Sampada Yogesh Waghdhare vs The State Of Maharashtra

CIVIL APPEAL NO. 4056 OF 2019

(Arising out of SLP(C) No. 12385 of 2018)

SAMPADA YOGESH WAGHDHARE .... APPELLANT(S)

VERSUS

THE STATE OF MAHARASHTRA & ORS. .... RESPONDENT(S)

JUDGMENT

K.M. JOSEPH, J.

1. Leave granted.

2. The appellant who was elected as a

Municipal Councillor was later elected as

President of the Council on 11.02.2015. On the Signature Not Verified

ground Digitally signed by SANJAY KUMAR Date: 2019.04.22 that the husband of the appellant had 16:18:00 IST Reason:

carried out unauthorized constructions, the

1 appellant came to be disqualified under Section

44(1)(e) of the Maharashtra Municipal Council

Nagar Panchayat and Industrial Township 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 his dependent, any illegal or unauthorised structure violating the provisions of this Act, or the Maharashtra Regional and Town Planning Act, 1966 or the rules or bye- laws framed under the said Acts; or has directly or indirectly been responsible for, or helped in his capacity as such Councillor in, carrying out such illegal or unauthorized construction or has by written communication or physically obstructed or tried to obstruct, any Competent Authority from discharging its official duty in demolishing any illegal or unauthorised structure:]”

3. The disqualification was done on the

basis of application dated 26.09.2016 by the

second respondent. Initially, the Collector by

order dated 04.05.2017 found the appellant

2 disqualified. The appeal carried by her was

unsuccessful. She challenged the statutory

orders in a writ petition before the High Court.

The High Court by the impugned order dismissed

the petition.

4. We heard the learned counsel for the

parties.

5. Mr. Vinay Navare, learned senior counsel

appearing for the appellant, pointed out that

husband of the appellant, who allegedly carried

out the unauthorized constructions, had deemed

permission within the meaning of Section 45(5)

of the Maharashtra Municipal Council Act. It is

further contended that the Court may consider

that carrying out illegal activity attracts

penal provision and it is a grave matter and the

impugned order could not be sustained. He

3 further submitted that a perusal of Section

44(1)(e) would show that the appellant cannot be

held responsible even if her spouse had put up

illegal structures.

6. Per contra, the learned counsel for the

respondents essentially contended that the court

may proceed on the basis that the construction

which has been carried out on the basis of the

so-called deemed provision may not be sufficient

to disqualify the appellant. However, they only

contended that admittedly the appellant carried

out the construction of temporary structure.

7. Rebutting the contention of the

respondents regarding her husband having carried

out temporary constructions, it is submitted by

appellant that the impugned orders did not bear 4 out any specific consideration of the same. The

matter relates to disqualification which

requires greater care.

8. The first contention which we would

address is that merely proceeding on the basis

that her husband put up the structures, it is

not sufficient to attract Section 44(1)(e) of

the Maharashtra Municipal Council Act. We are

afraid that the contention of the appellant in

this regard cannot be sustained. A perusal of

Section 44(1)(e) would show that it falls in

three parts.

9. The first limb of Section 44(1)(e)

declares inter alia that if a Councillor has

constructed or constructs by himself [which

would also include a construction by a lady 5 Councillor], it would invite the wrath of the

provision and it suffices to disqualify the

Councillor. This is no doubt subject to

construction being illegal or unauthorized, that

is, in violation of the provisions of

Maharashtra Municipal Council Act or Maharashtra

Regional or Town Planning Act (In short ‘MRTP

Act’) or the rules or bye-laws made under the

said Act. Further, in order to attract the

first limb, it is sufficient if the spouse of

the Councillor or the dependent carries out any

illegal or unauthorized construction as

aforesaid. In short, if the Councillor, his

spouse or dependent carries out any illegal or

unauthorized construction as aforesaid, it

suffices to incur disqualification for the

Councillor. We have to take Section 44(1)(e) as

it is. The vires of the said provision is not 6 questioned. On a plain reading of the

provision, it is not relevant to consider

whether the Councillor was in any manner party

to the construction which is made either by her

spouse or dependent. The policy underlying the

provisions is to ensure that the highest level

of probity is maintained by the Councillor and

nearest members of the Councillor’s family. It

does not require the Councillor knowing the fact

of the construction being made by her spouse or

dependent. We have to take the law as it is and

fulfil the intention of the Legislature.

10. The second limb of Section 44(1)(e)

provides that if a Councillor had directly or

indirectly been responsible for or helped in his

capacity as such Councillor in carrying out such

illegal or unauthorized construction, the

7 Councillor becomes amenable for action under

Section 44(1)(e). The second limb does not deal

with the construction by the Councillor, spouse

or dependent. But insofar as any such illegal

or unauthorized construction is carried out

resulting in the Councillor being disqualified

is concerned, the direct or indirect involvement

of the Councillor or his help in the matter has

to be established. It has to be established

that the Councillor has been directly or

indirectly responsible or helped in his capacity

as such Councillor in carrying out of illegal or

unauthorized construction. The third limb of

Section 44(1)(e) has the following effect:

If a Councillor by a written

communication obstructed or tried to obstruct

any competent authority from discharge of his

8 official duty in demolishing any illegal or

unauthorized construction, the Councillor

would incur disqualification under Section

44(1)(e). The last limb would also be

attracted if the Councillor has physically

obstructed or tried to obstruct any competent

authority from discharging its official duty

in demolishing any illegal or unauthorized

construction. Thus, the Legislature has

apparently distinguished between illegal or

unauthorized construction, illegal or

unauthorized structure being constructed by

the Councillor’s spouse or by dependents as

it was the legislative intention that the

Councillor will not carry out any such

construction and he would also be in a

position to prevent construction either by

his spouse or a person who is dependent on 9 him. The fact that embargo is against the

construction by the dependent and not any

relative or person not dependent on him would

also indicate that illegal construction by

the spouse or dependent stand on a different

footing from persons who may not be so

closely related to the Councillor.

11. The words “such illegal or unauthorized

construction” occurring in the second limb of

Section 44(1)(e) could be said to refer to the

construction made by the Councillor, his spouse

or the dependent, and in such a case, the words

“directly or indirectly responsible for” and the

words “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

10 constructs by himself, the words “or has

directly or indirectly responsible for”, “or

helped in his capacity as such Councillor” does

not bear any meaning. The plain meaning of the

first limb of Section 44(1)(e) is that in the

case of construction by the Councillor himself,

which is illegal, it would result in

disqualification being incurred. The

requirement of the Councillor being directly or

indirectly being responsible for or helping in

carrying out of such construction in the

capacity of Councillor in the case of the spouse

or dependent also is not the statutory

requirement. Having regard to the close

relationship between the spouse and the

Councillor on the one hand and the dependent and

the Councillor on the other hand, the words

“carrying out such illegal or unauthorized 11 construction” has reference to construction

which violates the provisions of the Town

Planning Act, the MRTP Act or the Rules and the

Bye-laws framed under those provisions. Having

disposed of the said contention of 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 73rd amendment to the

Constitution, are democratically elected

representatives of the people at the grass root

level. It is undoubtedly also true that in the

case of an Election Petition, the case against

the respondent must be strictly proved.

However, Section 44(1)(e), which is ordained by

12 the Legislature, requires reasonable

interpretation, and if the ingredients are

established, it must be given full play.

13. As already noted, the construction made

by the husband of the appellant falls into two

parts. Construction has been made on the basis

of deemed permission. In regard to deemed

permission, the contention raised by the

respondents apparently based on a regulation

that 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 in dispute that the said regulation

itself is not applicable to the case at hand.

This necessarily means that the case built up

based on deemed permission not being effective,

13 and therefore, there was unauthorized

construction, cannot be pressed against the

appellant and we also need not deal with the

same.

14. The only question we are called upon to

decide is the effect of temporary construction

which had been made. There is no dispute that

if temporary constructions are made it would

also fall within the mischief of Section 44(1)

(e). In other words, if temporary construction

or structure have been illegally made by the

Councillor, spouse or dependent,

disqualification follows.

15. We do not find merit in the contention of

the appellant that as unauthorized construction

also brings in its wake criminal action, action 14 under Section 44(1)(e) will not lie. Section

44(1)(e) creates an independent liability or

rather creates disqualification as provided

thereunder. This is de hors the criminal

action. There is nothing brought to our notice

to conclude that action under Section 44(1)(e)

must be preceded by a criminal action and

conviction thereunder. Equally, the argument

that if disqualification is incurred under

Section 44(1)(e) since unauthorized construction

can be visited under law creating criminal

liability, action under Section 44(1)(e) will

not lie. We are of the view that this argument

has no merit and Section 44(1)(e), as it stands,

is neither dependent on a criminal action

preceding it nor is the court to be influenced

by the fact that making an unauthorized

construction will have penal consequences. 15

16. The only contention which remains is

regarding the temporary structures. Our

attention was drawn to the application produced

at page 55 of the SLP paper book. It is pointed

that out that construction for which permission

was sought and in respect of which the deemed

permission has been claimed, were not in

relation to temporary construction. In

particular, our attention was drawn to Column 26

which seeks details about the materials to be

used in the construction. As against the column

roof, it is stated ‘RCC: The floors are shown

as ‘ceramic tiles’, against column walls, it is

said ‘stone masonary’ and against Columns it is

written ‘RCC’. Our attention was invited by

respondents to the following paragraph in the

order passed by the Collector which appear to

set out the contentions of the appellant: 16

“Shed for the temporary residence of the workers is constructed and for that the permission of the Municipal Council is not necessary. However, even for this no evidence was adduced.”

From this, conclusion is sought to be drawn

that the temporary constructions were made and

the case of the appellant was that no permission

is necessary. In fact, more than one temporary

construction was actually made, it is pointed

out on behalf of the respondents. The order of

the Collector would show that as per the report

of the Sub Divisional Officer, the constructions

were carried out, and out of which, 5 were

temporary and which were no doubt removed by

Yogesh Waghdhare.

17. Learned senior counsel for the appellant

would submit that in a matter relating to

17 disqualification the case and finding against

the returned candidate must have been more

specific and clear. We are of the view that

having regard to the order which has been

passed, we do not think that any case is made

out for interference. There is no case raised

by the appellant that for temporary

construction, permission was obtained. Appeal

will stand dismissed. No order as to costs.

…………………………………J. (Ashok Bhushan)

……………………………………J. (K.M. Joseph)

New Delhi;

Dated: April 22, 2019

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