A.P Lavande, J.:— Letters Patent Appeal No. 320/2008 and the reference made in Writ Petition Nos. 4910/2008 and 4911/2008 are being disposed of by the common Judgment since the question of law involved in the appeal as well as in the reference is identical.
2. We have heard Mr. C.A Joshi, learned counsel for the petitioner and Mr. S.V Sohoni, learned counsel for the respondent No. 1 in Writ Petition Nos. 4910/2008 and 4911/2008 and Mrs. S. Wandile, learned counsel for respondent No. 3 in Writ Petition No. 4911/2008 and Mr. A.S Chandurkar, learned counsel for the appellant, Mrs. Wandile, learned A.G.P for respondent Nos. 1 and 2, Mr. P.C Khajanchi, learned counsel for respondent No. 3 and Mr. Dubey, learned counsel for respondent No. 4 in Letters Patent Appeal No. 320/2008.
3. In Writ Petition Nos. 4910/2008 and 4911/2008 the learned Single Judge held that the view taken by another learned Judge in Writ Petition No. 2203/08 Javed Sheikh Mustaque Patel v. State of Maharashtra, reported in 2008 (5) ALL M.R 334, that disqualification under section 44(1) of the Act is attracted, even if the illegal/unauthorised construction is done by the Councillor prior to his tenure as a Councillor, was not the correct view. On account of difference in opinion between the two learned Single Judges of this Court, reference has been made to this Court to decide the issue as to whether an unauthorised/illegal construction made by a councillor either by himself, his spouse or his dependent prior to his tenure as a councillor will attract disqualification under section 44(1)(e) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (“The Act” for shot).
4. In Writ Petition No. 4910/2008, the petitioner has challenged the order dated 3-11-2008 passed by the State Government dismissing the appeal filed against the order dated 27-5-2008 passed by the Collector, Akola under section 44(1)(e) of the Act. The petitioner was declared elected as councillor of Ward No. 20 of Balapur Municipal Council in November, 2006. The respondent No. 1 filed application seeking disqualification of the petitioner on the ground that he had raised illegal/unauthorised construction. The Collector of Akola called the report from the Town Planning Department. The Collector held that the construction was illegal and consequently by order dated 27-5-2008 disqualified the petitioner under section 44(1)(e) of the Act placing reliance upon the Judgment of this Court in the case of Edwin Francis Britto v. Municipal Corporation of Greater Mumbai, 2006 (6) Bombay CR 92 in which it is held that whether the construction was prior to the election or not was not significant and the disqualification under section 16(1D) of the Bombay (Mumbai) Municipal Corporation Act, 1988 was attracted. The appeal preferred to the State Government under section 44(4) of the Act challenging the said order was dismissed by the State Government by order dated 3-11-2008. Aggrieved by both the orders, the petitioner filed the writ petition.
5. In Writ Petition No. 4911/2008, the petitioner was elected as Councillor of Ward No. 8 of Balapur Municipal Council in November 2006. The respondent No. 1 moved the application under section 44(1)(e) before the Collector alleging that the wife of the petitioner had done illegal construction on plot No. 590 and thereby had incurred disqualification. After calling report from the Town Planning Department, the Collector held that the construction was unauthorised and consequently by order dated 27-5-2008 disqualified the petitioner. The appeal preferred to the State Government was also dismissed by order dated 23-10-2008. Aggrieved by both the orders the petitioner filed Writ Petition No. 4911/08 challenging both the orders.
6. Both the writ petitions were taken up for final disposal by the learned Single Judge. Before the learned Single Judge, on behalf of respondent No. 1 reliance was placed upon the Judgment delivered by this Court by another Single Judge of this Court in the matter of Javed Sheikh Mustaque Patel v. State of Maharashtra, 2008 (5) All MR 334.
In Javed Patel's case (supra), the learned Single Judge has held that unauthorised construction made by a councillor even prior to filing of the nomination paper or prior to the tenure as a member or office bearer would also fall within the mischief of section 44(1)(e) of the Act.
7. Learned Judge held that the ratio in Edwin Britto's case was not attracted having regard to the phraseology of section 16(1D) of the Bombay Municipal Corporation Act which is different from section 44(1)(e) of the Act. Learned Judge further held that from a bare reading of section 44(1)(e) of the Act it is evident that in order to attract disqualification the construction must be undertaken at any time during his term of office (emphasis supplied) and held that the words “has constructed or constructs” need to be understood in this background. The learned Single Judge further held that section 16(1D) of the Bombay Municipal Corporation Act and provisions of section 44(1)(e) of the Act cannot be treated as pari materia provisions and, therefore, interpretation of section 16(1D) by the learned Single Judge would not be relevant for interpreting the very same words used in section 44(1)(e) of the Act. The learned Single Judge, therefore, held that under the provisions of the Act the person who raised unauthorised construction prior to his election as a councillor cannot be subject to disqualification under section 44(1)(e) of the Act. Since the learned single Judge did not subscribe to the view taken by the learned Single Judge in Javed Patel's case (supra), the learned Single Judge directed that the matters be placed before the Hon'ble The Chief Justice. Consequently, the reference has been made which has been placed before us for decision.
8. Letters Patent Appeal No. 320/2008 has been filed by Javed Sheikh Mustaque Patel, the petitioner in Writ Petition No. 2203/08 challenging the Judgment and order dated 18-6-2008 passed by the learned Judge dismissing the petition inter alia, holding that unauthorised construction made prior to filing of nomination paper or prior to the tenure as a councillor would fall within the mischief of section 44(1)(e) of the Act. The appellant was elected as a councillor from Ward No. 8 of Municipal Council, Digras and thereafter he was elected as Vice President of the Municipal Council, Digras. On 3-10-2007, respondent No. 4 filed an application before the Collector, Yavatmal seeking disqualification under section 44(1)(e) of the Act on the ground that the appellant has made illegal construction after encroaching upon the Government land. The Collector, Yavatmal passed order dated 10-3-2008 disqualifying the appellant under section 44(1)(e) of the Act. The State Government dismissed the appeal preferred by the appellant. The appellant preferred Writ Petition No. 2203/08 challenging both these orders. The learned Single Judge after hearing the parties by Judgment and order dated 18-6-2008 dismissed the Writ Petition. In view of the disqualification of the respondent No. 4, election was held and respondent No. 5 was elected as a councillor of Ward No. 8.
The learned Single Judge dismissed the writ petition holding that irrespective of the fact whether the construction was undertaken by the appellant during his tenure or prior, disqualification under section 44(1)(e) was attracted. Indisputably, neither both the authorities below nor the learned Single Judge has given any finding regarding the period during which the illegal construction was undertaken by the appellant.
9. Mr. C.A Joshi, the learned counsel for the petitioner in both the writ petitions submitted that in order to attract the disqualification under section 44(1)(e) of the Act offending construction has to be made by the councillor during the tenure of his office in terms of the section 44(1)(e) of the Act. According to Mr. Joshi, the intention of the legislator has to be gathered from the plain meaning of the words used in the Act and if this test is applied the only conclusion that can be drawn is that in order to attract disqualification of a councillor offending construction must have been undertaken during his tenure. He, therefore, submitted that the view taken by the learned Single Judge in Javed Patel's case (supra) is not the correct view. Insofar as the case of Edwin Britto's case is concerned, the learned counsel submitted that the ratio laid down in the said case is not attracted having regard to the provisions of section 16(1D) of the Bombay Municipal Corporation Act which are not in pari materia with section 44(1)(e) of the Act. The learned counsel urged that the view taken by the learned Judge while making reference is the correct view and, therefore, deserves to be accepted. Mr. Joshi urged that insofar as Writ Petition No. 4910/08 is concerned, the Collector as well as the State Government has not given any finding regarding the period when the illegal construction was undertaken by the petitioner and, therefore, in case the view taken by learned Judge while making reference is accepted, Writ Petition No. 4910/08 deserves to be allowed and the matter remanded to the Collector to decide the issue as to whether the construction was done during the tenure of the petitioner or prior thereto. Insofar as the Writ Petition No. 4911/08 is concerned, the learned Single Judge submitted that both the authorities below as well as the learned Single Judge while making reference have held that the construction was undertaken in the year 1990 i.e much prior to the petitioner getting elected as a councillor and, therefore, in the event the stand taken by the petitioner is accepted, the petition deserves to be allowed since no purpose would be served by remanding the matter either to the learned Single Judge or to the authorities below.
10. Mr. Sohoni, the learned counsel appearing for respondent No. 1 in both the petitions submitted that the ratio laid down in Edwin Britto's case (supra) is squarely applicable in the present case and the view taken by the learned Single Judge in Javed Patel's case is the correct one. According to Mr. Sohoni, any other interpretation would defeat the very purpose of enacting the provisions inasmuch as a councillor who either by himself, his spouse or his dependent has undertaken illegal construction prior to his becoming councillor would not incur disqualification thereby resulting in conflict between the duty and interest. In support of his submissions, Mr. Sohoni relied upon the Judgment of this Court in Vidyadhar Vinayak Mathane v. State of Maharashtra, 2004 (3) Mh.L.J 328 : 2004 (3) ALL MR 285.
11. Mr. A.S Chandurkar, the learned counsel appearing for the appellant in Letters Patent Appeal No. 320/08 submitted that the view taken by the learned Single Judge while making reference is the correct view. According to the learned counsel from a bare reading of section 44 it is clear that the disqualification is attracted if the conditions mentioned in (a) to (e) are attracted during the term of the office of the councillor except disqualification specified in clause (h) of sub-section (1) of section 16 of the Act. According to the learned counsel, section 16 of the Act prescribes disqualification for becoming a councillor by election or nomination whereas under section 44 the disqualifications prescribed are additional disqualifications incurred by the councillor during his tenure if any of the clauses (a) to (e) is attracted. Placing reliance upon the explanation to section 44 of the Act, the learned counsel submitted that disqualifications mentioned under section 44 of the Act are in addition to those prescribed under section 16 which disqualify a person from becoming the councillor. According to Mr. Chandurkar, on a plain reading of section 44(1)(e) the only conclusion that can be drawn is that in order to disqualify the councillor the offending construction must have been undertaken during his tenure and any illegal construction carried out by the councillor or by his spouse or dependent prior to his becoming councillor would not disqualify him. According to learned counsel, since section 44(1)(e) is a penal provision which disqualifies a councillor, who is either duly elected or nominated, the same must be strictly construed. The learned counsel further urged that no reasonable opportunity was given to the petitioner to defend himself and both the authorities below as well as the learned Single Judge has not given any finding as to the time when the alleged illegal construction was undertaken by the petitioner and, therefore, the matter deserves to be remanded to the Collector by setting aside the orders passed by both the authorities below as well as the learned Single Judge.
Mr. Chandurkar further submitted that although the respondent No. 5 has been elected on account of the vacancy created due to disqualification of the appellant, in the event, the appeal is allowed the appellant is entitled to be reinstated as a councillor and as a Vice President of the Municipal Council by setting aside the election of respondent No. 5 as a councillor.
In support of his submissions, the learned counsel relied upon the following judgments.
i) Dattatraya Narhar Pitale v. Vibhakar Dinkar Gokhale*, 1975 Mh.L.J 701, ii) Umesh Dattatray Naik v. The Hon'ble Minister of State Ministry of Urban Development, 2008 (3) Mh.L.J 747, iii) Keshav Shankar Ekbote v. State of Maharashtra, 2006 (1) Mh.L.J 292, iv) Tolaram Relumal v. The State of Bombay, AIR 1954 SC 496, v) Baby Samuel v. Tukaram Laxman Sable, 1996 (1) Mh.L.J 9.
12. Mr. Khajanchi, learned counsel appearing for respondent No. 3 at the outset submitted that the Letters Patent Appeal is not maintainable since the petition filed by the appellant was maintainable under Article 227 of the Constitution of India in exercise of supervisory jurisdiction since the petition was not filed for enforcement of any fundamental right. In support of this submission, the learned counsel relied upon the judgment of the Division Bench of this Court in Uttam Ambadasrao Gawali v. State of Maharashtra, 2005 (3) Mh.L.J 550 and of the Apex Court in Surya Dev Rai v. Ramchander Rai, 2004 (1) Mh.L.J 633.
13. Without prejudice to the submission that the appeal is not maintainable, Mr. Khajanchi submitted that on a proper construction of section 44(1)(e) of the Act a councillor who has carried out illegal construction even prior to his becoming a councillor stands disqualified. He invited our attention to the statement of objects and reasons for introduction of section 44(1)(e) of the Act byway of amendment in the year 2002 and submitted that having regard to the statement of objects and reasons, it is clear that the legislature intended that even an illegal construction carried out by the councillor prior to his becoming a councillor would attract section 44(1)(e) of the Act.
14. According to learned counsel, section 16 of the Act prescribes disqualifications for a person to become councillor whereas section 44 prescribes additional disqualification. The learned counsel submitted that explanation to section 44 refers only to clause (a) and not to sub-section (e) of section 44(1). According to the learned counsel, if the principle of purposive construction is applied, the only interpretation which can be put on section 44(1)(e) is that even if the construction was undertaken by the councillor prior to his tenure, same would attract disqualification. The learned counsel further submitted that since section 44(1)(e) has been enacted to avoid conflict between the duty and interest and for the benefit of the Society the same can have retrospective effect thereby disqualifying a councillor who had done illegal construction prior to his becoming a councillor. Mr. Khajanchi further urged that both the authorities below have found that the illegal construction existed “in praesenti” and, therefore, the view taken by the learned Single Judge cannot be faulted. The learned counsel further urged that sufficient opportunity was given to the petitioner to defend himself and as such no interference is warranted by this Court in exercise of appellate jurisdiction. He, therefore, submitted that the appeal deserves to be dismissed.
In support of his submissions, the learned counsel relied upon the following Judgments;
i) Union of India v. Hansoli Devi, (2002) 7 SCC 273, ii) Zile Singh v. State of Haryana, (2004) 8 SCC 1.
15. Mrs. S. Wandile, the learned A.G.P adopted the submissions made by Mr. Khajanchi and submitted that the ratio laid down in Edwin Britto's case (supra) is squarely applicable in the present case and, therefore, the appeal deserves to be dismissed.
16. Mr. Dubey, learned counsel for respondent No. 4 adopted the submissions made by Mr. Khajanchi on the aspect of the maintainability of appeal as well as on merits. The learned counsel submitted that section 44(1)(e) has been enacted with a view to avoid conflict between duty and interest and, therefore, interpretation of section 44(1)(e) by the learned Single Judge in Javed Patel ‘s case (supra) is the correct one and, therefore, no interference is called for in appeal.
17. In re-joinder, Mr. Chandurkar, the learned counsel for the appellant submitted that the Letters Patent Appeal is tenable since the petition was filed both under Articles 226 and 227 of the Constitution of India. In support of this submissions, the learned counsel relied upon the following judgments.
i) Shahu Shikshan Prasarak Mandal v. Lata P. Kore, 2008 AIR SCW 7409, ii) Union of India v. S.B Vohra, (2004) 2 SCC 150 : AIR 2004 SC 1402.
18. We have considered the submissions made by the learned counsel for the parties and perused the record as well as the Judgments relied upon.
19. In order to appreciate the rival contentions it would be appropriate to quote the relevant sections namely sections 16 and 44(1)(e) of the Act and the explanation to section 44. They read thus:
“Section 16. Disqualifications for becoming Councillor.— (1) No person shall be qualified to become a Councillor whether by election or nomination, who—
(a-1) has been so disqualified by or under any law,—
(i) for the time being in force for the purpose of elections to the Legislature of the State:
Provided that no person shall be disqualified on the ground that he is less than twenty five years of age, if he has attained the age of twenty one years.
ii) made by the legislature of the State of Maharashtra; or:
(a) has been convicted by a Court in India of any offence and sentenced to imprisonment for not less than two years, unless a period of five years or such lesser period as the State Government may allow in any particular case, has elapsed since his release; or
(aa) has at any time after the commencement of the Maharashtra Municipalities and other Provisions (Amendment) Act, 1974, (Mah. IV of 1974) (XLV of 1860), been convicted of an offence punishable under section 153-A, or sub-section (2) or (3) of section 505, of the Indian Penal Code, unless a period of five years has elapsed since the date of such conviction; or
(ab) Has been convicted of an offence punishable under the Untouchability (Offences) Act, 1955 (XXII of 1955) and sentenced to imprisonment for any term or fine unless a period of (six years), has elapsed since his release; or
(ac) has been convicted by a Court in India of any offence involving moral turpitude unless a period of (six years) has elapsed since the date of such conviction; or,
(b) has been removed from office under section 42 and (six years) have not elapsed from the date of such removal, unless he has, by an order made by the State Government in this behalf, been relieved earlier from the disqualification arising on account of such removal from office; or
(ba) has been found guilty of misconduct in the discharge of his duties, or being guilty of any disgraceful conduct while holding the office of the President or Vice-President of the Council unless the period of disqualification provided under section 55B has lapsed.”
(c) is an undischarged insolvent; or
(d) is of unsound mind and stands so declared by a competent Court; or
(e) has voluntarily acquired the citizenship of a foreign State or is under any acknowledgment of allegiance or adherence to a foreign State; or
(f) is a Judge; or
(g) is a subordinate officer or servant of Government or any local authority or holds an office of profit under Government or any local authority; or
(ga) if, having held any office under any Government or local authority has, whether before or after the commencement of the Maharashtra Municipalities and other Provisions (Amendment) Act, 1974, (Mah. IV of 1974), been dismissed for misconduct, unless a period of five years has elapsed since his dismissal; or
(h) is in arrears (otherwise than as a trustee) of any sum due by him to the Council after the presentation of bill therefor to him under section 150: or
(ha) has not paid any sums due, whether surcharged or charged, under the provisions of the Bombay Local Fund Audit Act, 1930 Bom. XXV of 1930;
(i) save as hereinafter provided, has directly or indirectly, by himself or his partner, any share or interest in any work done by order of a Council or in any contract with or under or by or on behalf of a council; or
(j) save as hereinafter provided, has directly or indirectly, by himself, or his partner any, share or interest in any transaction of loan of money advanced to, or borrowed from, any officer or servant of the Council.
(k) has more than two children:”
“section 44(1)(e): 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 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;
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 terms for which he is elected or nominated.’
20. From a bare perusal of section 44(1)(e) of the Act it is clear that a councillor is disqualified to hold office as such if at any time during his term of office (emphasis supplied) he 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 or the rules or bye-laws framed under the said Acts. Upon a plain and literal interpretation of section 44(1)(e) of the Act, the only conclusion that can be drawn is that in order to attract disqualification, illegal or unauthorised construction must have been made during his term of office. Any other interpretation would render the words “if any time during his term of office” otiose. It is also well settled principle of interpretation that the interpretation of a provision of a statute which would render the words in the provision otiose should be avoided. Section 16 of the Act prescribes disqualification for becoming a councillor whether by election or nomination and in terms of section 44(1)(a) a councillor who has been duly elected or nominated is also disqualified to hold the office if he becomes subject to any of the disqualifications specified in section 44 except clause (h) of subsection (1) of section 44.
21. We are unable to hold that the ratio of the judgment of Edwin Brittos's case (supra) is attracted in the present case. In the said case, the learned Single Judge of this Court considered the scope of section 16(1-D) of Bombay Municipal Corporation Act, 1888 and held that whether the construction was prior to election or not was not significant and disqualification under section 16(1-D) of the Act was attracted even if the construction was undertaken prior to the election. Section 16(1-D) of the said Act reads thus:—
“16(1-D). 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 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; and 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. Such disqualification shall be for the reminder of his term as a Councillor from the date of the declaration of such structure to be illegal or unauthorised 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.”
22. From a bare perusal of section 16(1D), it is clear that the disqualification is attracted if the councillor has constructed or constructs any illegal or unauthorised structure. In the section the words “if at any time during his term of office” are not found. In the absence of these words in the said section, the learned Judge has held and in our opinion rightly that disqualification for a Councillor is attracted even if construction is undertaken prior to his becoming the councillor. Therefore, in our considered opinion, the reliance placed on behalf of the respondents upon the Judgment in Edwin Britto's case is misplaced. Moreover, it is well settled that the interpretation of the provision in one statute cannot be the foundation for interpretation of the provision in another statute unless the provisions are in pari materia. If the interpretation sought to be placed upon section 44(1)(e), as contended by the respondents, is accepted, the same would render the words “during the term of the office” otiose. We are, therefore, unable to accept the submissions made on behalf of the respondents that whether the construction was undertaken by the Councillor prior to his becoming councillor or during his tenure as a Councillor, is irrelevant for attracting disqualification under section 44(1)(e) of the Act. We, therefore, agree with the view taken by Dharmadhikari, J. that the words “has constructed or constructs” need to be understood in the background of the provisions of section 44(1)(e) of the Act and that the interpretation of section 16(1D) of the Bombay- Municipal Corporation Act by learned Single Judge in Edwin Britto's case would not be relevant for interpreting the words “has constructed or constructs” used in section 44(1)(e) of the Act.
23. Mr. Chandurkar is justified in placing reliance upon the Judgment in the case of Tolaram Relumal's case (supra), in which, it has been held that it is a well settled rule of construction of penal statutes that if two possible and reasonable constructions can be put upon a penal provision, the Court must lean towards that construction which exempts the subject from penalty rather than the one which imposes penalty and it is not competent to the Court to stretch the meaning of an expression used by the Legislature in order to carry out the intention of the Legislature.
24. Insofar as the Judgment in Hansoli Devi's case (supra) relied upon by Mr. Khajanchi is concerned, the same does not advance the case of the respondents. In the said Judgment, it has been held that if the plain meaning of the language of the statute leads to anomalies, injustices and absurdities, then the Court may look into the purpose for which the statutes has been brought and would try to give a meaning, which would adhere to the purpose of the statute. In the said Judgment, the Apex Court referred the case of Aswini Kumar Ghose v. Arabinda Bose, AIR 1952 SC 369 in which it has been held it is not a sound principle of construction to brush aside words in a statute as being in apposite surplusage if they can have appropriate application in circumstances conceivably within the contemplation of the statute. The Apex Court also referred to the Judgment in Quebec Railway, Light Head and Power Co. Ltd. v. Vandry, AIR 1920 PC 181 in which the Privy Council observed that the legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the legislature will not be accepted except for compelling reasons. In our opinion, the said Judgment does not advance the case of the respondents.
In Zile Singh's case relied upon by Mr. Khajanchi, the Apex Court has held that it is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective effect and it is not necessary that an express provision be made to make a statute retrospective and the presumption against retrospectivity may be rebutted by necessary implication especially in a case where the new law is made to cure and acknowledged evil for the benefit of the community as a whole. The ratio laid down in the said Judgments can never be disputed but in view of the words “during the term of his office” appearing in section 16(1) of the Act, we find it difficult to hold that the ratio laid down in Zile Singh's case is of any help to the respondents. No doubt the legislature is competent to enact law and disqualify a councillor for his illegal acts committed prior to his tenure but such an exercise must be undertaken by the legislature by enacting the provisions laying down disqualification in clear terms. In the absence of the words “if at any time during the tenure of his office” in section 16(1) of the Act, arguments advanced on behalf of the respondents would have to be definitely accepted and then it would have been possible to hold that any illegal construction undertaken by any councillor even before his tenure as a councillor would attract disqualification. But the above mentioned words clearly disclose the intention of the legislature that illegal construction must have been undertaken by the councillor during the tenure of his office in order to attract disqualification.
25. Insofar as the statement of objects and reasons relied upon by Mr. Khajanchi in support of interpretation which he has to put on section 44(1)(e) is concerned, we are unable to place reliance upon the same in view of the clear language of section 44(1)(e) of the Act.
26. Insofar as the Judgment in Vidyadhar Mathane's case relied upon by Mr. Sohoni is concerned, the same does not also advance the case of the respondent No. 1 in writ petitions inasmuch as in the said case the Division Bench of this Court has held that in view of explanation to section 44 of the Act, the petitioner was rightly disqualified. The facts in the said case are clearly distinguishable and the interpretation of section 44(1)(e) did not fall for consideration before the Division Bench.
27. In view of the above, we have no hesitation to hold that in order to attract disqualification under section 44(1)(e) of the Act, illegal or unauthorised construction violating the provisions of the Act, or the Maharashtra Regional and Town Planning Act, 1966 or the rules or bye-laws framed under the said Acts, must have been carried out by a Councillor, either by himself, his spouse or his dependent during the term of his office and consequently any construction undertaken prior to his tenure cannot be a ground to disqualify the councillor. We answer the reference accordingly.
28. At this stage, we would like to deal with the submission made by Mr. Khajanchi and Mr. Dubey on behalf of the respondents in the appeal that if said interpretation is accepted, the same would result in conflict between the duty and interest. If a councillor undertakes illegal construction prior to his becoming councillor, there is bound to be conflict between the interest and duty. But it is for the legislature to step in and make appropriate amendment in the Act to meet such a situation. The Courts are expected to interpret the law enacted by the legislature by following the settled principles of interpretation. After considering the provisions of the Act we have held that section 44(1)(e) can be only interpreted in the manner we have held. If the legislature thinks that there is a lacuna, the legislature would be well within its powers to make appropriate amendment in the Act.
29. In the light of the findings given above, we shall now proceed to deal with the Writ Petitions 4910/2008, 4911/2008 and Letters Patent Appeal No. 320/2008.
30. Insofar as the Writ Petition No. 4911/2008 is concerned, the learned Single Judge has come to the conclusion that illegal construction was carried out in the year 1990 much prior to the petitioner becoming the councillor. This being the position, in the light of the findings given by us, no purpose would be served by placing the matter before the learned Single Judge or by remanding the matter to the Collector, Akola. Since the issue involved stands concluded in favour of the petitioner, the impugned orders dated 27-5-2008 and 23-10-2008 passed by both the authorities below are liable to be quashed and set aside and are accordingly quashed and set aside. Since we have set aside the disqualification of the petitioner, the petitioner is entitled to put in the same position in which he was prior to his removal in view of the ratio laid down by the Apex Court in Baby Samuel's case (supra). Accordingly, the petitioner is directed to be restored to the office of the Councillor of Ward No. 8 of Municipal Council, Balapur.
31. Insofar as Writ Petition No. 4910/2008 is concerned, the learned Single Judge has clearly held that the Collector as well as the State Government has not given any finding as to when the alleged illegal construction was undertaken. In view of the findings given by us, before passing any order on the application for disqualification, it would be necessary to find out the period during which the illegal construction was carried out. Since no finding has been given by the Collector or the learned Single Judge, we deem it appropriate to remand the matter to the Collector, Akola to decide the application afresh after giving an opportunity to the parties to place the materials on record regarding the period during which illegal construction was undertaken. The Collector, Akola shall decide the application seeking disqualification of the petitioner filed by respondent No. 1 after giving an opportunity to both the parties. The parties shall appear before the Collector, Akola on 30th March, 2009 at 3.00 p.m The parties will not be entitled to any further notice from the Collector, Akola. The Collector, Akola shall decide the application for disqualification expeditiously and in any case within a period of three months from the date of appearance of the parties before him. Since no finding has been rendered by the authorities regarding the period of construction, the impugned orders dated 27-5-2008 and 3- 11-2008 are liable to be quashed and set aside and are hereby quashed and set aside and the petitioner is restored forthwith to the office of Councillor of Ward No. 20 of Municipal Council, Balapur. Rule is made absolute, in the aforesaid terms with no order as to costs.
32. We shall now deal with Letters Patent Appeal No. 320/2008. Mr. Khajanchi has challenged the maintainability of the appeal preferred by the appellant. In our considered opinion, the issue is squarely covered in favour of the appellant by the Judgment of the Apex Court in Shahu Shikshan Prasarak Mandal v. Lata P. Kore, 2008 AIR SCW 7409 relied by Mr. Chandurkar, the learned counsel for the appellant. In the said Judgment, the Apex Court has considered several Judgments of the Apex Court including the case of Mavji C. Lakum v. Central Bank Of India., 2008 (7) SCALE 32 in which the Apex Court held that since the writ petition was filed under Article 226 of the Constitution of India and in the grounds taken in the petition the petitioner had alleged that the order of the Tribunal was arbitrary, unreasonable, unjust and perverse, the writ petition was maintainable under Article 226 of the Constitution of India and consequently the Letters Patent Appeal was maintainable. Considering the facts in Shahu Shikshan Prasarak Mandal's case, the Apex Court held that since not only the petition was filed under Articles 226 and 227 of the Constitution of India but it was also averred that the order passed by the Tribunal was arbitrary, unreasonable, unjust and perverse, the petition filed under Article 226 was maintainable. In Writ Petition No. 2203/08 the petitioner has specifically averred that the impugned orders were perverse, contrary to the principle of natural justice and also to the settled principles of law. Moreover, the ground of denial of reasonable opportunity to defend the petitioner, has also been urged. Moreover, the interpretation of section 44(1)(e) fell for consideration before the learned Single Judge. The writ petition was styled as under Articles 226 and 227 of the Constitution of India. Therefore, in our considered opinion, the writ petition was maintainable under Articles 226 and 227 of the Constitution of India and, therefore, the present Letters Patent Appeal is maintainable.
33. Insofar as the Judgment in Surya Deo Rai (supra) relied upon by Mr. Khajanchi is concerned, we are unable to place reliance upon the same in support of the submission of Mr. Khajanchi that the Writ Petition was under Article 227 of the Constitution of India for the reasons stated above. We have already held that the Writ Petition was maintainable under Articles 226 and 227 of the Constitution of India and, therefore, the said Judgment does not advance the case of the respondent Nos. 3 and 4.
34. Insofar as the Judgment in Uttam Gawali's case (supra) is concerned, the same also does not advance the case of the respondents since in the said petition, the Division Bench considered the nature of the petition and the relief sought in the petition was maintainable under Article 227 of the Constitution only and, therefore, held that the Letters Patent Appeal was not maintainable. As stated above, since we have held that the petition filed by the appellant under Articles 226 and 227 was maintainable, the said Judgment does not also help the respondent Nos. 3 and 4.
35. Having held that the Letters Patent Appeal is maintainable we shall now deal with its merits. Both the authorities below as well as the learned Single Judge has not given any finding regarding the period of illegal construction carried out by the appellant. Since we have held that a Councillor cannot be disqualified for carrying out illegal construction prior to his tenure as a councillor in terms of section 44(1) of the Act, the impugned orders dated 27-5-2008 and 3-11-2008 passed by the Collector and the State Government and the Judgment and order dated 18-6-2008 passed by the learned Single Judge in Writ Petition No. 2203/2008 are liable to be quashed and set aside and are hereby quashed and set aside. Matter is remanded to the Collector, Yavatmal to decide the application filed by respondent No. 4 for disqualification of the appellant after giving opportunity to both the parties to place on record the material showing the date of illegal construction. The Collector, Yavatmal shall decide the application expeditiously in the light of the findings given above and in accordance with law expeditiously and in any case within a period of three months from the date of appearance of the parties before him. The parties shall appear before the Collector, Yavatmal on 30th March, 2009 at 3.00 p.m and they will not be entitled to any separate notice.
On account of the order of disqualification against the appellant, the appellant stood disqualified and in the mean time election to Ward No. 8 of Municipal Council, Digras was held and respondent No. 5 was elected. Since the disqualification of the appellant has been set aside, in view of the ratio laid down by the Apex Court in Baby Samuel's case (supra) relied upon by Mr. Chandurkar, the appellant would have to be restored as the Councillor. However, since the election has already been taken place and respondent No. 5 has been duly elected and functioning as Councillor it would be just and proper not to disturb the status quo by removing respondent No. 5 as Councillor at this stage but to direct that in the event, the application for disqualification of the appellant filed by respondent No. 4 is dismissed by the Collector, the appellant would be restored to the office of the Councillor and also to the office of the Vice President which he was holding. In Baby Samuel's case the Apex Court in a case arising under the very same Act has held that since the order of disqualification of the appellant was set aside he was entitled to be put back in the same position from which he was removed. The ratio of the said case is squarely applicable in the present case. Therefore, in the event, if the appellant succeeds the appellant would be entitled to be restored as a Councillor and Vice President of Municipal Council, Digras. Subject to the order that will be passed by the Collector, Yavatmal the respondent No. 5 would be entitled to continue as a Councillor. In the event, the order passed by the Collector is in favour of the appellant, the appellant shall be restored as a Councillor and Vice President and respondent No. 5 shall cease to be a Councillor.
36. Letters Patent Appeal No. 320/2008 is disposed of in aforesaid terms with no order as to costs.
37. At this stage Mr. Sohoni, the learned counsel appearing for respondent No. 1 in Writ Petition No. 4910/2008 and 4911/2008 seeks stay of the orders of this Court for a period of eight weeks in order to enable respondent No. 1 to obtain appropriate orders from the Apex Court.
38. The prayer has been opposed by Mr. Joshi, the learned counsel for the petitioners in both these writ petitions.
39. Having regard to the findings given by us in the Judgment, we find no ground to grant stay sought for by respondent No. 1 in both the Writ Petitions. Hence, the prayer for stay is rejected.
Order accordingly.