Nagpur: In a significant ruling, the Nagpur Bench of Bombay High Court said that illegal or unauthorized construction by Municipal Councillor/Corporator or spouses before being elected would attract disqualification as per Section 10(1D) of the Maharashtra Municipal Corporations Act, 1949.
The High Court, while dealing with the vexed issue of whether illegal construction done prior to election can lead to disqualification of the Corporator, interpreted that unauthorised construction by elected representatives of local bodies even prior to election would lead to disqualification. The ruling authored by Justice Haq also held that an elected Councillor cannot be subjected to extreme penal action of disqualification for illegal or unauthorised construction not undertaken by him, his spouse or dependent.
While hearing a plea filed by Tilottama Kinkhede against Pragati Ajay Patil challenging the latter’s victory in 2017 NMC polls from Prabhag 14-D, the court made it clear that Municipal Commissioner doesn’t have any power to directly make a reference to the civil court in case complaint is filed regarding illegal construction by Corporator. Patil claimed that alleged excess construction was done by a builder. The Municipal Commissioner had referred the matter to the General Body before forwarding the complaint to civil court which was challenged by both Kinkhede and Patil. Due to conflicting view taken by two division benches, the issue was referred to a larger bench to decide 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 unauthorised or illegal construction, erected by a Councillor, before being elected as a Councillor so as to attract the disqualification.
It was argued that the purpose behind this enactment was to curb the rising menace of unauthorised construction which had spread its tentacles. Corporation which was statutorily bound to ensure the same, but had miserably failed to check it, could not be seen to be protecting such acts in case they were found to have been done by its elected representatives. The High Court interpreted the expression “has constructed” to include illegal/unauthorised construction made by the Councillor, his spouse or his dependent even before acquisition of such property.
The High Court further held that 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 the General Body of the municipal corporation. The High Court made it clear that any aggrieved individual can raise the issue of disqualification of the elected representative on the ground of unauthorised construction.
Senior Counsel M G Bhangde and Adv Bhushan Mohta (Patil), Adv Amit Kinkhede (Kinkhede), Adv J B Kasat (NMC), In-charge GP Ketaki Joshi (State), Adv Shreerang Bhandarkar and Adv Sejal Lakhani appeared in the matter.