The expression “has constructed” used in Section 10(1D) of the Maharashtra Municipal Corporations Act, 1949 would also include an illegal/unauthorized construction erected by the Councillor before being elected as a Councillor so as to attract disqualification: Bombay High Court.
On 23rd of March in the year 2021, The Bombay High Court passed a judgement in which it answered the queries of the division bench in respect to the Maharashtra Municipal Corporations Act, 1949. This was seen in the case of Sau. Pragati W/O Ajay Patil Vs Nagpur Municipal Corporation Through Commissioner, Nagpur and Another (Writ Petition No. 6236 Of 2019) and the case was presided over by The Honourable Mr. Justice Z.A. Haq, The Honourable Mr. Justice V.M. Deshpande and The Honourable Mr. Justice Amit B. Borkar.
FACTS OF THE CASE:
In the case, the facts of the case are that, Mrs. Tilottama Sanjay Kinkhede (Petitioner) and Mrs. Pragati Ajay Patil (Respondent) had contested elections and Mrs.Pragati Ajay Patil was declared elected. Mrs. Tilottama submitted representation under Section 10(1D) read with Section 12 of the Maharashtra Municipal Corporations Act, 1949 to the Municipal Commissioner contending that Mrs.Pragati and her husband Shri.Ajay Patil had carried out illegal and unauthorized construction at Forest Housing Society and had encroached over 1250 sq.ft. out of the property situated at Telangkhedi, Nagpur. Mrs.Tilottama prayed that inquiry regarding encroachment/illegal and unauthorized construction by Mrs. Pragati and her husband should be made and it be declared that the structures in question are illegal and unauthorized and a report be forwarded to the Civil Judge Senior Division, Nagpur as per the provisions of Section 12 of the Maharashtra Act No.LIX of 1949. The Municipal Commissioner caused an inquiry in the matter and passed an order prima-facie observing that some illegal/ unauthorized construction exists in the properties. The Municipal Commissioner referred the matter to the general body of the Municipal Corporation for appropriate decision regarding referring the matter to Civil Judge Senior Division. Writ petitions were filed in regards to the same and it further went to the division bench and the Division Bench opined that there appears to be conflict between the view taken in the judgment given in the case of Edwin Francis Britto..vs..Municipal Corporation, Greater Mumbai and the view taken in the judgment given in the case of Mallesh Shivan Shetty..vs..Kalyan-Dombivali Municipal Corporation.
The three points formulated by the Division Bench are as follows:
(A) Whether the expression ‘has constructed’ as used in Section 16 (1D) of the BMC Act and Section 10 (1D) of the MMC Act would include an unauthorized/illegal construction, erected by a Councillor, before being elected as a Councillor so as to attract the disqualification?
(B) Whether the expression “has constructed” would include an unauthorized construction already in existence, when acquisition of the property is made by the Councillor, whether before or after he assumes office as a Councillor?
(C) Whether the reference to the Judge, as provided for, in Section 18 of the BMC Act and Section 12 of the MMC Act, can be done by the Municipal Commissioner as a person being in charge of the Corporation, or is required to be done by the General Body of the Corporation?”
JUDGEMENT:
The court in its judgement answered each point respectively and accurately
For point(A), The court said that the expression “has constructed” used in Section 10(1D) of the Maharashtra Municipal Corporations Act, 1949 would also include an illegal/unauthorized construction erected by the Councillor before being elected as a Councillor so as to attract disqualification.
For point(B), the court said, that the expression “has constructed” used in Section 10(1D) of the Maharashtra Municipal Corporations Act, 1949 would include an illegal/unauthorized construction made by the Councillor, his spouse or his dependent, even if such illegal/ unauthorized construction is made before acquisition of the property by the Councillor, his spouse or his dependent. The expression “has constructed” used in Section 10(1D) of the Maharashtra Municipal Corporations Act, 1949 would not include an illegal/unauthorized construction made by any person other than the Councillor, his spouse or his dependent before acquisition of the property is made by the Councillor, his spouse or his dependent. However, the expression “has constructed” would include an illegal/unauthorized construction made by the Councillor, his spouse or his dependent even before acquisition of the property by the Councillor, his spouse or his dependent.
For point(C), The court said, Section 12 of the Maharashtra Municipal Corporations Act, 1949 does not confer any power on the Municipal Commissioner to act directly and make reference to Civil Judge Senior Division on his own. The Municipal Commissioner has to make reference to the Civil Judge Senior Division only on request made by general body of the Municipal Corporation.
The court places the case before the Division Bench for further consideration of the writ petitions.
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JUDGEMENT REVIEWED BY TANAV ZACHARIAH.