IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION PUBLIC INTEREST LITIGATION NO. 19 OF 2008 Sudhir Tukaram Chavan ..... ...... ......Petitioner V/s Brihanmumbai Munc. Corpon. & Ors. ...... ......Respondents. Mr.M.M.Vashi i/by M.P.Vashi & Associates, Adv. For the petitioner. Ms.S.Ajithkumar, Adv. For the respondent No.1. Ms.G.R.Shastri, AGP for respondent Nos.2, 3 & 5. Mr.Mayur Shetty i/by M/s.M.V.Kini & Co., Adv. For respondent No.4. Mr.P.K.Dhakephalkar i/by Mr.P.G.Parkar, Adv. For respondent No.6, CORAM: SWATANTER KUMAR, C.J. & A.P.DESHPANDE, J. DATED: 29th AUGUST 2008. ORAL JUDGMENT: (Per Deshpande, J.) This writ petition is alleged filed as public interest litigation by the petitioner who happens to be an ex-Municipal Councilor. The respondent No.6 is present Municipal Councilor from ward No.203 and has been elected as such as member of political party by name Shiv Sena. Respondent No.7 is Cooperative Society which administers and manages rationing shops. The respondent No.6 is an office bearer of respondent No.7-Society. The grievance made by the 1 petitioner in the instant petition is that respondent No.6 after he got elected as municipal councilor in elections held in February, 2007, has constructed an illegal and unauthorized structure on a plot of land reserved for recreational purpose and thereby incurred a disqualification under section 16(1D) of the Mumbai Municipal Corporation Act, 1888. Under the scheme of the act a councilor incurs disqualification if such councilor has constructed any illegal or unauthorized structure violating the provisions of the Corporation Act or the Mumbai Regional Town Planning Act or the rules and bylaws framed thereunder. The provisions further lay down that if a councilor is directly or indirectly found to be responsible or held in his capacity as such councilor in carrying out such an illegal or unauthorized construction shall stand disqualified for the remainder of his term as councilor. Section 18 of the act provides for a forum to adjudicate the dispute as to whether the councilor has incurred a disqualification under section 16 of the act. Section 18 reads thus: “18.Questions as to disqualifications to be determined by Chief Judge of the Small Causes Court:- Whenever it is alleged that any Councilor has become disqualified for office for any reason aforesaid, and such Councilor does not admit the allegation, or whenever any Councilor is himself in doubt whether or not he has become disqualified for office, such Councilor or any other Councilor may, and the Commissioner, at the request of the corporation, shall apply to the Chief Judge 2 of the Small Causes Court; and the said Chief Judge, after making such inquiry as he deems necessary, shall determine whether or not such Councilor has become disqualified for being a Councilor, and his decision shall be conclusive.” Perusal of section 18 makes it clear that locus to move an application is only to a Councilor and the corporation acting through the Commissioner to raise such a dispute. A dispute touching the disqualification under section 16 cannot be raised by a third party like the present petitioner. Section 18 further provides that Chief Judge of the Small Causes Court is appointed to make an inquiry with a view to determine whether or not such Councilor has become disqualified for being a Councilor. The decision of the Chief Judge, Small Causes Court has been given finality. On a notice being issued the respondents have put in appearance and filed affidavits in reply. Perusal of the affidavit filed by the Assistant Engineer of the Corporation reveals that a complaint was received from the petitioner about unauthorized construction being raised on the plot in question allegedly by respondent No.6 who is municipal Councilor. It is stated in the affidavit that copy of the complaint received from the petitioner was forwarded to the respondent No.6 and respondent No.6 was called upon to submit his reply thereto. In the reply so submitted by the petitioner he had stated that he had not raised any construction and the said construction was made much prior in point of time by one Smt.Nita Naik, the then Councilor. It is also said to have been 3 stated in reply that the construction was raised by members of a society under the leadership of Smt.Nita Naik and she had transferred the structure in favour of the respondent No.7-society. The corporation after perusal of reply and after making necessary inquiries found that the construction was illegal and unauthorized and hence issued notice under section 314 of the Act on 5.112.2007 with a view to demolish the said structure. It is also stated that with a view to demolish the said structure police protection was also sought for. It is thus asserted that the Corporation is taking appropriate action against the unauthorized and illegal structure consequent upon receipt of a complaint from the petitioner. It is also stated that the structure could not be demolished as interim stay is operating upto 31.8.2008 in some proceedings initiated by the society touching notice under section 314 of the Act. Lastly it is emphatically stated that the instant petition has been filed in private interest in as much as the present petitioner respondent No.6 belongs to the same political party. 2. Respondent No.6 as well has filed his reply wherein it is stated that the petition has been filed with ulterior motive on account rivalry between the petitioner and respondent no.6. It is claimed that respondent No.6 was granted candidature by Shiv Sena for the elections held in 2007 and on that count the petitioner is seeking disqualification of respondent No.6, the petition according to respondent No.6 has nothing to do with the public interest and is filed with a view to sub serve private interest of the petitioner. It is then 4 stated that the premises which are allegedly constructed by respondent No.6 are constructed much prior to 1994 and the same came to be transferred by one Smt.Nita Naik to the society in the year 1994. It is then stated that the petitioner has no concern with the construction in question and/or the ownership thereof. 3. In the above set of facts the petitioner has prayed for an order disqualifying respondent No.6 as municipal Councilor from ward No.203 under section 16 of the Act. Other ancillary reliefs are also claimed which are in the nature of demolition of illegal and unauthorized construction and other such directions. 4. Section 16 vests the jurisdiction to inquire into and determine whether any Councilor has become disqualified under section 16. The petitioner has also no locus to dispute the status of respondent No.6 as Councilor by moving a petition under section 18 before the Chief Judge, Small Causes Court as the statute has vested the power with the Chief Judge, Small Causes Court to make an inquiry as to whether the Councilor has incurred a disqualification under section 16(1D) of the Act. It will not be possible for this Court to make said inquiry in a public interest litigation. The statute also limits the locus for filing an application under section 18 by restricting it to the councillors of the Corporation acting through the Commissioner. Thus by entertaining this petition the petitioner cannot be provided with the locus which he does not have under the scheme of the Act. Having regard to the material placed on record by the parties we are 5 of the clear view that the present petition is wholly misconceived and cannot be termed as public interest litigation. Moreso, for the reason that the Corporation has already taken steps on a complaint made by the petitioner with a view to seek demolition of the illegal and unauthorized structure. So far as the aspect of disqualification is concerned neither the petitioner can seek such a relief nor this Court can grant the same as it would tantamount to circumventing the provisions of section 18 of the Act. In our considered view the instant public interest litigation has no merit. Hence the same is dismissed. CHIEF JUSTICE A.P.DESHPANDE, J. 6