1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4531 OF 2011 Balasaheb Ganpati Kalagate Residing at Ward No.2, House No.736, Jain Bhavani Mandal, Gavbhag, Ichalkaranji, Dist. Kolhapur .. Petitioner Versus 1] Sagar Anandrao Chalke, Residing at Ichalkaranji, Taluka Hatkanangale, Dist. Kolhapur 2] Megha Sagar Chalke, residing at Ichalkaranji, Taluka Hatkanangle, Dist. Kolhapur. 3] Collector, Kolhapur, 4] Ichalkaranji Municipal Council, through Chief Officer, Ichalkaranji Taluka, Hatkanangale, Dist. Kolhapur. 5] State of maharashtra & Ors. .. Respondents Mr.A.A.Kumbhakoni, Senior Advocate with Mr.Surel Shah i/b. Surel Shah for petitioner Mr.Amit Borkar for respondent No.2 Mr.P.S.Cardozo, AGP for State Respondent Nos.3 to 5. 2 CORAM: S.C.DHARMADHIKARI, J. DATE : 6th September 2011. ORAL ORDER:- 1] Rule. Respondents waive service. Heard parties. 2] By this petition under Article 226 and 227 of Constitution of India, the petitioner challenges the order passed by the Principal Secretary, Urban Development Department, Maharashtra State dated 6th June 2011 allowing an Appeal preferred by the respondent Nos. 1 and 2 herein under section 44(4) of the Maharashtra Municipal Council, Nagar Panchayat and Industrial Township Act, 1965 (for short Municipalities Act). 3] By the order under challenge the Principal Secretary allowed the appeals, preferred by respondent Nos. 1 and 2 and remanded case back to the Collector, Dist. Kolhapur to decide the issue of disqualification of respondent Nos.1 and 2 in the light of the 3 observations made by the said Principal Secretary in the impugned order. In other words, while allowing the appeals and setting aside the order of the Collector, Dist. Kolhapur in Disqualification Petition No. 983 of 2010 dated 6th June 2011, the proceedings have been remitted back for fresh consideration. The petitioner original applicant/ complainant is aggrieved by this order and has filed the instant petition. 4] Relevant facts are that the elections to the Ichalkaranji Municipal Council - respondent No.4, were held in the year 2006 and respondent Nos. 1, 2 and 3 were elected as Councillors. On 23rd November 2009, respondent No.2 Mrs.Megha Sagar Chalke, wife of respondent No.1 was elected as President of the Municipal Council. 5] The petitioner filed a Disqualification Petition No.983 of 2010 alleging therein that respondent Nos. 1 and 2 be disqualified on the ground of unauthorised construction having been carried out by a 4 cooperative society of which respondent No.2 is the Chairman. It was alleged that one Rajmata Jijau Mahila Yantramag Audyogik Sahakari Sanstha Ltd., Ichalkaranji (Society for short) is a cooperative society registered under the Maharashtra Cooperative Societies Act, 1960 on 2nd January 1999. There were 34 members in this society till the year ending 31st December 2006. Respondent No.3 was a member of the said society. Thereafter, she was also the President of the said society. It is alleged that on 12th May 2006, the society purchased a plot of land from one Sagar Chalke and Sachin Chalke. The manner in which the transaction took place and, thereafter, the financial assistance obtained by the society is set out and it is stated that on all the documents which are relevant for the purpose of the controversy, the signature of second respondent appears as a Chairman. It is stated that this society had obtained a building permission on 4th July 2009. This society is functioning within the municipal limits and from the property bearing No.1045/5/2 and 1045/5/3. The society has constructed a powerloom shed. This is the very land/ property 5 purchased by the society. In the records and particularly for the assessment year 2008-09 there is an entry about additional construction on this plot of land. Since this construction has been commenced and the same has been noted as above so also the respondent No.2 being Chairman of the said society that she incurs disqualification as provided by section 44(1)(e) of the Municipalities Act. Alleging thus, it was prayed that the petitioner be declared to be disqualified. 6] On this petition, notices were issued and certain preliminary objections were raised by respondent Nos. 1 and 2. It is not necessary to go into preliminary issues because ultimately, after the replies were filed and evidence was recorded, the respondent No.3 Collector, disqualified the respondent Nos. 1 and 2 under the subject provision. He also relied upon the measurement report which was prepared by the Engineer and filed before him, which dealt with the unauthorised construction. Aggrieved and dis-satisfied with this order of the 6 Collector, respondent Nos. 1 and 2 preferred an appeal to the State Government and once again it is not necessary to deal with any intervening events because by the impugned order the appeal has been allowed and the matter stands remitted back to the Collector, Kolhapur. Aggrieved by this order, the instant petition has been filed. 7] It is contended by Mr.Kumbhakoni, learned Counsel appearing for petitioner that the impugned order is ex facie erroneous because the appellate authority has proceeded on the basis that it is only the State Government which can deal with the respondent No.2 as she is elected as President of the Municipal Council. It is argued that section 55A of the Municipalities Act provides for removal of President and Vice-President by Government. Whereas section 55B provides for disqualification for continuing as a Councillor or become Councillor on removal of President and/or Vice-President. Mr.Kumbhakoni submits that both provisions have no application in the facts of the present case. There is a finding of fact recorded that 7 the construction is unauthorised. That there was one construction which was existing but there is an additional construction noted in the assessment record and thus construction is an continuing act. There is no permission obtained for this additional construction. Therefore, the Collector has rightly held that the construction being unauthorised and the respondent Nos. 1 and 2 being responsible for carrying out such illegal or unauthorised construction or in any event they have helped the society in carrying out the same in their capacity as Councillors, that they were rightly disqualified. The appellate authority has unnecessarily taken note of supervening developments and events viz., of election of respondent No.2 as President of Council. That has nothing to do with disqualification as a Councillor inasmuch as it is nobody's case that the respondent No.2 is not a Councillor. That she was a Councillor and that is how she was elected from amongst the Councillors as President is not in dispute. She is not directly elected President. Therefore, she can be disqualified under section 44(1)(e) and if that be so, just because she has become a 8 President would not mean that the Collector has no jurisdiction to deal with the application and the complaint made by the petitioner. For all these reasons and this being the only ground for remanding the case back to the Collector, the impugned order deserves to be quashed and set aside. 8] On the other hand, Mr.Jahagirdar, learned Senior Counsel appearing for the contesting respondent has submitted that the impugned order requires no interference because all that the State Government has directed is a remand of proceedings back to the Collector. That was because section 44 (1)(e) is attracted only when respondent No.2 is a councillor and acts coming within purview of this clause are committed during the term of her office as a Councillor. If the construction had been carried out or continuing, then, she could have been dis-qualified. In this case, the finding is if the construction had already started before the election or the commencement of the term of office of respondent No.2, then, there is 9 no positive act or assistance or help in the construction attributed to the respondent No.2. In these circumstances and when it is not respondent No.2 who has carried out the construction but an independent legal entity has done it, then, the responsibility cannot be foisted on this councillors. Assuming there was any inaction on their part, it does not mean that they are responsible for or helped the society in carrying out unauthorised construction. There is no question of any vicarious responsibility or liability in this case. For all these reasons, the petition deserves to be dismissed. 9] With the assistance of the learned Counsel appearing for parties I have perused the impugned orders and complaint made by the petitioner. The petitioner complainant does not dispute that the construction is carried out by Cooperative Society. The allegation is that both respondent Nos. 1 and 2 were directly or indirectly responsible for this unauthorised and illegal construction. The registration of the society and other events have been noted. The 10 elections to the society were held on 11th July 2006 and nine members were elected unopposed, including respondent No.2 before this Court, Megha Chalke. She was further elected as Chairperson of the society and was authorised to mortgage the property of the society with the Government. She was thus part of the managing committee of the society and later on became its Chairperson. The society has carried out the construction without obtaining permission from the competent authority. The illegal construction was carried out in the year 2007-08, when both respondents were Councillors of the Municipal Council Ichalkaranji. The documents were produced and later on reports were called for from the Chief Officer and Section Engineer of the Municipal Council. 10] The reply to these allegations was that the society had constructed the building and there were necessary permissions and, therefore, it cannot be said that it is unauthorised and illegal. In any event, the construction being carried out by independent legal entity, 11 It must be established conclusively that respondents are directly or indirectly responsible for carrying out such illegal or unauthorised construction or helped in carrying out the same in their capacity as Councillors. Therefore, the argument was that the misdeeds of the society cannot be said to be that of its members or the respondent No. 2 - Councillor. 11] The Collector noted all these contentions and concluded that the illegal construction of the society was effected during the period/term of office of respondent Nos. 1 and 2. As far as the respondent Nos. 1 and 2 being directly or indirectly responsible for the same, the finding of the Collector is that considering the facts of the case and documentary evidence, they are directly or indirectly responsible for the illegal construction of the society and also helped the society in carrying out such illegal and unauthorised construction. He based this conclusion on the fact that the construction work was in progress as on 16th July 2010, when both respondents were Councillors. His 12 reasoning is that the society would not have dared to undertake such construction if Mrs.Megha Chalke was not member and Chairperson of the Council along with her husband. Both have direct stake in the society and the reason is that the property of first respondent Sagar and his brother Sachin was sold to the society. Incidentally, , the second respondent Megha was member and Chairperson of the society, which is profit making venture. Considering that Ichalkaranji is a textile and powerloom hub, they have used their authority as Councillor of Ichalkaranji Municipal Council and hence indirectly responsible for illegal construction and helped the society to carry out illegal and unauthorised construction. After recording such a conclusion and dealing with arguments that in the meanwhile Megha was elected as President of the Municipal Council and she holds that post at the time of filing of disqualification petition, that she cannot be proceeded with under section 44(1)(e) of the Municipalities Act, that the Collector held that this has nothing to do with the duties and functions as President of the Council. The disqualification is alleged 13 as that of a Councillor and merely because she has been elected as President subsequently, cannot be a bar to disqualify her as Councillor. 12] In appeal, several contentions were raised on behalf of the respondent Nos. 1 and 2. Dealing with them, the Principal Secretary Urban Development Department of State of Maharashtra (II) UDD (Appellate Authority) noted some facts and circumstances emerging from the record. The Principal Secretary held that the property belongs to the society. The respondents are the elected councillors and working as such from November 2006 and from 23rd November 2009 to 6th June 2011, the second respondent Megha was President of the Ichalkaranji Municipal Council. It has been pointed out from the record that the society has obtained a NOC from the Chief Officer, Muncipal Council, Ichalkaranji on 7th June 2006 for carrying out construction. However, there is a dispute as to whether this NOC dated 7th July 2006 could be said to be valid as there is a dispute going 14 on with regard to the same. Further, this NOC has not been proved before the Collector. In any event, as far as the society is concerned, it cannot rely upon the letter dated 4th July 2009 on the basis that it is a building permission. There is no completion certificate either. Therefore, this construction, according to the authorities, appears to be an unauthorised and illegal construction. It is stated that the construction was carried out after the respondent Nos. 1 and 2 have been elected as Councillors of the subject Municipal Council. However, the further finding that the respondents are directly or indirectly responsible for such an act of the society or whether they have helped the society in carrying out such illegal or unauthorised construction are two independent circumstances or grounds for disqualification. It must be held that the respondent Nos. 1 and 2 are directly or indirectly responsible for or they have helped in their capacity as such Councillors in carrying out such illegal or unauthorised construction. As far as these aspects are concerned, the appellate authority has perused the record in its entirety. Even if 15 Mrs.Megha Chalke was on the board of directors of the said society, once she has produced a copy of letter of resignation dated 7th May 2007, that resignation does not appear to have been proved. There are some defects therein, upholding the contentions that the said Megha has resigned as Chairperson of the Board of Directors, therefore, she may have continued as a Director on the Board of Directors of the said society and that the construction was continuing even when the said Megha was declared elected as President of the Municipal Council. However by that alone, it will not be possible to conclude that she was directly or indirectly responsible for the unauthorised construction. According to the appellate authority, her association as a Director or Chairperson by itself and without anything more cannot be a circumstance to conclude that she has been directly or indirectly responsible for the unauthorised and illegal construction by the society. Similarly, it cannot also be held that she has helped in carrying out such illegal or unauthorised construction merely because she was a office bearer or President of the Society. The appellate 16 authority has held that the events commencing from acquisition of the property by the society, the application made by it for construction, the NOC and permissions obtained in that behalf and the role of the said Megha Chalke in obtaining the same and assuming that there were no permissions or NOC obtained yet, whether the said Megha was a party to the decisions and resolutions of the society in relation to the said construction are matters which have not been probed and investigated by the Collector at all. In other words, whether there was any conflict of interest and duty when the said Megha Chalke functioned as a Councillor and also as a office bearer and President of the said society or whether by her acts of omission and commission, she can be held to be directly and indirectly responsible for construction, are crucial and relevant matters. If she has helped in carrying out the construction, which was unauthorised or illegal, then, all facts and circumstances must be brought on record so as to establish a link between the role of Megha Chalke as Councillor with that of an office bearer of Society. Whether she is party to the 17 decisions and resolutions taken at meetings and whether she is signatory to the documents in relation to the construction are all matters which remain undecided despite the order of the Collector. It is on such count that the Principal Secretary orders a remand back to the Collector. 13] It is not as contended by Mr.Kumbhakoni and merely to find out whether the provisions of section 44(1)(e) or sections 55A or 55B of the Municipalities Act are applicable, that the remand has been ordered. The order of remand must be read in its entirety. That the Collector should also examine as to whether section 44(1)(e) is the applicable provision or the provisions referred to above would be attracted or not that remand is directed in this case. The Principal Secretary has not concluded that these are the applicable provisions and not section 44(1)(e) of the Municipalities Act. The words “and/or” preceding the further words which appear in para 7 of the impugned order so also in direction No.2 in the operative part thereof 18 would clearly indicate that the Principal Secretary has not concluded the matter either way. He has only invited attention of the Collector to the provisions and whether the respondent No.2 can still be disqualified as a Councillor when she was later on elected as a President of the Council is also a matter which requires consideration according to appellate authority. Therefore, it is erroneous to contend and argue that the State Government has concluded the matter that Megha Chalke cannot be disqualified under section 44(1)(e) of the Municipalities Act. Ultimately, this is an order of remand and while directing remand certain observations have been made. These observations, by no stretch of imagination, conclude the issue or bind the Collector in any manner. The matter is still open for scrutiny by the Collector but his order has been held to be vitiated because he has not considered the germane and relevant material pertaining to the disqualification of the respondent. In these circumstances, while directing a limited remand and that too in the case of respondent No.2 to this petition (Megha Chalke) that the attention of the Collector was 19 invited to the provisions which enable even the State Government to remove the President. It is not as if the State Government has held that because the said Megha Chalke has been later on elected as President that she cannot be removed as Councillor. All that the order emphasises is that all contentions must be re-examined on remand. 14] The appellate authority has rightly allowed the appeal of respondent No.1 and the petitioner does not question that order nor any arguments have been canvassed before me to question the same. Although the prayers in the petition are in relation to both appeals which have been allowed by the impugned order, nowhere has it been argued that the order of allowing the appeal of respondent No.1 should be anyway disturbed or interfered with. Even the grounds in this petition would indicate that it is aggrieved by the order of appellate authority insofar as the appeal of respondent No.2 that the jurisdiction of this court under Article 226 and 227 of the Constitution of India is invoked. 20 14] Having found that the appellate authority has not committed any error in allowing appeal of respondent No.1 as he was never part of the society which made the construction that his disqualification could not have been sought. Nothing has been brought on record to show that he has been directly or indirectly responsible or has helped the society in carrying out the alleged unauthorised or illegal construction. Once, he is not associated with the society either as a member or an office bearer and the only allegation was that his land was sold to the society that an inference was drawn against him, the order disqualifying him has been rightly quashed and set aside. As far as respondent No.2 is concerned, her appeal is allowed but at the same time the remand is ordered. The distinction in the words and situations “being directly or indirectly responsible for an unauthorised or illegal construction” or “helping the said construction in the capacity as Councillor” requires to be borne in mind and whether that aspect is overlapping or merely because there is some inaction that an 21 inference can be drawn that there is help rendered, are matters which merit serious consideration. The words “directly or indirectly been responsible for” or “helped in his capacity as such Councillor in carrying out such illegal or unauthorised construction” are matters which must be gone into indepth and properly. Any casual inference or conclusion and finding without proper discussion is not permissible in the scheme of the Statute and particularly in a matter of disqualification of an elected representative. Therefore, when such is the purport of the order of remand passed by the appellate authority, to my mind, with the clarification that I have given above, there is no need to interfere with the said order in writ jurisdiction. There is no error of law apparent on the face of record or any perversity committed in directing remand of the proceedings. In the result, the petition fails. Rule is discharged. No costs. (S.C.Dharmadhikari, J) 22 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4946 OF 2011 Mrs. Megha Sagar Chalake Ichalkaranji, Taluka Hatkanangale Dist. Kolhapur. .. Petitioner versus 1] Balasaheb Ganpati Kalagate Residing at Ward No.2, House No.736, Jain Bhavani Mandal, Gavbhag, Ichalkaranji, Dist. Kolhapur 2] Ichalkaranji Municipal Council, through Chief Officer, Ichalkaranji Taluka, Hatkanangale, Dist. Kolhapur. 3] Collector, Kolhapur, 4] State of maharashtra, through Ministry of Urban Development, Mantralaya, Mumbai .. Respondents Mr.A.A.Kumbhakoni, Senior Advocate with Mr.Surel Shah i/b. Surel Shah for petitioner Mr.Amit Borkar for respondent No.2 Mr.P.S.Cardozo, AGP for State Respondent Nos.3 to 5. 23 CORAM : S.C.DHARMADHIKARI, J. DATE : 6th September 2011. ORAL ORDER:- 1] This petition is filed by respondent No.2 in W.P.4531 of 2011. She is aggrieved by the order of remand passed in her appeal. For the reasons that have pursuaded me to uphold that order as assigned in Writ Petition No.4531 of 2011, this petition fails. Rule is, therefore, discharged. No costs. (S.C.Dharmadhikari, J).