold the office. subsection (4) of section 44 provides a remedy of appeal to the aggrieved person and the appeal is provided to the State Government and the State Government's order has been given finality. The orders that are expected to be passed by the Collector and the State Government under section 44 are to be passed after granting an opportunity of hearing to the Councillor and the same is provided for in the proviso to sub-section (4).

5. In the instant case, the removal of the Councillor is squarely for the reason of he having incurred a disqualification under section 44(1)(e) and on no other count. The learned Counsel for the petitioner in this view of the matter, submits that the only course which is permissible to be adopted for the removal of the petitioner was by an order of the Collector and the State Government being an appellate authority could not have entertained the complaint directly and passed an order unseating the petitioner Councillor, besides disqualifying him for a further period of 5 years from the date of the impugned order.

6. Per contra, the learned Counsel appearing for the respondent No. 3, viz. the appellant/complainant before the State Government, has tried to justify the order by placing reliance on section 42 of the Act, which reads thus:—

S. 42. Liability of Councillors to removal from office.— (1) The State Government may on its own motion or on the recommendation of the Council remove any Councillor from office if such Councillor has been guilty of any misconduct in the discharge of his duties, or of any disgraceful conduct during his current term of office or even during his immediately preceding term of office as a Councillor.

(2) The State Government may likewise remove any Councillor from office if such Councillor has in the opinion of the State Government become incapable of performing his duties as a Councillor.

(3) No resolution recommending the removal of any Councillor for the purposes of sub-section (1) or (2) shall be passed by a Council and no order of removal shall be made by the State Government, unless the Councillor to whom it relates has been given a reasonable opportunity of showing cause why such recommendation or order, as the case may be, should not be made.

(4) In every case the State Government makes an order under sub-section (1) or (2), the Councillor shall be disqualified from becoming a Councillor, or a Councillor or member of any other local authority for a period of five years from the date of such order.

In view of the above, the learned Counsel for the respondent No. 3, has submitted that the jurisdiction of the State Government to remove a Councillor if he has been guilty of any misconduct in the discharge of his duties or of any disgraceful conduct cannot be cut down by excluding the cases covered by section 44 of the Act. He further submits that the jurisdiction of the State Government is concurrent in regard to all the matters falling under section 16 and/or section 44 of the Act.

7. Having regard to the scheme of the Act in the matter of removal of the Councillor, it is clear that a Councillor can be removed under section 44 if he incurs a disqualification specified in section 16 (except the disqualifications specified in clause (h) of sub-section (1) of that section) or if he incurs a disqualification as prescribed in section 44(1)(b), (c), (d) and (e). Such removal has to be in the manner prescribed. It is a settled position of law, that if law provides a thing to be done in a particular manner, then it has to be done in that manner only or not at all. A foolproof procedure is laid down in section 44 and the Collector is named as a Competent Authority to decide whether a vacancy has arisen as a result of the Councillor incurring a disqualification and it is pertinent to note that the decision of the Collector in that regard is subject to an appeal before the State Government. If this be the position in law, it is difficult to read that the disqualifications contained in section 16 and section 44 would also fall within the compass of the phraseology used in section 42 which reads thus:—

“if such Councillor has been guilty of any misconduct in the discharge of his duties or of any disgraceful conduct.”

No doubt, the State Government has wide powers to remove a Councillor in the matters pertaining to misconduct in the discharge of his duties or any disgraceful conduct but it is obvious that the misconduct or disgraceful conduct referred to in section 42 would not cover and include the disqualifications contained in section 16 or section 44 of the Act. Reading of section 42 in the manner canvassed by the learned Counsel for the respondent No. 3 would render the provision contained in section 44 nugatory. Section 42 is enacted to take care of cases of misconduct and disgraceful conduct falling outside the disqualifications contained in section 16 and section 44 of the Act.

8. The learned Counsel Shri P.C Madkholkar appearing for the respondent No. 3 has submitted that section 16 and section 44 are so exhaustive that all possible misconducts and disgraceful conducts are covered therein and nothing could be said to have been left out of it. We are not in agreement with this submission. It is possible to conceive of various other misconducts and disgraceful conducts which a Councillor could be accused of being guilty, which fall outside the disqualifications contained in section 16 and section 44 of the Act. We need not mention those situations as the same is not necessary. Both the sections, viz. sections 42 and 44 operate in different spheres. Once it is found that the act complained of in regard to incurring of disqualification falls within the ambit of disqualifications contained in section 16 [except the disqualification specified in clause (h) of sub-section (1) of the section] or under section 44(1)(b), (c), (d) or (e), the procedure laid down in section 44 has to be followed and the jurisdiction to determine, as to whether a Councillor has incurred a disqualification would vest in the Collector and the State Government being an appellate Authority cannot exercise the powers of the Collector by entertaining a complaint at the first instance.

9. In this view of the matter, we are of the clear view that the second respondent passed the impugned order without jurisdiction and as such, the same is nullity requiring its quashing and setting aside. We make it clear that though other grounds are raised in the petition, we are not proceeding to decide the same as the petition can be conveniently disposed of in the light of the interpretation that we have placed on sections 42 and 44 of the Act.

10. It is brought to our notice that during pendency of this petition, the learned Single Judge of this Court by its order dated 13-5-2003 had passed an interim order in terms of prayer made in application dated 13-5-2003 bearing C.A No. 2706/03. The prayer therein seeks stay of the operation and execution of the letter dated 13-5-2003 filed at Annexure ‘A-1’. The letter at Annexure ‘A-1’ dated 3-5-2003 is in regard to taking of proceedings for filling in the post which fell vacant pursuant to the order passed by the respondent No. 2 which is impugned in the instant writ petition. It is as such clear that because of interim order passed by this Court the post occupied by the petitioner is still lying vacant.

11. In the result, the Writ Petition is allowed and we pass the following order:—

The impugned order passed by the respondent No. 2 is quashed and set aside.

There shall be no order as to the costs.

Writ petition allowed.