Rule. Respondents waive service.
2. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner challenges the order dated 25-6-2007 passed by the State Government disqualifying and removing him from the post of President of Nallasopara Municipal Council. The order is passed under sections 55A and 55B of the Maharashtra (Municipal Councils) (Nagar Panchayats and Industrial Townships) Act, 1965 (for short, the Act).
3. The facts leading to the petition are that the petitioner was elected as a President of the Council in the election held on 10-4-2005. He continues to be the President of the Municipal Council. It appears that a complaint was lodged by the respondent No. 4 alleging that the petitioner had carried out unauthorised construction. Similar complaint was made by one Rakesh Madhukar Zaveri. The Government did not take any action initially on the complaints and even the Collector, Thane rejected the representation of the said, Rakesh Zaveri.
4. Respondent No. 4 filed Writ Petition being Writ Petition No. 366 of 2006 before this Court seeking a direction to the Government to take action on the complaint. A direction was issued by the Division Bench in the said Writ Petition to the Collector, District-Thane to submit report to this Court. A report was submitted on 23-1-2007 by the Collector. It appears that this Court disposed off the Writ Petition by directing that the Government should take a decision after hearing the parties. Thereafter, Show Cause Notice was issued on 31-2-2007 to the petitioners.
5. A reply was filed by the petitioner denying all allegations. Thereafter, the matter was placed before the Minister of State (Urban Development, Government of Maharashtra) and he has passed the impugned order.
6. Mr. Jahagirdar, Learned Senior Counsel appearing for the petitioner, submits that, the impugned order is contrary to law. He submits that the first respondent has erred in disqualifying the petitioner. He submits that there is no case made out either under section 55A or section 55B of the Act. He submits that the entire action is politically motivated. He submits that the Show Cause Notice and the allegations are based upon something which has no connection with the petitioner's duties and functions as a President of the Council. Relying upon section 55A, it is contended that the section applies to the post of President. Any action or act of omission or commission as a President falls within the purview of the said provision. That alone would be covered by the same. There is no question of the petitioner being disqualified for the acts allegedly committed when the petitioner was not the President of the Council. In other words, the acts complained of, must have some nexus with the duties of the petitioner as a President and the exercise of powers in that behalf. He submits that the acts alleged in the Show Cause Notice have no connection or bearing with the petitioner's functioning as a President. In this view of the matter, the impugned order deserves to be quashed and set aside on this ground alone.
7. Mr. Jahagirdar, has submitted that assuming without admitting that the acts alleged during the course of the petitioner's term as a Councillor could be made subject-matter of proceedings, still, in the present case the said acts cannot be falling within the purview of section 44(1)(e) so as to disqualify the petitioner.
8. Mr. Jahgirdar submits that the true facts with regard to the alleged unauthorised construction are as under:—
9. That the property on which the structures are situated and alleged to be unauthorized, was sold and transferred against the entire consideration having been received and possession was handed over way back in the year 1998 by the petitioner and his partner to one Shubham Constructions under an Agreement dated 20th June, 1998 and the said property further changed hands and was ultimately transferred by the said Shubham Constructions to one Vinay Tambe also in the year 1998 and as such save and except the name of the petitioner appearing in the records as the owners, the petitioner did not have any concern with the said property much less ownership rights.
10. That it was no one's case that the construction alleged to be unauthorized was carried out by the petitioner and in fact on the contrary it was brought on record that the construction was carried out by one Vinay Tambe in his independent and individual capacity.
11. That the respondent No. 1 has completely ignored and failed to take into consideration the detailed reply given by the petitioner as also various documents placed on record showing the transfer of property.
12. The respondent No. 1 has erred in not giving any reasons while accepting the allegations against the petitioner of having carried out unauthorised construction.
13. The respondent No. 1 ought to have noted that the N.A permission was issued by the competent authority in the name of said Vinay Tambe, all the taxes were paid by the said Vinay Tambe and the occupants which also established that the petitioner has no concern whatsoever with the so-called unauthorised constructions.
14. That the respondent No. 1 has failed to lake into consideration various authorities relied upon by the petitioner and annexed to the reply to the effect that though the document was titled as an Agreement, the title passed unto the purchasers on payment of entire consideration and possession having been handed over.
15. The first respondent ought to have noted that there was nothing on record otherwise to show that the structures were unauthorised. In the absence of any action by the competent authority alleging such structure to be unauthorised (assuming the petitioner is to be held responsible) the provisions are not attracted at all. This specific contention in reply is also not taken into consideration or dealt with at all by the 1st respondent.
16. That the first respondent has erred in not considering the supporting Affidavits filed by Ramji Veera and Nilesh Mhatre in support of explanation given by the petitioner as to the passing of title and the sale of property. The respondent No. 1 on the contrary ought to have taken same into consideration while considering the transfer of ownership by the petitioner and the said Ramji Veera in favour of the said Nilesh Mhatre, Proprietor of Shubham Constructions.
17. That the respondent No. 1 ought to have noted the above facts and held in favour of the petitioner by taking into consideration bona fide of the petitioners in disclosing true and correct facts. On the other hand, relying upon some document showing the subject property as owned by the petitioner or solely on the basis of entry in the 7/12 extract the order could not have been passed. It is not as if the first respondent doubts the genuineness and authenticity of the documents produced by the petitioner. The 1st respondent's conclusions are thus wholly vitiated in law. There can be no disqualification on the alleged ground of non-disclosure of the correct facts.
18. Mr. Jahagirdar, therefore submits that no case is made out for disqualifying the petitioner.
19. Mr. Jahagirdar, has relied upon the following decisions in support of his above contentions:—
(i) 2006 (2) Bom. C.R 157, Ramesh Gangadhar Korde… v. State Of Maharashtra & Others…, (ii) 2006 (3) Mh. L.J 227 : 2006 (1) Bom. C.R 121, Sunita Vilasrao Salunkhe v. State of Maharashtra, (iii) 2006 (1) Bom. C.R 124 Sahebrao Tukaram Tapkir v. Baban Maruti Tapkir, (iv) 2006 (1) Mh. L.J 292 : 2006 (3) Bom. C.R 404, Keshav Shankar Ekbote v. State of Maharashtra, (v) 2006 (1) Mh. L.J 378 : 2006 (3) Bom. C.R 414, Tata Memorial Hospital v. Shashikant Shrikrishna Sompurkar
20. On the other hand, the learned AGP and Ms. Karnik appearing for respondent No. 4 have supported the impugned order. They submit that the petitioner is guilty of the works and construction which was fully unauthorised. She submits that the petitioner is claiming to have sold the land to Shubham Constructions and its proprietor Mr. Nilesh Mhatre on 20-6-1998. However, the document filed on record is just an agreement, stamp paper of Rs. 20/-. That agreement does not create any right in favour of Subham Constructions nor does it extinguish the ownership right of the petitioner. She submits that the land situated at Village-More Survey No. 188, Hissa No. 18 (Part) stands in the name of the petitioner and one Ramji Premji Vira. There are illegal chawls built upon the same. The 7/12 Extract, the Tax bills and the Warrant of Attachment would show that the property stands in the name of the petitioner. The petitioner has filed false Affidavit of there being no dues or arrears of municipal taxes. The certificate dated 3-3-2005 in that behalf is totally incorrect. She submits that the Planning Authority has indicated that the construction is in Green Zone. Thus, the respondent No. 1 has made unauthorised construction, exercised his power for granting illegal water connection to unauthorised chawls, exercised his power and influence to obtain a false Certificate, so also, filed a false affidavit and false information. He cannot continue as a President. He is guilty of misdemeanour/disgraceful act. For all these reasons and in the light of serious allegations made in the Public Interest Litigation, the petitioner must be disqualified, and the order in that behalf does not suffer from any infirmity. Consequently, the petition must be dismissed.
21. For properly appreciating the rival contentions a reference must be made to the relevant statutory provisions.
22. Section 55A of the Act provides for removal of President and Vice-President by government. Section 55B which has been inserted after the amendment to the Act reads thus:—
“55-A. Removal of President and Vice-President by Government. — Without prejudice to the provisions of sections (55-1a) and 55, a President or a Vice-President may be removed from office by the State Government for misconduct in the discharge of his duties, or for neglect of, or incapacity to perform his duties or for being guilty of any disgraceful conduct, and the President or Vice-President so removed shall not be eligible for re-election or re-appointment as President or Vice-President, as the case may be, during the remainder of the term of office of the Councillors:
Provided that, no such President or Vice-President shall be removed from office, unless he has been given a reasonable opportunity to furnish an explanation.
23. A perusal of this provision would indicate that the President can be removed by Government and that power of removal is distinct from the power granted to the Councillors. While Councillors can remove the President by passing a Resolution in terms of section 55(1), the Government can remove a President or a Vice President from office under section 55A, if he/she has committed misconduct in the discharge of his duties or has neglected to perform his duties or incapacity to perform his duties or he is guilty of any disgraceful conduct. The ambit and scope of these powers have been subject-matter of several decisions including of this Court. A reference can be made to the judgment of the Division Bench in the case of Baburao Vishwanath Mathpati v. State of Maharashtra, reported in 1996 (1) Mh. L.J 366 : AIR 1996 Bom. 227. Reliance is placed upon para-38 and 52 of the said judgment. They read thus:—
“38. We think it would be appropriate to deal with some of the arguments advanced by the learned counsel for the petitioner in relation to the meaning of word ‘neglect’ as used in section 55A and the procedure for exercise of powers under section 55A of the Act. Before we advert to these arguments, we may mention that preamble of the Act intends to provide for a unifide pattern of constitution, administration and powers of the municipalities in the State of Maharashtra and to make better provisions thereof. The Act contains several chapters and chapter III contains provisions regarding the duties and functions of the council as well as the municipal executives. Section 51 of the Act inter alia provides that every council shall have a President, which shall be elected by the elected councillors from amongst themselves. The term of a President is coterminous with the term of elected councillors. Section 55, however contains a provision to remove President by Councillors whereas section 55A empowers the State Government to remove him from his office for misconduct in discharge of his duties or for an enquiry or incapacity of performing his duties or for being guilty of any disgraceful conduct and the President so removed shall not be eligible for re-election or reappointment as a President during the remainder period of the office of council. It may be stated that section 55A is introduced by section 21 of the Maharashtra Act 19 of 1981. Proviso to section 55A provides that no such President shall be removed from the office unless he has been given a reasonable opportunity to furnish an explanation. There is another mode whereby a President can be dislodged from the office of the President. Section 313 confers a power on the State Government to appoint an administrator in certain circumstances by supersession of the Municipal Council.”
50. We may observe that a confusion may arise by reading the words “neglect” and ‘negligence’. The word ‘neglect’ appears to have a different connotation than the word ‘negligence’. The word ‘neglect’ as earlier said means ‘gross neglect’, wilful, intentional, culpable or flagrant disregard of duties.” It is mentioned earlier that the President of Municipal Council can be dislodged by resorting to the power conferred on the councillors by moving no-confidence motion under section 55 of the Act for no grounds or reason are required to be stated. The object behind this is that there should not be any stigma on the President so removed. We have also referred to section 313 of the Act where the power is conferred on the State Government for supersession of the Municipal Council by appointing an administrator. There the word “misconduct” has been interpreted to mean “gross misconduct”. Section 55A of the Act no doubt confers power on the State Government to remove the President on account of “misconduct”, neglect of duties, incapacity to perform duties and disgraceful conduct.” This provision sufficiently entails civil consequences and attaches stigma to the President and therefore, in order to remove a President on these grounds the order must be founded on strong grounds. Therefore, the word “neglect” must be understood from the gravity of the charges and therefore, the word “neglect” as used in the section means “gross neglect” which may be synonymous to the word “wilful, intentional or culpable as the case may be”. There should be flagrant disregard of duties so as to call for removal of the President under section 55A of the Act. Therefore, applying the ‘golden rule’ of construction of statute which has been recognised by the Apex Court, we have no hesitation to come to the conclusion that the word ‘neglect’ has a connotation as ‘gross, wilful’ or ‘intentional’ neglect.
24. When it comes to disqualification of a Councillor, that aspect is covered by section 44 which reads 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) 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), (e) 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) absents 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 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 therefrom 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 Controller 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 Controller 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.
25. Section 44 has been amended and some additional grounds to disqualify have been added therein. Further, a President or Vice president, after they are removed by the Government under section 55a and 55(1a), cease to be Councillors and that is provided by section 55B.
26. A perusal of the order passed in the present case, would indicate that the Minister was considering an application against the petitioner which invoked his powers under section 55A of the Act. The grievance was that the petitioner and one Vinay Tambe had an immovable property, more particularly, described in Clause-1 of the impugned order regarding which they had received a Notice for payment of taxes, but, the taxes were not paid. Therefore, Warrant for attachment was issued. The amount was not paid till the nomination forms of the petitioner were accepted.
27. The other allegation is that there is a property/land which belongs to the petitioner and one Ramji Premji Veera. On this property bearing Survey No. 141/19 Zone-III, there is an unauthorised construction. In such circumstances, the petitioner is disqualified to be a Councillor. Further the petitioner and Ramji Premji Veera had on 20-6-1998 executed an agreement on a stamp paper of Rs. 10/- with one Shubham Constructions. The consideration of the land which belonged to these persons and which was agreed to be sold is Rs. 35,05,000/-. However, this agreement, is not registered and therefore has no legal sanctity. Therefore, this property continues to belong to the petitioner. Since registration fee and other amounts which have not been paid, the petitioner is liable to be removed.
28. It is rather surprising that the Authority takes into consideration, the charges levelled against the petitioner in his capacity as a Councillor. The Minister seems to be aware that he could not have exercised the powers under section 44(3) of the Act, because, those are to be exercised by the Collector. He is aware of the fact that the petitioner is directly elected President of the Council. In such circumstances, his removal under section 55A is possible at the hands of the State Government. The Minister is also aware of the fact that the power cannot be exercised to remove the Councillor by the State. Still, he proceeds to take cognisance of the allegations against the petitioner, when they are pertaining to his tenure as a Councillor. It is specifically urged before me by Mr. Jahagirdar that the petitioner was a directly elected President of the Council. The petitioner is sought to be proceeded against for his alleged disqualification as a Councillor. This is possibly because, the petitioner is a directly elected President and the apprehension is that if the petitioner is removed as President, still, he may continue as a Councillor. Therefore, overlooking section 55B and taking a reverse route, the petitioner was dealt with under section 55a. section 55b speaks of a Councillor who is found guilty of misconduct in the discharge of his official duties or being guilty of disgraceful conduct, while he was holding the office of the President or Vice President, as the case may be. Such a Councillor can be disqualified as a Councillor for remainder of his term, even, if he is not proceeded against under section 55A. However, when the President is directly elected, then, proceeding against him under section 44(1)(e) would not be permissible, is the submission.
29. Without going into these larger issue, even otherwise it is not the case of the Government or the complainant that the unauthorised construction was made during the tenure of the petitioner as a President. All allegations pertain to the year 1998. The agreement with Shubham Constructions is dated 20-6-1998. The land has been allegedly transferred to Vinay Tambe by the said Shubham Constructions. It is not alleged and indeed not proved that the petitioner himself was instrumental in the unauthorised construction or that the construction was carried out when the petitioner was shown as the owner of the property in the land records. Thus, a matter as old as 1998 could not have been raked up to remove the petitioner as the President of the Council. Admittedly, the petitioner is holding the office of President since 10-4-2005 and continues as such. All allegations do not pertain to his tenure as a President. If the allegations are taken as they are, there is no reference to the petitioner's duties as a President therein. There is no allegation that the petitioner is guilty of disgraceful conduct as a President.
30. In this behalf, a perusal of the Show Cause notice, would demonstrate that the allegations do not pertain to the petitioner's tenure as a President. Even the allegations of alleged disgraceful conduct do not pertain to the tenure as a President.
31. Insofar as, the complainant is concerned, he has made several allegations and he has tried to improve upon the same as well. However, the State Government does not find any merit in the allegation with regard to arrears of taxes. The notice sent has been received by the petitioner after the elections. Therefore, the conclusion drawn is that he is not in arrears of any payment on the date of elections.
32. However, insofar as, Survey No. 188, Hissa No. 18 (land) is concerned, the Minister has observed that the land has been transferred by an agreement and even a Power of Attorney is given in favour of one Nilesh Ramesh Mhatre. The said Nilesh Mhatre has transferred some portion of this land to one Vinay Yeshwant Tambe. Vinay Yeshwant Tambe has obtained a non-agricultural (NA) permission. The construction has been made by Vinay Tambe. The conclusion drawn is that despite all this, the agreement of sale in favour of Shubham Constructions, not having been registered and the petitioner's name appearing in the 7/12 Extract means that the petitioner has indirectly assisted the unauthorised construction. The petitioner has in the nomination form stated that the said land belongs to him and that he is the owner of the same. Therefore, he has assisted in the unauthorised construction. This act according to the Minister is enough to disqualify the petitioner under section 441(1)(E), but, that power cannot be exercised by him. That will have to be exercised by the Collector. The Collector on 17-11-2006 disposed off the application under section 44(1) and recommended action under section 55A in his report forwarded to the State Government. In such circumstances and when a directly elected President is also treated as a Member of the Municipal Council, the petitioner is liable to be removed.
33. Such a conclusion is patently unsustainable. There are no details with regard to the alleged unauthorised construction. There is absolutely no reference to the extent or area of the same. The documents pertaining to the same do not find any reference in the impugned order. Therefore, the basis on which the conclusion, that the construction was unauthorised, is arrived at, cannot be sustained. The order under challenge therefore suffers from complete non-application of mind. If the petitioner has any connection or has encouraged or supported the unauthorised construction and that is the charge, then, it was incumbent upon the Complainant and the State Government to have placed on record all such details as would establish the nexus or connection of the petitioner with the construction at site. That itself not being done, the impugned order is liable to be interfered with under Article 226 and 227 of the Constitution of India. It is totally vitiated and perverse.
34. A bare reading of section 44(1)(e), it is apparent that a Councillor is disqualified to hold office, if at any time during his term of office, he has constructed either by himself, his spouse or his dependent any illegal or unauthorised structure violating the provisions of the Municipal Councils Act or the MRTP Act, 1966 or the Rules or Bye-Laws framed under the said Act. This is one part of the disqualification provision. However, the other part is, if the Councillor 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. This the last part of the provision.
35. In the present case, it is alleged that 25 chawls are illegally constructed.
36. Now, there are no particulars with regard to any unauthorised structure or construction of any illegal structure violating the provisions of the Municipal Act or the MRTP Act or the Rules or Bye-laws framed under the Act. The petitioner had denied that there was any unauthorised construction. Further, his case is that the construction has not been made by him but the non-agricultural permission was obtained by one Vinay Tambe and he was carrying out the construction. All these assertions are not dealt with at all in the impugned order. Further, the nexus as stated, is not established which is necessary from the words “has directly or indirectly been responsible for, or helped in his capacity as such Councillor”. Therefore the councillor must be directly or indirectly been responsible for or must have helped in his capacity as a Councillor in carrying on such illegal or unauthorised construction. Therefore, assuming that there is some connection between the construction work at site, unless the petitioner's association therewith is not established in this manner, no conclusion could have been drawn against him. The First Respondent has overlooked this fundamental aspect and basic ingredient of the matter.
37. The petition therefore must succeed. Rule is made absolute in terms of prayer clause (a).
38. The Civil Application is for vacating the Ad-interim relief. Therefore, it does not survive.
Petition allowed.