REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   4056    OF 2019

(Arising out of SLP(C) No. 12385 of 2018)

SAMPADA YOGESH WAGHDHARE            .... APPELLANT(S)

VERSUS

THE STATE OF MAHARASHTRA & ORS.    .... RESPONDENT(S)

JUDGMENT

K.M. JOSEPH, J.

1. Leave granted.

2. The  appellant  who  was  elected  as  a

Municipal  Councillor  was  later  elected  as

President of the Council on 11.02.2015.  On the

ground  that  the  husband  of  the  appellant  had

carried  out  unauthorized  constructions,  the

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appellant came to be disqualified under Section

44(1)(e)  of  the  Maharashtra  Municipal  Council

Nagar  Panchayat  and  Industrial  Township  Act,

1965  (In  short  “Maharashtra  Municipal  Council

Act”).  Section 44(1)(e) reads as follows:

“[(e) has  constructed  or  construct  by himself,  his  spouse  or  his  dependent, any  illegal  or  unauthorised  structure violating the provisions of this Act, or the  Maharashtra  Regional  and  Town Planning Act, 1966 or the rules or bye- laws framed under the said Acts; or has directly or indirectly been responsible for, or helped in his capacity as such Councillor in, carrying out such illegal or unauthorized construction or has by written  communication  or  physically obstructed  or  tried  to  obstruct,  any Competent Authority from discharging its official duty in demolishing any illegal or unauthorised structure:]”

3. The  disqualification  was  done  on  the

basis  of  application  dated  26.09.2016  by  the

second respondent.  Initially, the Collector by

order  dated  04.05.2017  found  the  appellant

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disqualified.   The  appeal  carried  by  her  was

unsuccessful.   She  challenged  the  statutory

orders in a writ petition before the High Court.

The High Court by the impugned order dismissed

the petition.

4. We  heard  the  learned  counsel  for  the

parties.

5. Mr. Vinay Navare, learned senior counsel

appearing  for  the  appellant,  pointed  out  that

husband of the appellant, who allegedly carried

out the unauthorized constructions, had deemed

permission within the meaning of Section 45(5)

of the Maharashtra Municipal Council Act.  It is

further  contended  that  the  Court  may  consider

that  carrying  out  illegal  activity  attracts

penal provision and it is a grave matter and the

impugned  order  could  not  be  sustained.   He

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further  submitted  that  a  perusal  of  Section

44(1)(e) would show that the appellant cannot be

held responsible even if her spouse had put up

illegal structures.

6. Per contra, the learned counsel for the

respondents essentially contended that the court

may proceed on the basis that the construction

which has been carried out on the basis of the

so-called deemed provision may not be sufficient

to disqualify the appellant.  However, they only

contended that admittedly the appellant carried

out the construction of temporary structure.

7. Rebutting  the  contention  of  the

respondents regarding her husband having carried

out temporary constructions, it is submitted by

appellant that the impugned orders did not bear

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out any specific consideration of the same.  The

matter  relates  to  disqualification  which

requires greater care.   

8. The  first  contention  which  we  would

address is that merely proceeding on the basis

that her husband put up the structures, it is

not  sufficient  to  attract  Section  44(1)(e)  of

the Maharashtra Municipal Council Act.  We are

afraid that the contention of the appellant in

this regard cannot be sustained.  A perusal of

Section  44(1)(e)  would  show  that  it  falls  in

three parts.   

9. The  first  limb  of  Section  44(1)(e)

declares  inter  alia  that  if  a  Councillor  has

constructed  or  constructs  by  himself  [which

would  also  include  a  construction  by  a  lady

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Councillor], it would invite the wrath of the

provision  and  it  suffices  to  disqualify  the

Councillor.   This  is  no  doubt  subject  to

construction being illegal or unauthorized, that

is,  in  violation  of  the  provisions  of

Maharashtra Municipal Council Act or Maharashtra

Regional or Town Planning Act (In short ‘MRTP

Act’) or the rules or bye-laws made under the

said  Act.   Further,  in  order  to  attract  the

first limb, it is sufficient if the spouse of

the Councillor or the dependent carries out any

illegal  or  unauthorized  construction  as

aforesaid.   In  short,  if  the  Councillor,  his

spouse or dependent carries out any illegal or

unauthorized  construction  as  aforesaid,  it

suffices  to  incur  disqualification  for  the

Councillor.  We have to take Section 44(1)(e) as

it is.  The vires of the said provision is not

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questioned.   On  a  plain  reading  of  the

provision,  it  is  not  relevant  to  consider

whether the Councillor was in any manner party

to the construction which is made either by her

spouse or dependent.  The policy underlying the

provisions is to ensure that the highest level

of probity is maintained by the Councillor and

nearest members of the Councillor’s family.  It

does not require the Councillor knowing the fact

of the construction being made by her spouse or

dependent.  We have to take the law as it is and

fulfil the intention of the Legislature.

10. The  second  limb  of  Section  44(1)(e)

provides that if a Councillor had directly or

indirectly been responsible for or helped in his

capacity as such Councillor in carrying out such

illegal  or  unauthorized  construction,  the

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Councillor  becomes  amenable  for  action  under

Section 44(1)(e).  The second limb does not deal

with the construction by the Councillor, spouse

or dependent.  But insofar as any such illegal

or  unauthorized  construction  is  carried  out

resulting in the Councillor being disqualified

is concerned, the direct or indirect involvement

of the Councillor or his help in the matter has

to be established.  It has to be established

that  the  Councillor  has  been  directly  or

indirectly responsible or helped in his capacity

as such Councillor in carrying out of illegal or

unauthorized  construction.   The  third  limb  of

Section 44(1)(e) has the following effect:

If  a  Councillor  by  a  written

communication obstructed or tried to obstruct

any competent authority from discharge of his

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official duty in demolishing any illegal or

unauthorized  construction,  the  Councillor

would  incur  disqualification  under  Section

44(1)(e).   The  last  limb  would  also  be

attracted  if  the  Councillor  has  physically

obstructed or tried to obstruct any competent

authority from discharging its official duty

in  demolishing  any  illegal  or  unauthorized

construction.   Thus,  the  Legislature  has

apparently distinguished between  illegal or

unauthorized  construction,  illegal  or

unauthorized  structure  being  constructed  by

the Councillor’s spouse or by dependents as

it  was  the  legislative  intention  that  the

Councillor  will  not  carry  out  any  such

construction  and  he  would  also  be  in  a

position  to  prevent  construction  either  by

his spouse or a person who is dependent on

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him.  The fact that embargo is against the

construction  by  the  dependent  and  not  any

relative or person not dependent on him would

also  indicate  that  illegal  construction  by

the spouse or dependent stand on a different

footing  from  persons  who  may  not  be  so

closely related to the Councillor.  

11. The words “such illegal or unauthorized

construction”  occurring  in  the  second  limb  of

Section 44(1)(e) could be said to refer to the

construction made by the Councillor, his spouse

or the dependent, and in such a case, the words

“directly or indirectly responsible for” and the

words “or helped in his capacity as Councillor”,

would  have  to  be  applied.   Such  an

interpretation,  in  our  view,  would  produce

unreasonable  results.  When  the  Councillor

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constructs  by  himself,  the  words  “or  has

directly  or  indirectly  responsible  for”,  “or

helped in his capacity as such Councillor” does

not bear any meaning.  The plain meaning of the

first limb of Section 44(1)(e) is that in the

case of construction by the Councillor himself,

which  is  illegal,  it  would  result  in

disqualification  being  incurred.   The

requirement of the Councillor being directly or

indirectly being responsible for or helping in

carrying  out  of  such  construction  in  the

capacity of Councillor in the case of the spouse

or  dependent  also  is  not  the  statutory

requirement.   Having  regard  to  the  close

relationship  between  the  spouse  and  the

Councillor on the one hand and the dependent and

the  Councillor  on  the  other  hand,  the  words

“carrying  out  such  illegal  or  unauthorized

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construction”  has  reference  to  construction

which  violates  the  provisions  of  the  Town

Planning Act, the MRTP Act or the Rules and the

Bye-laws framed under those provisions.  Having

disposed  of  the  said  contention  of  the

appellant, we must proceed to consider the other

contentions.

12. It  is  true  that  disqualifying  the

Councillor, is a serious matter.  Councillors of

local  bodies,  after  the  73rd amendment  to  the

Constitution,  are  democratically  elected

representatives of the people at the grass root

level.  It is undoubtedly also true that in the

case of an Election Petition, the case against

the  respondent  must  be  strictly  proved.

However, Section 44(1)(e), which is ordained by

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the  Legislature,  requires  reasonable

interpretation,  and  if  the  ingredients  are

established, it must be given full play.

13. As already noted, the construction made

by the husband of the appellant falls into two

parts.  Construction has been made on the basis

of  deemed  permission.   In  regard  to  deemed

permission,  the  contention  raised  by  the

respondents  apparently  based  on  a  regulation

that  before  commencing  construction,  even  if

there is deemed permission, a notice was to be

served on the local body, may not apply, as it

is  not  in  dispute  that  the  said  regulation

itself is not applicable to the case at hand.

This necessarily means that the case built up

based on deemed permission not being effective,

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and  therefore,  there  was  unauthorized

construction,  cannot  be  pressed  against  the

appellant and we also need not deal with the

same.

14. The only question we are called upon to

decide is the effect of temporary construction

which had been made.  There is no dispute that

if  temporary  constructions  are  made  it  would

also fall within the mischief of Section 44(1)

(e).  In other words, if temporary construction

or  structure  have  been  illegally  made  by  the

Councillor,  spouse  or  dependent,

disqualification follows.

15. We do not find merit in the contention of

the appellant that as unauthorized construction

also brings in its wake criminal action, action

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under Section 44(1)(e) will not lie.  Section

44(1)(e)  creates  an  independent  liability  or

rather  creates  disqualification  as  provided

thereunder.   This  is de  hors the  criminal

action.  There is nothing brought to our notice

to conclude that action under Section 44(1)(e)

must  be  preceded  by  a  criminal  action  and

conviction  thereunder.   Equally,  the  argument

that  if  disqualification  is  incurred  under

Section 44(1)(e) since unauthorized construction

can  be  visited  under  law  creating  criminal

liability,  action  under  Section  44(1)(e)  will

not lie.  We are of the view that this argument

has no merit and Section 44(1)(e), as it stands,

is  neither  dependent  on  a  criminal  action

preceding it nor is the court to be influenced

by  the  fact  that  making  an  unauthorized

construction will have penal consequences.

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16. The  only  contention  which  remains  is

regarding  the  temporary  structures.   Our

attention was drawn to the application produced

at page 55 of the SLP paper book.  It is pointed

that out that construction for which permission

was sought and in respect of which the deemed

permission  has  been  claimed,  were  not  in

relation  to  temporary  construction.   In

particular, our attention was drawn to Column 26

which seeks details about the materials to be

used in the construction.  As against the column

roof, it is stated ‘RCC:  The floors are shown

as ‘ceramic tiles’, against column walls, it is

said ‘stone masonary’ and against Columns it is

written  ‘RCC’.   Our  attention  was  invited  by

respondents  to  the  following  paragraph  in  the

order passed by the Collector which appear to

set out the contentions of the appellant:

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“Shed for the temporary residence of the workers is constructed and for  that  the  permission  of  the Municipal  Council  is  not necessary.   However,  even  for this no evidence was adduced.”

From this, conclusion is sought to be drawn

that the temporary constructions were made and

the case of the appellant was that no permission

is necessary.  In fact, more than one temporary

construction  was  actually  made,  it  is  pointed

out on behalf of the respondents.  The order of

the Collector would show that as per the report

of the Sub Divisional Officer, the constructions

were  carried  out,  and  out  of  which,  5  were

temporary  and  which  were  no  doubt  removed  by

Yogesh Waghdhare.

17. Learned senior counsel for the appellant

would  submit  that  in  a  matter  relating  to

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disqualification  the  case  and  finding  against

the  returned  candidate  must  have  been  more

specific and clear.  We are of the view that

having  regard  to  the  order  which  has  been

passed, we do not think that any case is made

out for interference.  There is no case raised

by  the  appellant  that  for  temporary

construction, permission was obtained.  Appeal

will stand dismissed.  No order as to costs.

…………………………………J. (Ashok Bhushan)

                               ……………………………………J.                                  (K.M. Joseph)

New Delhi; Dated: April 22, 2019

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