1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4514 OF 2011 Sunil Mahajan residing at 10/142, Bharani Sadan, Behind Radhakrishna Talkies, Ichalkaranji, Taluka Hatkanangale, Dist.Kolhapur .. Petitioner Versus 1] Subhash Rambhau Kurkute residing at 21, Near Aksa Masjid, Ligade Mala, Ichalkaranji, Taluka Hatkanangale Dist. Kolhapur, 2] Collector, Kolhapur, 3] Ichalkaranji Municipal Council, through Chief Officer, Hatkanangale, Dist.Kolhapur 4] State of Maharashtra through Principal Secretary, Urban Development Deptt., Mantralaya, Mumbai 5] Smt.Varsha Dipak Dhere .. Respondents Mr.A.A.Kumbhakoni with Mr.Surel Shah for petitioner Mr.Prashant Kulkarni for respondent No.5 2 Mr.S.A.Rajeshirke with Prabhakar Jadhav for respondent No.1 Ms.P.S.Cardozo, AGP for State. CORAM : S.C.Dharmadhikari, J. Reserved on : 4th August 2011 Pronounced on : 6th September 2011. ORAL ORDER:- 1] This petition under Articles 226 and 227 of the Constitution of India is directed against the orders disqualifying the petitioner as Member of Ichalkaranji Municipal Council on the same allegations as are made against the councillors, petitioners in other petitions. 2] It need not be repeated that the petitioner aftter his election is alleged to have made construction on an immovable property in violation of FSI and building by-laws. It appears that a report was forwarded by the Chief Officer of the Municipal Council of Ichalkaranji on 4th March 2010 but that 3 report did not mention any specific illegality. Thereafter, the Collector directed the Chief Officer to carry out the actual measurement and submit report in specific format showing the area for the years 2004-05, 2008-09 and actual measurement with remarks, if any. That report came to be forwarded through the Section Engineer of the Municipal Council and it is stated that the property bearing No.23/407 is belonging to the petitioner but it is a vacant plot. There is other property bearing No.22/635/1 which has some construction which as per the assessment record of the year 2004-05 admeasures 237.57 sq.mtrs. It consists of one factory shed of 195.81 sq.mtrs and three rooms including one office, one store and one yarn checking room. If the assessment for the year 2008-09 is considered, the area under construction is 536 sq.mtrs consisting of two factory sheds admeasuring 452.00 sq.mtrs and five rooms consisting of two yarn checking rooms, two office rooms and one store room. According to the 4 Collector, this means that the petitioner has added one office and one yarn checking room and this additional construction is shown in the report of measurement carried out by Mr.Khot on 16th July 2010. According to the Collector, the actual measurement carried out by the said Mr.Khot, shows an additional construction of tin shed of 6.30 x 22.70 meter raising the area under construction to 696.47 sq.mtrs from 536 sq.mtrs as recorded in the assessment for the year 2008-09. It is observed that the petitioner did not bother to apply and obtain building permission before carrying out additional construction. 3] It is further held that the assessment record for the year 2007-08 shows new construction without permission by the petitioner and his brother in the form of one factory shed and one office room. Further the construction of one tin shed was found at the actual measurement but not recorded in the 5 assessment register for the year 2008-09, which has happened after the election of the petitioner as Councillor. 4] While there is a reference made to the affidavit of petitioner and one Sandip Laxman Nikam of Krishnal Construction and referring to the measurement of the property carried out by the said Krishnal Construction, yet, the area of two brothers admeasures 297.24 sq.mtrs and 251.05 sq.mtrs thus totalling to 548.29 sq.mtrs, which is slightly higher than the area recorded in the year 2008-09. Petitioner's affidavit has been referred to and in this context, this is what is held by the Collector:- “ If we total the area of two properties no. 635/4 and 635/1 it come as 548.29 sq.mtrs. It is slightly higher than the area shown in assessment record of 2008-09. Mr.Sunil Mahajan in his affidavit 6 dated 5th August 2010 (well after the measurement carried out by Sectional Engineer Baban Krishnaji Khot) mentioned that the construction of property No.22/635/1 completed in 2003 and that of 635/4 in January 2005. He tried to establish that all his work was completed prior to his election to Municipal Council, Ichalkaranji held in November 2006. First part of his submission about the construction of 237.57 sq.mtrs in the suit property in the year 2003 is properly reflected in the assessment register of the year 2004-05, but second part of his submission that remaining construction of 297.24 sq.mtrs was also completed in January 2005 did not reflect in next year's assessment (of on going process). If he could have informed about construction to municipal authorities, it would have been reflected in yearly assessment of next year. The record of Municipal 7 Council, on the contrary show that the new construction had been recorded suo motu by council in the year 2007-08 about property No.635/4 as 298.43 sq.mtrs. That means, the construction was completed in the year 2007-08 and recorded in assessment. It clearly prove that this unauthorised construction of Mr.Sunil Mahajan took place after his election to Municipal Council that was held in November 2006. His affidavit is silent about the record of assessment of 2007-08. Obviously, he has no defence about it. His affidavit also did not mention about the tin shed which was found during the actual measurement taken by Section Engineer Baban Khot on 16th July 2010. His learned Advocate did not touch this aspect in his cross examination of Mr.Khot nor it find in his final argument.” 8 5] It is on this basis and on appreciation of documentary evidence namely, assessment record for the years 2004-05 and 2008-09 so also the affidavits of the petitioner and the measurement report that the Collector concludes that the petitioner incurs disqualification and, therefore, is liable to be disqualified as a member of Municipal Council. 6] I have reproduced the above findings only to appreciate the contentions of learned Counsel for the petitioner that the only documents on which reliance is placed are assessment extracts but without considering the fundamental purpose that the assessment is only for the purpose of computation of tax to be paid by the occupier and cannot be read in support of the so called unauthorised construction. Further, the findings ignore the stand of the Ward Officer that there is no change in the nature of construction as it existed in the year 2001. It is 9 then urged that there was an omnibus and general complaint about unauthorised construction of all municipal councillors of the Municipal Council. No specific details and particularly those meeting the requirements of section 44(1)(e) of the Municipalities Act have been set out in the complaint or other documents. The complainant has never stepped into the box. The onus was entirely on the petitioner Councillor and it was for him to disprove and falsified the allegations by producing relevant material. Assuming this approach was tenable in law, yet, the argument is that when the officer was made available for cross examination and his evidence read as a whole does not indicate any construction which can be termed as illegal or unauthorised and particularly prohibited or contrary to or violative of law, then, a serious charge of putting up unauthorised construction cannot be held to be proved. There is much substance in this contention. 10 7] As far as the subject property is concerned, the report clarifies that the property which is bearing No.10 /142 belongs to Shardabai Mahajan, whereas property bearing No.22/635/1 belongs to the petitioner Sunil Mahajan and his brother Vinay. The only finding or remark against the construction that it is carried out in the property belonging to the petitioner and his brother and that the required distances as per the Rules and by-laws regarding construction have not been maintained. 8] No where the stand of the petitioner on affidavit has been referred to, inasmuch as, a specific case was pleaded by the petitioner that as far as property bearing No.22/635/1 is concerned, in City Survey record, it is numbered as 021/00 and the other property bears No.22/635/18. 9] I have summoned the records which has been referred to by the Collector and it is clear that he has only relied upon 11 the assessment record. However, even the assessment record is relied upon selectively. It is not that only assessment record of 2008-09 is relied upon. It appears that the Collector on his own has made reference to extracts of certain years but those have not been produced. In such circumstances, if the petitioner on his own comes and deposes that both properties are one and the same and they belong to him and his brother Vijay, that property has construction which was completed in the year 2002, according to the petitioner, (Property No. 22/635). As far as property bearing No.22/635/1 is concerned, that construction was completed in the year 2005. The petitioner's specific case was that there was no additional construction in these two properties and the construction already carried out and completed was by his brother, Vinay. His brother Vinay also has filed affidavit supporting his stand and stating clearly that he has carried out subject construction and that it was completed prior to his brother being elected as 12 Councillor. This affidavit has been filed on 26th July 2010. 10] In addition thereto, the petitioner cross examined the concerned officer, Baban Khot who is working in Engineering Branch of the Municipal Council and he stated that property bearing No.22/635 is assessed for payment of municipal taxes from 2000-01. He admits that this property also belongs to Vinay Mahajan viz., brother of the petitioner. He further admits that construction of this property has been noted in the year 2000-01. On a query as to whether construction in the year 2000-01 is admeasuring 536 sq.mtr he denies the same. He also denies the suggestion that the entire construction on these properties has been noted in the assessment year 2004-05 and even disputes the area. 11] However, this witness very pertinently and in answer to a specific question as to who carried out the construction on the 13 subject property states that he is not aware of the same. On another specific question as to whether he has personally seen the building permission and other documents in relation to this property, the witness says NO. On a question as to whether unless he peruses the licence/ permission register for the relevant year, he would not be able to say as to whether the construction in the year 2000-01 has been carried out with prior permission or not, the witness replies in the affirmative. The witness also replies in the affirmative the question that there is a factory on the property and that is functional from the year 2000. He denies the other suggestion that there are no changes in the assessment records after 2000-01 and he also states in answer to a suggestion that it is not true that there is no increase in the construction on the property. This witness states that he will be unable to say as to how old is the construction on the subject property. In answer to every question and whether he will be able to state that as to on 14 what basis the entries have been made in the assessment years 2000-01, 2004-05 and 2008-09, the witness answers that he is not aware of the same. He will also not be able to state that as to whether these entries are correct or not. On such statements made by the witness, who is Section Engineer of the Municipal Council, the Collector still relies upon his report dated 16th July 2010. Not only that the Collector refers to the contents of the same but makes certain additional observations and renders further findings and conclusions. The Collector possibly loses track of the fact that the admitted position is that the property has been jointly held by the petitioner and his brother. The petitioner has very fairly stated that the construction on the said property admeasures 536.00 sq.mtrs but that is a total construction made on both properties. Therefore the total area occupied by construction of his properties, according to the petitioner, measures 536 sq.mtrs whereas, according to the Collector, it is slightly more 15 and it is 548.29 sq.mtrs. Thus, if the construction has not increased even in the year 2008-09, so also, the evidence of the Sectional Engineer not corroborating the allegations against the petitioner, one fails to understand as to how the petitioner can be disqualified. The Collector's findings are rather strange, inasmuch as, if Municipal Council of Ichalkaranji carries out continuous assessment on yearly basis and in between there are two general comprehensive all encompassing assessments which took place in the years 2004-05 and 2008-09, according to the Collector, so also admitted position being that the property is jointly owned, then, how the actual measurement carried out on 16th July 2010 and the findings therein can be relied upon to disqualify the petitioner is not clear to me at all. 12] The Collector relies upon these measurements and holds that additional construction of tin shed of 6.22 x 32.70 16 sq.mtrs raises the area under construction to 696.47 sq.mtrs from 536 sq.mtrs recorded in the assessment year 2008-09, but before concluding that this is an additional construction without any building permission, makes no reference to any document or material to support the same. At the same time, the impugned order holds that the assessment record for the year 2007-08 shows new construction without permission by petitioner and his brother in the form of one factory shed and one office room. If this construction is without permission and there is further construction carried out of one tin shed but not recorded in the assessment register for the year 2008-09, then, these acts must be attributed to the petitioner or his spouse or an dependent. The petitioner has through out maintained that the construction was carried out by his brother Vinay and this was supported by the statement of Vinay. It is also stated by both that they are not dependent on each other but carry on separate business. . If these are the state of 17 affairs, then, the construction must be either in the year 2007-08 or in the year 2008-09 but that must be noted somewhere viz., either in the assessment record, if that is a relevant piece of evidence or at least in the measurement report. However, this fact is referred to in the actual measurement carried out by Baban Khot, according to the Collector. At the same time, he competely ignores and brushes aside the evidence of Mr.Khot, which has been extensively referred by me hereinabove. Had care been taken to refer to this deposition and the statements therein, possibly conflicting and contrary findings would not have been recorded. 13] In such circumstances, it is clear that the essential ingredient of sub-clause (e) of sub-section 1 of Section 44 has not been satisfied. It is clear that there is no material to hold that the construction was carried out by the petitioner or 18 anybody dependent upon him. If the material documents and depositions have been ignored and the abovequoted findings and conclusions are conflicting and contradictory, then, to my mind, the impugned order cannot be sustained. The finding that it is clearly proved that the unauthorised construction was carried out by the petitioner, has not been rendered on cogent and satisfactory materials but rather ignoring the fact that the petitioner was joint owner of the property along with his brother. Therefore, something more was necessary to be established viz., that the construction was carried out by the petitioner and not by his brother or that his brother was dependent upon him. Further, the first and most essential ingredient that the construction was carried out after the petitioner was elected as Councillor and during the term of his office, has not been proved. A perusal of the order as a whole does not reveal that this essential pre-condition has been satisfied. 19 14] For all these reasons, the impugned order cannot be sustained and it must be quashed and set aside. Rule is made absolute in terms of prayer clause (B). (S.C.Dharmadhikari, J)