SAMPADA YOGESH WAGHDHAREversusTHE STATE OF MAHARASHTRA & ORS.

                         [2019] 6 S.C.R. 215                            215


              SAMPADA YOGESH WAGHDHARE                                  A
                                 v.
           THE STATE OF MAHARASHTRA & ORS.
                  (Civil Appeal No.4056 of 2019)
                          APRIL 22, 2019                                B
        [ASHOK BHUSHAN AND K.M. JOSEPH, JJ.]
      Maharashtra Municipal Council Nagar Panchayat and
Industrial Township Act, 1965:
      ss. 44(1)(e) – Disqualification under – For unauthorized          C
construction by the spouse of the Municipal Councillor/President
of the Council – Held: Disqualifying a Councillor i.e. a
democratically elected representative is a serious matter and the
case against such person must be strictly proved – However, s.
44(1)(e) requires reasonable interpretation – If ingredients of the
                                                                        D
provision are established it must be given full play – Illegal
temporary constructions/structures made by the Councillor, spouse
or dependent would fall within the mischief of s. 44(1)(e) resulting
in disqualification of the Councillor.
      s. 44(1)(e) – Nature of – Held: Section 44(1)(e) creates an
independent liability – The provision is neither dependent on a         E
criminal action preceding it, nor is the Court to be influenced by
the fact that making an unauthorized construction will have penal
consequences.
      Dismissing the appeal, the Court
                                                                        F
       HELD:1.1 Section 44(1)(e) of Maharashtra Municipal
Council Nagar Panchayat and Industrial Township Act, 1965 falls
in three parts. 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 Councillor], it
would invite the wrath of the provision and it suffices to disqualify   G
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 or the rules or bye-laws made under the said
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A     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. The policy underlying Section
B
      44(1)(e) 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.
      [Paras 8 and 9][220-B-G]
C           1.2 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 Councillor becomes amenable for
      action under Section 44(1)(e). The second limb does not deal
D     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
E     responsible or helped in his capacity as such Councillor in carrying
      out of illegal or unauthorized construction. [Para 10][220-G-H;
      221-A-B]
            1.3 The third limb of Section 44(1)(e) has the following effect:
      If a Councillor by a written communication obstructed or tried to
F     obstruct any competent authority from discharge of his 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
G     from discharging its official duty in demolishing any illegal or
      unauthorized construction. [Para 10][221-B-D]
           1.4 Thus the Legislature has apparently distinguished
      between illegal or unauthorized construction, illegal or
      unauthorized structure being constructed by the Councillor’s
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     SAMPADA YOGESH WAGHDHARE v. THE STATE OF                          217
               MAHARASHTRA & ORS.

spouse or by dependents as it was the legislative intention that       A
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 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
                                                                       B
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. [Para 10][221-D-E]
      1.5 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        C
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
would produce unreasonable results. When the Councillor
constructs by himself, the words “or has directly or indirectly        D
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       E
helping in carrying out 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              F
“carrying out such illegal or unauthorized 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. [Para 11][221-F-H; 222-A-B]
      1.6 It is true that disqualifying the Councillor, is a serious   G
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 also true that in the case
of an Election Petition, the case against the respondent must be

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A     strictly proved. However, Section 44(1)(e), which is ordained by
      the Legislature, requires reasonable interpretation, and if the
      ingredients are established, it must be given full play.
      [Para 12][222-C-D]
            1.7 If temporary constructions are made it would also fall
B     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. In
      fact, more than one temporary construction was actually made.
      The order of the Collector would show that as per the report of
      the Sub Divisional Officer, the constructions were carried out,
C     and out of which, 5 were temporary and which were no doubt
      removed. [Paras 14 and 16][222-G; 223-F-G]
            2. It is not correct that as unauthorized construction also
      brings in its wake criminal action, action under Section 44(1)(e)
      will not lie. Section 44(1)(e) creates an independent liability or
D     rather creates disqualification as provided thereunder. This is
      de hors the criminal action. There is nothing brought to the notice
      of the Court to conclude that action under Section 44(1)(e) must
      be preceded by a criminal action and conviction thereunder.
      Section 44(1)(e), as it stands, is neither dependent on a criminal
E     action preceding it nor is the court to be influenced by the fact
      that making an unauthorized construction will have penal
      consequences. [Para 15][222-H; 223-A-C]
            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4056
      of 2019.
F           From the Judgment and Order dated 19.04.2018 of the High Court
      of Judicature at Bombay in Writ Petition No. 4647 of 2018.
           Vinay Navare, Sr. Adv., Ms. Gwen Karthika, Ms. Abha R.
      Sharma, Advs. for the Appellant.
            Kunal Cheema, Nishant Ramakantrao Katneshwarkar, Amol
G
      Chitale, Mrs. Pragya Baghel, Advs. for the Respondents.
            The Judgment of the Court was delivered by
            K. M. JOSEPH, J. 1. Leave granted.
             2. The appellant who was elected as a Municipal Councillor was
H     later elected as President of the Council on 11.02.2015. On the ground
     SAMPADA YOGESH WAGHDHARE v. THE STATE OF                                 219
        MAHARASHTRA & ORS. [K. M. JOSEPH, J.]

that the husband of the appellant had carried out unauthorized                A
constructions, the 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        B
      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            C
      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        D
dated 04.05.2017 found the appellant 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.                        E

        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    F
activity attracts penal provision and it is a grave matter and the impugned
order could not be sustained. He 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      G
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.
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A           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 out any specific
      consideration of the same. The matter relates to disqualification which
      requires greater care.
B             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.
C
              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 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
D     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,
E     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 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.
F     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.
G            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 Councillor becomes amenable for action under Section 44(1)(e).
      The second limb does not deal with the construction by the Councillor,
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     SAMPADA YOGESH WAGHDHARE v. THE STATE OF                                   221
        MAHARASHTRA & ORS. [K. M. JOSEPH, J.]

spouse or dependent. But insofar as any such illegal or unauthorized            A
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
                                                                                B
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 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        C
      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           D
      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 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              E
      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        F
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 constructs by himself, the words “or has directly or
indirectly responsible for”, “or helped in his capacity as such Councillor”     G
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

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A     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
      construction” has reference to construction which violates the provisions
B
      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,
C     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 the Legislature, requires
      reasonable interpretation, and if the ingredients are established, it must
D     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
E     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, and therefore, there was unauthorized construction,
      cannot be pressed against the appellant and we also need not deal with
F     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
G     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
      under Section 44(1)(e) will not lie. Section 44(1)(e) creates an
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     SAMPADA YOGESH WAGHDHARE v. THE STATE OF                                 223
        MAHARASHTRA & ORS. [K. M. JOSEPH, J.]

independent liability or rather creates disqualification as provided          A
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
                                                                              B
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.
       16. The only contention which remains is regarding the temporary       C
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       D
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:                     E

      “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          F
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                    G
Waghdhare.
      17. Learned senior counsel for the appellant would submit that in
a matter relating to disqualification the case and finding against the
returned candidate must have been more specific and clear. We are of
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A     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.

B     Kalpana K. Tripathy                                      Appeal dismissed.




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